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Trusts and Estates
University of North Carolina School of Law
Orth, John V.

Orth, Fall 2015
Only persons who have standing to challenge the validity of a will are those who would take if the will were denied probate
A person who dies WITH a will has died TESTATE à probate property is distributed per the terms of the will
A person who dies WITHOUT a will has died INTESTATE à probate property is distributed per the default rules of the law of intestacy
A person who dies WITH a will that only disposes of PART of the probate estate= PARTIAL INTESTACY à probate property not disposed of by the will is passed by intestacy
Probate= legal procedure for retitling the property of the person who dies owning it in their sole name
Non-Probate= property that does not go through probate, and thus does not need to go through the process of being retitled
Statute of descent and distribution= intestacy statute
Applicable Law=
·         Generally, the law of the state where a decedent was domiciled AT DEATH governs the disposition of the decedent’s PERSONAL PROPERTY, and the law of the state where the decedent’s REAL PROPERTY IS LOCATED governs the disposition of REAL PROPERTY
Heirs Apparent= person who would inherit A’s property if A died à they have a mere expectancy that is both contingent on surviving A and defeasible by A’s contrary disposition by will, will substitute, or lifetime gift
Devisee, Legatee, Beneficiary= a person named in a will
Surviving Spouse=
·         Was there a valid marriage recognized in the jurisdiction?
o   Separation is still legally married
·         Was that spouse alive when the person died?
Other Survivors=
·         Descendants (issue)
o   Children, grandchildren, great-grandchildren, etc.
·         Ancestors
o   Parents, grandparents, great-grandparents, etc.
·         Collaterals
o   Related by blood to the decedent= brothers and sisters, aunts and uncles, nephews and nieces, cousins, also adopted peopled
No Survivors=
·         Property escheats to the state
Negative Disinheritance= saying that no matter what, person X does NOT get the property—NC does not allow this
UPC Authority
S; no D; no P
All to S
S; D
All to S if all D are also S’s and S has no other surviving descendants
$225,000 + half of the rest to S if D are also S’s and S has other descendants; other half to D
$150,000 + half of the rest to S if one or more D is not S’s; other half to D
S; no D; P
$300,000 + 3/4 of the rest to S; other 1/4 to P
No S; D
All to D (per capita at each generation)
No S; no D; P
All to P
No S; no D; no P; BorS
All to BorS (per capita at each generation)
No S; no D; no P; no BorS; G or GD (descendent of grandparent)
If both paternal and maternal G or GD, 1/2  to paternal G or GD and 1/2 to maternal G or GD (all to G or, if none, per capita at each GD generation); or
If survivors on one side only, all to G or GD on that side (all to G or, if none, per capita at each GD generation)
No S; no D; no P; no BorS; no G or GD
Stepchildren, or if none, then
Escheat to state; therefore, no “laughing heirs”
Simultaneous Death
·         Uniform Simultaneous Death Act (USDA): if there is no sufficient evidence of the order of deaths, each was deemed to have predeceased the other, so neither inherited from the other
·         Janus v. Tarasewicz: H and W both die after ingesting poisonous Tylenol capsules—H dead on arrival, wife was on life support for 2 days—H’s mom brings action for the proceeds of his life insurance policy which named the wife as the primary B and her as the contingent B
o   Issue= was there enough evidence to show that the wife lived longer than the husband?
o   Law= a person claiming to be a survivor had to prove that they were alive when the person died—there’s a weak presumption that they did not survive—they have to rebut that by offering sufficient evidence of their survivorship
o   Court= there WAS enough evidence to show that she lived longer à may not have been meaningful life, but she still lived longer than him
·         2-104 and 2-702: an heir, devisee, or life insurance beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the decedent
o   now we’ve created a motivation to keep people artificially alive to meet this threshold
·         Uniform Determination of Death Act: an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions; or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead
·         How to Solve this in Real Life=
o   Have an extensive section in the will with definitions for purposes of this instrument—“suriviving” and have a time frame (30, 60, 90 days)
o   Also define “dead”
UPC 2-101. Intestate Estate
(a) An

ing descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).
(b) If there is no taker under (a), but the decedent has:
1)      One deceased spouse who has one or more descendants who survive the decedent, the estate or part thereof passes to that spouse’s descendants by representation; or
2)      More than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part thereof passes to each set of descendants by representation.
UPC 2-105. No Taker
If there is no taker under the provisions of this article, the intestate estate passes to the state.
I. Descendants
1. Representation
·         All states provides that if a child dies, that child’s descendants SHALL REPRESENT the dead child and divide up the child’s share among themselves (say, if their parent then dies, and dead child deserves a share of estate)
o   A had children B, C, and D—B has child E—C has child F and G—D has child H and I à C dies before A à A’s stuff is left to B (1/3), F (1/6), G (1/6), and D (1/3)
·         Problem= A has 2 children B and C – B as child D – C has 2 children E and F – B and C predecease A
·         English Per Stirpes
o   1/3 states follow this
o   treats each line of descent equally à property is divided into as many shares as there are living children of the designated person and deceased children who have descendants living (i.e. grandchildren are moved into dead parent’s position)
§  look for how many living children and dead children with living descendants exist—descendants of deceased children represent their deceased parent
o   Problem= D= 1/2, F= 1/4, and G= 1/4 ß promotes vertical equality by comparing lines of descent, but at the expense of horizontal equality