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Wills, Trusts, and Estates
University of Oklahoma College of Law
Guzman, Katheleen

Wills Trusts and EstatesI. Intestatea. SCHEME (be able to write example that gives 3 different results) i. Spouse (2)1. 1990 UPC (2-102)-a. The intestate share of the decedent’s surviving spouse is: i. The entire estate if:1. no descendant or parent of the descendant survives the decedent (spouse only); or 2. all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent (spouse + all joint issue); ii. The first $200K, plus ¾ of any balance of the intestate estate, if no descendants of the decedent survives the decedent, but a parent of the decedent survives the decedent (Spouse + parent(s)); iii. The first $150K, plus ½ of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent (Spouse + any issue of surv. Spouse only (decedent’s steps) and joint issue); iv. The first $100K, plus ½ of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse (Spouse + any issue of decedent only (surviving spouse’s steps) irrespective of whether also joint issue or issue only of surviving spouse).2. Title 84 OK §213 (majority)- (presume all prop is Joint Industry Property)1. JIP- anything after marriage except things proven to be obtained thru a will, devise, or a gift.b. If the decedent leaves a surviving spouse, the share of the estate passing to said spouse is: i. If there is no surviving issue, parent, brother or sister, the entire estate (Spouse only), or ii. If there is no surviving issue but the decedent is survived by a parent or parents, brother or sister (Spouse + parent/siblings):1. all the JIP, plus 1/3 of all non-JIP; or  iii. If there are surviving issue, all of whom are also issue of the surviving spouse (Spouse + all joint issue):1. Undivided ½ of the entire estate; iv. If there are surviving issue, one or more of whom are not also issue of the surviving spouse (Spouse + any issue of decedent only (surviving spouse’s steps)):1. Undivided ½ of JIP and an undivided equal share of the non JIPEx: Spouse + any issue of surviving spouse only (decedent’s steps) no special rule, pretend they don’t exist. ii. Descendants (3)1. Pure Per Sterpies (vertical equality)-a. Go to the child generation NO MATTER WHATb. Count the number of live roots (not live people) in THAT GENERATIONc. Allocate a share to each root and divide down, if necessary (can’t do it if child is alive)2. Modified Per Sterpies (OK)-a. Go to the first generation with at least one living memberb. Count the number of live roots (not live people) in THAT GENERATIONc. Allocate a share to each root and divide down, if necessary3. 1990 UPC (Horizontal equality)-a. Go to the first generation with at least one living memberb. Count the number of live roots (not live people) in THAT GENERATIONc. Allocate a share to each living member in that generationd. Combine the remaindere. Allocate a share of that remainder to each qualified taker at next generation (not qualified if parents are alive)f. Repeat if necessary iii. Ancestors/Collaterals (3) i. If you get to descendants, you don’t need ancestors2. Civil-a. Lowest number wins3. Modified Civil-a. Lowest equal number subject to tie breaker of lowest parentella4. Parentellic (UPC 2-103, OK §213 has Parentellic plus civil)-a. Closest parentella wins (heads of parentella trump others in same parentella)1. Parentellic is representational (you can’t trade up your number in other systems).2. If parentellic system, use the same representation scheme used in descendant part3. Statute uses term “by representation” ii. OK has Parentellic Plus1. After third parentellic, prop goes to Next of Kina. A civil approach who has closest number2. In UPC, the State gets the prop if no one is found after 3rd parentellic. iv. United Kingdom Scheme1. UK has parentellic scheme2. When there is issue England has Pure Per Sterpies3. No Spousal distinction (no gender bias, like before)4. Creates a statutory Trust in favor of issues5. Child cannot vest in trust until married or over 18 (unless they will reach age w/in 4 years, or marry soona. –Keeps estate open for years while waiting for maturity/vestingb. ALTERATION i. Will-1. Best way  ii. Negative Will- “all real property to X; I don’t want kids to take anything”1. 2 Options for interpretation:a. Majority View Court can press PP thru intestacy-disregard the words, and the kids would get somethingb. UPC (intent based) Put PP thru intestacy, but alter the outcome and pretend the children are not there (assume predeceased) iii. Changed Circumstance (marry, death, divorce, adopt, etc.)- iv. Advance (Inter vivos gift changed unequal share) (used to be default)-1. A gift made w/the intent that it was to be taken out of inheritance.2. Steps:a. Create Hotch Pot (estate + Qualified Advance)b. Distribute HP under relevant Intestacy Schemec. Subtract out value of any QA.  If any QA is greater than HP Share disregard both that QA and that advancee and start over without them.d. Total amounts distributed should equal estate amount.  3. Qualified Advance: (rare, would be in will or not written)a. Inter vivos gift made intended to reduce testate/intestate shareb. In writing i. Jurisdictional approach to when it was written ii. Jurisdictional approach to who wrote it v. Disclaimer (post-mortem)- Reject property.  Do not accept it for some reason (tax),1. Disclaimaint treated as predeceased.  a. Reasons: Taxes, dislike person, leave it to

d Child Relationship (Gender neutral, not limited to marital children, does not cover adopted children)    a. Expect as otherwise provided, for purposes of intestate succession by, through, or from a person, an individual is the child form his natural parents, regardless of their marital status.  b. An adopted individual is the child of his adopting parent or parents and NOT of his natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child’s to inherit from or through the other natural parentc. Inheritance from or through a child by either natural parent or his kindred is precluded unless that natural parent has openly treated the child as his, and has not refused to support the child.  4. OK 213a. Says nothing on how a parent must act5. OK 216- Inheritance from Illegitimate childa. If an illegitimate child, who has not been acknowledged or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or, in case of her decease, to HER heirs at law. i. Bias towards mother all prop could go to her next spouse ii. Non-marital Father must do special acts to take from the child1. Must adopt or acknowledged (no definition)2. Mother doesn’t have to do anything3. Arguably Child’s spouse cannot takeb. Over-inclusive and under-inclusive  i. Dad can only get half at max ii. Doesn’t require good behavior of mother6. Why do people want strict spouse rules, but liberal parent rules?a. Parents raise you (conduct)b. Choice in marriage, not in parentsc. Children can’t write a willd. Smaller number of peoplekicking people out.  Less cost iv. Child (must look at inheritance THROUGH one another, not just from)1. Adoptiona. Adopted children can inherit through their adoptive parents, and vice versa (majority) i. Initially could notcouldn’t create a familyb. Adopted children can inherit through their adoptive grandparents and vice versa (majority)c. Adoptive child may or may not be able to inherit through their natural parents—usually no.  Depends on  jurisdiction. i. What if it wasn’t a chosen severance? I.e. Tarzan ii. Intra-marital adoption (mother adopts child’s child?)