Select Page

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

Administrative matters
North Carolina statutes are for illustrative purposes only
Text in red needs to be cleaned up
Final exam
4 hours
Open book
Essay – 3 or more essay questions
Questions will be as comprehensive as he can make them
Open book – book and any other materials you or any other person in this room has prepared
Need to be able to apply the law to the facts – just writing out the rules at length is a waste of time
I.     Course Introduction
A.    Vast majority of Americans die without wills – most of us believe if we don’t think about death, it won’t happen, or it won’t happen soon
B.     The will is a creature of statute
1.      Always start with the statute
2.      Common law presumed that everyone died without a will
II.Chapter 2 – Intestacy: An Estate Plan by Default, p. 71
A. The Basic Scheme, p. 71
1.      Introduction, p. 71
a.       Intestacy – also known as inheritance law
b.      North Carolina Statutes
(1)   28A-24-1ff – USDA
(2)   29-1ff – Intestate succession
c.       Uniform Probate Code, pp. 72-73
(1)   Drafted by academics – sometimes adopted, sometimes not
(2)   Current version has not been adopted in many states at all
(3)   §2-101 – can use “negative disinheritance”
(4)   §2-102 – Share of Spouse
(a)    All to spouse if no children or parent, or if all children are of same marriage.
(b)   First $200,000 plus ¾ if there is a parent
(c)    First $150,000 plus ½ if there are common children and survivor has own children
(d)   First $100,000 plus ½ if decedent has own children not of marriage
(5)   §2-103 – Share of Heirs Other than Surviving Spouse. Order:
(a)    Decedent’s descendants
(b)   Decedent’s parents
(c)    Brothers and sisters
(d)   Descendants of grandparents, equally to maternal and paternal.
(6)   §2-105 – Escheat
2.     Share of Surviving Spouse, p. 74
a.       Every state makes a generous concession to the surviving spouse in the intestate succession laws
b.      What is a spouse?
(1)   Legal marriage – law does not care whether 2 people loved each other, just whether they were legally married
(2)   N.C. – reduces or eliminates a surviving spouse’s share if he/she commits adultery or abandonment
c.       What is surviving
(1)   Not as rare as you might think for spouses to die simultaneously – travel together
(2)   Good deal of grisly litigation
(3)   Uniform Simultaneous Death Act – where “there is no sufficient evidence” of the order of the deaths, the beneficiary is deemed to have predeceased the benefactor
(a)    Prevents the property from passing through two estates in immediate succession
(b)   Raises the presumption that the deaths are simultaneous – if the presumption is rebutted by “sufficient evidence,” ordinary succession kicks in
(4)   Janus v. Taraswisz 
(a)    Facts – Stanley and Theresa Janus took Tylenol laced with Cyanide
(b)   Holding – there was sufficient evidence that Theresa survived Stanley, and therefore she is not deemed to predecease him
(5)   Uniform Probate Code – for one to be an heir, he must survive the decedent by at least 120 hours
3.     Shares of Descendants, p. 86
a.       Classic per stirpes
(1)   Divide the property into as many shares as there are living children of the designated person and deceased children who have descendants living.
(2)   The children of each descendant represent their deceased parent and are moved into his position beginning at the first generation below the designated person.
b.      Modern per stirpes – majority rule
(1)   Academics call it per capita with representation, but the name has not caught on with judges
(2)   Divide the decedent’s estate into shares at the generational level nearest decedent where one or more descendants of the decedent are alive and provide for representation of any deceased descendant on that level by his or her descendants
c.       Per capita at each generation – UPC
(1)   Initial division of shares is made at level where one or more descendants is alive
(2)   But, the shares of deceased persons on that level are treated as one pot and equally divided among representatives on the next generational level.
(3)   Those equally related should take equal shares.
(4)   Takers of an estate in a generation are treated equally regardless from whom they are descended or how many siblings they have.
d.      Sons-in-law and daughters-in-law are excluded as intestate successors in virtually all states. Property escheats to the state before sons-in-law or daughters-in-law inherit
e.       Negative disinheritance, p. 90
(1)   Rule – disinheritance is not possible by a declaration in a will that “my son John shall receive none of my property”
(a)    To disinherit John, the testator must leave his entire estate to someone else
(b)   Otherwise, John will take an intestate share of any nondistributed property
(2)   UPC § 2-101(b) changes this rule – authorizes a negative will
4.     Shares of Ancestors and Collaterals, p. 90
a.       Descendants – when the intestate is survived by a descendant, the decedent’s ancestors and collaterals do not take
b.      Parents – when there is no descendant, after deducting the spouse’s share, the rest of the intestate’s property is usually distributed to the decedent’s parents, as under the Uniform Probate Code.
c.       Collateral kindred
(1)   All persons who are related by blood to the decedent but who are not descendants or ancestors are called collateral kindred.
(2)   If the decedent is not survived by a spouse, descendant, or parent, in all jurisdictions intestate property passes to brothers and sisters and their descendants.
d.      Table of Consanguinity: Page 92.
e.       Half-bloods: in a large majority of states, a relative of a half-blood is treated the same as a relative of whole-blood.
B.   Transfers to Children, p. 97
1.     Meaning of Children, p. 97
a.       Posthumous Children, p. 97
(1)   280 Day Rule – rebuttable pre

so they couldn’t consent.
c.       Nonmarital Children, p. 115
(1)   Common Law – nonmarital (illegitimate) child did did not inherit from parents or they from him
(2)   Modern Law
(a)    Mother – same relationship of heirship with mother as legitimate child
(b)   Father – same relationship only if paternity is established – establish paternity by:
1)      Subsequent marriage
2)      Acknowledgement by father
3)      Adjudication during life of the father.
4)      Clear and convincing proof after the father’s death.
(3)   Uniform Parentage Act – when mother and father do not marry, parentage is presumed to exist, if:
(a)    Father accepts child into his home and holds him out as child
(b)   Father acknowledges child in writing to court.
(4)   Hecht v. Superior Court (Cal Ct. App. 1993), p. 117
(a)    Facts – Who owns sperm? William E. Kane committed suicide. Will gave sperm to Deborah Hecht for posthumous insemination. Hecht sued to get the sperm. William’s children contested
(b)   Holding – court refuses to order the sperm to be destroyed – can have a property interest in sperm
(5)   Abandonment Statute – parent who abandoned child cannot inherit from child. In re Lunsford.
2.     Advancements, p. 128
a.       Definition – inter vivos gift to the person who turns out to be the donor’s heir
b.      Compare the concept of satisfaction in the context of wills
c.       Question – Is the gift an advance payment of the inheritance?
(1)   Common law
(a)    Presumption that all inter vivos gifts were advancements on inheritance
(b)   Much litigation ensued
(2)   Majority rule
(a)    Reverses the presumption – must have evidence that the gift is an advancement – intention and a writing
(b)   N.C.G.S. § 29-33ff – Advancements – follows the majority rule; may bring in any evidence
(3)   UPC § 2-109(c) – must have intention and a writing
d.      Many states only apply it if the decedent dies totally intestate
e.       Hotchpot
(1)   Going into hotchpot – that is the phrase describing the equalization of advancements with people taking from the estate
(2)   See example on p. 129
(3)   Never does the advancee have to pay back money
(4)   Compare the concept of augmented estate in the context of wills
f.       Does the advancement get charged to donee’s heirs if the donee is dead
(1)   Common law and North Carolina – yes
(2)   UPC – no