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Trusts and Estates
University of Michigan School of Law
Waggoner, Lawrence W.

Trusts and estates
1. Introduction to Family Property Law 3
2. Intestate Succession 4
Introduction 4
General Patterns of Intestate Succession 5
Rearranging Intestate Succession 7
Altering Intestate Succession by Means Other than Testamentary Disposition 7
3. The Changing American Family 8
Who is a “Surviving Spouse”? 8
Who is a “Descendant”? 10
4. Execution of Wills 13
Formalities of Execution: The Proponent’s Case 13
Grounds of Contest: The Contestant’s Case 18
Unattested Documents and Events – Incorp. by Reference, Indep. Significance, etc.21
5. Revocation of Wills 22
Revocation by Subsequent Will22
Revocation by Unattested Revocatory Act23
Revocation by Changes in Circumstances – Marriage, Divorce, Remarriage 24
Reinstating a Revoked Will24
Dependent Relative Revocation (Ineffective Revocation)25
6. Post-Execution Events Affecting Wills 25
Post-Execution Deaths – Laps and Antilapse 26
8. Revocable Trusts and Other Will Substitutes 27
Validity of Will Substitutes – Form Over Substance 27
Revoking or Amending a Will Substitute 29
Will Substitutes and the Subsidiary Law of Wills 30
Coordinating the Parts Into a Coherent Whole 31
10. Protection of the Family: Limiting Freedom of Disposition 32
The Spouse’s Elective Share 32
Probate Exemptions and Allowances 36
Protection Against Unintentional Disinheritance 36
13. Trusts: Formation and Formality 37
Introduction 37
Formation of a Trust37
Formalities in the Creation of a Trust40
14. Spendthrift, Discretionary, and Support Trusts 42
Restraining Alienability of Beneficial Interests/Shielding Beneficial Interests From Creditors 42
Termination (or Modification) by the Beneficiaries 45

1. Introduction to Family Property Law

The Family Property Lawyer

There are two reform organizations that are interested in Private Law Reform

American Law Institute (ALI)
Uniform Law Commission

Uniform Probate Code (UPC) (1969)

The code responded to the problem of the probate process which was expensive and slow.
1969 code was met w/ a lot of resistance. Substantive reform was minimal, rather than procedural.
1990 revisions were much better. Mich has passed 1990 revision.

Uniform Trusts Code (UTC)

Completed in 2000
Codification of trust law, coming mostly from case law
Law of trusts derived from equity
Lawyers are receptive to UTC b/c in many j-d’s not much case law on it.

Restatements

Volume 1 & 2 of Rd. 3rd of Property are published and done in coordination w/ Uniform Acts.

Changing Demographics and Changes in the Family

Marriage/Divorce/Remarriage Phenomenon. Produces many more sets of children and step children
There is an increase prevalence of Unmarried Partners (homo and hetero). There are 3 states that grant intestacy rights to s-s partners who can not get married. There aren’t really any laws for hetero partners who don’t get married and want intestacy rights.
Life Expectancy: technically for women it is 79.5 for men, 74. There is a high degree of infant mortality. A lot of babies die in the first year. Infant mortality brings down the life expectancy. Implications of Increased Longevity:

People are waiting longer to inherit money.
Defined Contributions Plans (retirement): one where your employer and you contribute each paycheck to an account and what you have for your retirement depends on how the investment goes. Increased longevity will make corps. Shift over to defined contributions plans. If you have one, the worry

The structure of the probate/non probate documents are the difference. If a mistake is made on a non-probate transfer, it can be corrected. We are treating the document as if there is a strong presumption that it is correct in probate transfers. But w/ non probate documents there are non-statutory formalities.

In probate/non probate area we have Rule of Construction, so that the language in wills can be interpreted the same way.
Probate property is property that you own in the full sense of the word at your death.
Non probate transfers aren’t owned at death b/c the ownership shifts to the beneficiary at death. Ex: G lives and dies. G had taken out a life insurance policy. G will designate primary and contingent beneficiaries of the policy – the person must be living at time of designation.
Most of the assets people have will be transferred during life (non-probate transfers).
Will substitutes

Joint bank accounts

These have survivorship features, the balance of the account shifts to the surviving spouse

Life insurance

Spouse usually primary beneficiary
Children are usually contingent beneficiaries

Must be named in policy, no class gifts (“to my children”)

401K

similar to life insurance

House, real property