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

I.          Probate. 7
A.      Probate Procedure. 7
1.       Must probate when property is evidenced by a written document (car title, stock certificate, etc.)7
2.       File a petition for probate of a will or a petition for administration if intestate. 7
3.       Court appoints a Personal Representative. 7
4.       Notice to heirs, devisees & creditors. 7
5.       Duties of PR.. 7
B.      Probate Alternatives. 7
1.       Simplified Administration. 7
2.       Informal Administration. 7
C.      Statute of Limitations. 7
1.       All states have SofL for filing petition for probate of a will (KS= 6 months)7
2.       Non-claims statute sets the time limit in which creditor must file a claim (KS= 4 months after notice is given)7
D.      Professional Responsibility Rules. 7
1.       Duty to know basis principles of law commonly knows by attorneys. 7
2.       Duty to discover additional rules of law that can be found by common research techniques. 7
3.       Duty to refer matters of specialty to attorneys in that field. 7
II.         Intestate Succession. 7
A.      Applies when—… 7
1.       Person dies without a will7
2.       Partial intestacy—decedent has a will, but doesn’t dispose of all property. 7
3.       Will or trust actually calls for the intestate succession laws to be used. 7
B.      Distribution to Surviving Spouse. 7
1.       General Rule—unless stated otherwise, the surviving spouse’s share is:7
2.       UPC §2-101 creates different rules for how much the wife will take. 7
C.      Distribution of Estate Not Passing to Surviving Spouse. 8
1.       UPC §2-103: Any part of the intestate estate not passing to the surviving spouse passes to decedent’s heirs as follows:8
D.      Rights of Descendents (children, grandchildren)8
1.       Determining who gets what share. 8
2.       Per Capita—if it applies at a particular generation level, everyone at that level takes equally (ignore prior generations)8
3.       Per Stirpes—if it applies at a particular generation level each person steps into the shoes of that person’s direct prior ancestor and takes what that person would have taken, if he survived. 8
4.       UPC §2-106. 8
5.       Adopted Children. 8
E.      Ancestors and Collaterals. 8
1.       Definitions. 8
2.       Table of Consanguinity—compare the relative closeness of the collaterals to the deceased (CB 92)8
F.      Surviving the Decedent9
1.       If you want to take by intestate succession, you must survive the ancestor9
2.       Must be already born to take by intestate succession. 9
G.      Disinheriting an Heir. 9
1.       General rule—must state in writing (will) that the person is disinherited, but must also leave the property to someone else 9
2.       UPC § 2-101(b) – may exclude w/language. The disinherited party is treated as having disclaimed his share.9
H.      Bars to Succession. 9
1.       Homicide—potential heir kills a relative. 9
2.       Disclaimer. 9
III.        Advancements and Assignments. 9
A.      Advancements (early transfer of property from the decedent to a prospective intestate heir)9
1.       Inter vivos transactions can be. 9
2.       Approaches. 10
3.       If a gift is an advancement, the donee must allow its value to be brought into hotchpot if donee wants to share in decedent’s estate 10
B.      Release. 10
1.       Occurs when child or other issue releases all value or interest in the estate in exchange for valuable consideration. 10
2.       Difference between a release and advancement is the INTENT of the parties based on all of the circumstances. 10
C.      Assignment10
1.       General Rule—Assignment of a prospective inheritance is void if assignee does not give consideration because the potential heir only has a mere expectancy. 10
2.       If D dies, then C assigns his interest, most courts would enforce the assignment, even without consideration by X because there is now a real interest because D is already dead. 10
3.       Hypo—D has C1 and C2 who has GC1; C2 assigns interest to X; C2 dies; D dies. 10
IV.        Wills. 10
A.      Capacity. 10
1.       Testator must have mental capacity to make a valid will, including the ability to understand. 10
2.       TEST for CAPACITY.. 11
3.       Insanity affecting Capacity. 11
4.       Undue Influence. 11
5.       Fraud—occurs when testator is deceived by a misrepresentation, is a causal link between the misrepresentation and action by the testator, and intent to deceive. 11
B.      Execution of Wills. 11
1.       Requirements—will vary by statute, but must be followed exactly or will can be declared invalid. 11
2.       Purpose of Requirements. 11
3.       Presence (SEE 9/13 FOR HYPOS)12
4.       Sequence. 12
5.       Signature. 12
6.       Purging Statutes (applies when witness is a devisee)12
7.       Supernumerary statute—witness above what was required by statute does not forfeit his devise at all, thus treating him as if he was never a witness at all12
8.       Self Proving Wills. 12
9.       Mistakes in the Execution of a Will12
10.      Safeguarding the Will13
C.      Holographic Wills. 13
1.       Will entirely in the testator’s handwriting. 13
2.       Will valid without witnesses signatures if—… 13
