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Estates and Trusts
University of Kansas School of Law
DeLaTorre, Phillip E.

                                                                 ESTATES & TRUSTS
                                                                             
 
I.            DEFINITIONS
A.     Administrator: Personal representative appointed by the court to administer the estate of an intestate.
B.      Attested Will: Will signed by witnesses.
C.     Codicil: Testamentary instrument executed with intent to revoke, modify, or republish a will.
D.     Disclaimer: Devisee’s refusal to accept his devise under a will.
E.       Executor: Personal representative named in a will.
F.       Holographic Will: Will in the testator’s handwriting.
G.     Issue: Direct lineal descendants (e.g., child, grandchild)
H.      Kindred: Collateral heirs (e.g., parent, sibling, uncle)
I.         Nuncupative Will: Oral will.
J.       Probate: Process to determine whether decedent died intestate and/or whether will is valid.
K.      Probate Estate: Everything belonging to decedent at time of death except property held in:
1.       Joint tenancy;
2.       Life insurance;
3.       Inter vivos trust (“living trust”)
L.       Renunciation: Heir’s refusal to accept his intestate share.
M.    Testamentary Disposition: Creating an interest that does not vest in the donee until the testator’s death, and testator may revoke at any time prior to death.
 
II.          INTESTATE SUCCESSION: Process of distributing decedent’s property pursuant to statute when decedent dies without a will, when there is partial intestacy, or when the will provides for intestate distri­bution.
A.     TERMINOLOGY:
1.       NET PROBATE ESTATE: The sum total of all property belonging to decedent at time of death except property held in:
a.      Joint tenancy;
b.      Life insurance;
c.      Inter vivos trust (“living trust”).
 
B.      INTESTATE SUCCESSION STATUTES: Goal of such statutes is to approximate what an average person would want done with his property after death.
 
1.       DISTRIBUTION TO SURVIVING SPOUSE: A surviving spouse’s intestate share depends upon the applicable state statute.
a.      Exam—General Rule: Unless stated otherwise, the surviving spouse’s share is:
(1)       One-half of the intestate estate if decedent leaves surviving issue; OR
(2)       The entire intestate estate if decedent leaves no surviving issue.
b.      Massachusetts Statute: Surviving spouse’s share is determined as follows: (p. 90-91)
(1)       the entire estate if decedent:
(a)      Leaves kindred and no issue, and estate does not exceed $200,000; [§1(1)] OR
(b)      Leaves no issue or kindred; [§1(3)] (2)       $200,000 plus one-half of remaining real and personal property if decedent leaves kindred and no issue;
(3)       One-half of decedent’s real and personal property if decedent leaves issue. [§1(2)] c.      UPC § 2-102: The surviving spouse’s share depends upon whether the decedent’s descendants and/or parents survive. (See p. 93)
 
2.       DISTRIBUTION OF ESTATE NOT PASSING TO SURVIVING SPOUSE:
a.      UPC § 2-103: Any part of the intestate estate not passing to the surviving spouse passes to the decedent’s heirs as follows: (p. 94)
(1)       Descendants by representation (see § 2-106);
(2)       If no descendants, then to parents;
(3)       If no descendants or parents, then to decedent’s parents’ descendants by representation (see § 2-106);
(4)       If no descendants, parents or parents’ descendants, then to decedent’s grandparents as follows:
(a)      _ passes to paternal grandparents (or their descendants by representation if deceased) and _ passes to maternal grandparents (or their descendants by representation if deceased); OR
(b)      Entire estate passes to maternal grandparents (or their descendants by representation if deceased) if there are no grandparents or descendants on paternal side (and visa versa).
 
3.       REPRESENTATION AMONG LINEAL AND COLLATERAL HEIRS:
a.      Former UPC § 2-106: (p. 102)
(1)       Number of Shares (Count): Estate is divided into a number of shares equal to the:
(a)      Number of surviving heirs in generation nearest to decedent that contains at least one survivor;
(b)      +      number of deceased descendants who left surviving issue in same generation.
(2)       Distribution: Shares are distributed per capita to surviving heirs in the nearest generation (one share), and per stirpes to all others.
b.      New UPC § 2-106: Purpose is to effectuate decedent’s presumed intent to treat all grandchildren equally, regardless of family size. (p. 103)
(1)       Number of Shares (Count): Estate is divided into a number of shares equal to the:
(a)      Number of surviving heirs in generation nearest to decedent that contains at least one survivor;
(b)      +      number of deceased descendants who left surviving issue in same generation.
(2)       Distribution: Shares are distributed per capita to survivors in the nearest generation (one share), and modified per capita to all others.
(a)      Modified Per Capita: Remaining shares are combined and distributed per capita to survivors at that level.
c.      Statute of Distribution: (p. 102)
(1)       Number of Shares (Count): Estate is divided into a number of shares equal to the:
(a)      Number of surviving children;
(b)      +      number of deceased children who left surviving descendants.
(2)       Distribution: Shares are distributed per capita to surviving children, and per stirpes to all other descendants.
 
C.     DISTRIBUTION TO LINEAL AND COLLATERAL HEIRS
1.       PER CAPITA v. PER STIRPES:
a.      Per Capita—”By Head”: Descendants at a particular level take equally (e.g., each grandchild takes equal share).
(1)       Ignores prior generations.
b.      Per Stirpes—”By Representation”: Descendants at a particular level take/split the share their immediate ancestor would have taken if he or she had survived (e.g., grandchildren split parent’s share).
(1)       Prior-generation conscious.
2.       METHODS TO DETERMINE DEGREE OF KINSHIP: See Table of Consanguinity (p. 95)
a.      Civil Method: Count up to common ancestor, and then count down to collateral heir; degree is the total of both counts (e.g. first cousin = 4).
b.      Canon Method: Count up to common ancestor, and then count down to collateral heir; degree is the larger of the two counts (e.g., first cousin = 2).
3.       SPECIAL CATEGORIES OF INTESTATE SUCCESSORS:
a.      Multiple Shares in One Person: Courts are split regarding whether an heir related to the decedent through more than one line is entitled to more than one share (e.g., D adopts GC, and GC is D’s deceased son’s child).
(1)       Kansas: Held that heir gets multiple shares based on plain language of statute. [Bartram’s Estate] (2)       Indiana: Held that heir gets only one share to prevent windfall. [Billings

er, but are not deemed transferred until donee obtains possession (e.g. life estate not transferred until life tenant dies).
c.      Effect of Advancement on Donee: Donee is not required to repay the amount advanced or account to the estate, but failing to account bars the donee from sharing in the probate estate.
(1)       Hotchpot: If donee accounts to the estate, the amount of the advancement is added to the estate.
(2)       Distribution of Donee’s Intestate Share: If donee accounts for advancement, he will receive his intestate share less the amount of the advancement.
d.      Effect of Advancement on Donee’s Issue: 
(1)       General Rule—Per Stirpes: If the donee predeceases the intestate donor, the donee’s issue who take by representation (per stirpes) are charged with the advancement. [Most States] (2)       Exception—Per Capita: If all children (including the donee) predecease the intestate donor, and therefore take per capita, the donee’s issue are not charged with the advancement. [Most States] (3)       UPC § 2-109: If the donee predeceases the intestate donor, the donee’s issue are not charged with the advancement unless the donor’s contrary intent is show.
 
2.       ASSIGNMENT OF EXPECTANCY: During an ancestor’s life, a prospective heir may attempt to transfer his expected testate or intestate inheritance to a third party.
a.      General Rule: A prospective heir’s purported assignment of his expected inheritance is void, and the third party does not receive an enforceable interest. [Scott v. FNB] b.      Exception: Equity allows the third party to seek specific performance of a purported assignment if contained in a contract supported by adequate consideration. [Scott v. FNB] (1)       Nominal Consideration: Consideration must be sufficient to support a contract and must be more than nominal (e.g., $1 insufficient)
(2)       Ancestor’s Knowledge: If consideration is adequate, assignment is effective even if ancestor has no knowledge of the assignment.
c.      Effect on Assignor’s Heirs: If the prospective heir predeceases the ancestor, his assignment is not enforceable against his descendants because they are not in privity with the third party.
d.      Post-Death Assignment: If heir assigns his interest after the ancestor’s death (and thus is not an expectancy interest), the assignment is valid regardless of the existence or sufficiency of consideration.
 
3.       RELEASE: Is a form of “liquidated advancement” that occurs when an heir releases his intestate share in exchange for valuable consideration.
a.      General Rule: If valid, releases bind the heir plus his or her descendants who take per stirpes (by representation).
Required Consideration: Heir must provide