3.       “Fill in the Blank” Wills—handwritten portion of the will must express a testamentary intent devising certain things to certain people, be effective at death, and revocable until the testator dies. 13
4.       Language of the Will13
D.      Revocation of Wills. 13
1.       Subsequent written instrument—must be executed with all of the appropriate formalities. 13
2.       Physical acts. 13
3.       Operation of law—statute revokes your will if something happens subsequent to its execution—UPC §2-804. 14
4.       Revocation by Proxy—not effective unless:14
5.       Dependent Relative Revocation—provides relief when the will was revoked by mistake; presumption that T would have reinstated W1 if he had known W2 was not effective b/c he would not want his property to go through intestacy. 14
E.      Effect on W1 if W2 is Revoked / Revival14
1.       Common law (English view)—no will is effective for any purpose until T dies. 14
2.       Ecclesiastical Rule—will takes effect instantaneously, absolutely and immediately when it is executed. 14
3.       Liberal Instantaneous View—W2 takes effect immediately, as soon as it is executed, but if W2 is itself revoked, it automatically revives W1 if there is evidence of testator’s intent to revoke it14
4.       UPC §2-509 Revival of a Revoked Will (282)14
F.      Codicils and 2nd Wills. 14
1.       Codicil—if 2nd document refers back specifically to the 1st will, it is a codicil14
2.       2nd Will—if 2nd document does not refer back to 1st document, the 2nd document is a separate, freestanding will15
3.       Whether 2nd document is a free-standing will or a codicil does not matter if the 2nd document is revoked b/c it does not affect the 1st document; BUT.. 15
4.       Difference b/w codicil and 2nd free-standing will15
G.      Lost or Mutilated Will and Copies of Wills. 15
1.       Harrison Presumption—if evidence establishes that the testator had possession of the will before death, but the will cannot be found or is found mutilated, it triggers the presumption that the testator destroyed it with the intent to revoke. 15
2.       Rebutting the Presumption. 15
3.       Probate of Lost Wills. 15
4.       Copies of Wills. 15
H.      Components of a Will—4 doctrines to determine what pieces of paper make up a will15
1.       Integration of Wills—gathering together the pieces of paper that are

C §2-202 thru 2-209 Policy Premises. 20
5.       Waiving Forced Share. 20
D.      Spouse Omitted from a Premarital Will20
1.       Surviving spouse who was not mentioned in a premarital will, still takes part of testator’s estate, unless. 20
2.       UPC §2-301 Entitlement of Spouse. 21
E.      Omitted Children from a Will21
1.       Pretermission Statutes—apply to children born after the execution of the will who are not mentioned in the will21
2.       Types of Pretermission Statutes. 21
3.       Problems with disinheriting children. 21
F.      Right of Omitted Party to Bring Malpractice Action. 21
1.       Liability for malpractice in drafting a will is limited to those in privity with the attorney; must be in a direct contractual relationship. 21
2.       Estate of the decedent can always bring a malpractice action because courts consider the estate as standing in the shoes of the decedent, who is in privity with drafting attorney. 21
3.       Constructive Trust21
VI.        Trusts. 21
A.      Trust—owner of assets (settlor) transfers legal title to the trustee for benefit of beneficiaries who have equitable title 21
B.      Entities involved in a Trust21
1.       Settlor—original owner who makes gift of property to the trust21
2.       Trustee—recipient of legal title; manages property and owes duty to beneficiaries. 22
3.       Beneficiaries—have equitable title; receive tangible benefits; enforces duties of the trustee. 22
C.      Creation of a Trust22
2.       Alleged settlor must have intent to create a trust with mandatory obligations imposed on the trustee. 22
3.       Generally an oral trust will be enforced; EXCEPT—… 22
4.       General Rule—if there is a trust, trustee has duty to keep accurate records of his expenditures on behalf of the trust and have to keep a record of where the principal23
5.       Honorary Trust—binding on conscience of trustee b/c no B is capable of enforcing the trust; if trustee does not want to follow through then the $ goes back to the settlor23
D.      Contracts as Fallback Trusts. 23
1.       General Rule—an interest which has not come into existence or which has ceased to exist cannot be held in trust23
2.       Fallback—if you try to declare yourself as trustee of an interest not in existence, then under contract law, you are liable to create a trust if there is consideration for a contract23
E.      Resulting Trusts and Constructive Trusts (Exceptions to the requirement that trusts involving land need to be in writing)23
1.       Both arise by operation of law.. 23
2.       Resulting Trust23
3.       Constructive Trust23
F.      Discretionary, Spendthrift, Support, and State-Supported Trusts. 24
1.       Purpose of discretionary, spendthrift and support trusts is to protect the beneficiary from threats by creditors, including:24
2.       Discretionary Trust—trustee has discretion as to the assets of the trust, either the income, principal or both; can distribute to the extent of circumstances set out in the trust, but no more and no less. 24