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Wills, Trusts, and Estates
University of South Carolina School of Law
Medlin, S. Alan

Wills Trusts and Estates- Medlin Summer 2015

· Exam

· Review Session: Thursday at 11:30 a.m.

· The exam will be multiple-choice.

· You can explain your answers if you want to.

· 35-36 Questions/3 Hours

· Email: medlinsa@law.sc.edu and amedlin@sc.rr.com

· Recommended Method of Executing Will

· See pages 242-245. Also, come up with your own checklist. Check signatures over and over again. Inform client of how he/she can revoke the will. (Two ways to revoke; best method is to keep will 1 and execute a new will that will revoke will 1.)

· Intestacy

· Chapter 1: Introduction: Power to Transmit Property at Death/Dead Hand Control

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· Estate taxes and gift taxes were inextricably intertwined for many years.

· In early January of last year, Congress moved the exemption amount up.

· For the 2013 tax year, the estate tax exclusion amount was $5.25 million. It increased to $5.34 million for 2014.

· Elective share – government allow your surviving spouse to take a third of the decedent’s estate.

· The state in which the properly is located, is the state that governs the property.

· Case: A v. B.

· Under PR 1.6, the information you share with your attorney is confidential.

· Attorneys can do their jobs more efficiently if the client feels safe telling the attorney everything.

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· Before Representing co-clients

· Tell clients form the start that they will complete documents concerning conflict of interest and confidentiality. Inform clients that you will share all information with the other client.

· Remember: don’t make the clients problem your own.

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· Malpractice

· A lawyers duty to a client is measured by what a reasonable lawyer would’ve done. If you hold yourself to a higher standard, you will be held to that standard.

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· Chapter 2: Intestacy: An Estate Plan By Default

· Escheat – if no one can take the property, it goes to the state.

· Intestate – somebody that dies without a will

· Probate asset – one that decedent possess by will, or if no will, through intestacy

· Non-probate asset – life insurance policies, trusts, joint tenancy with right of survivorship

· Intestacy can’t control non-probate assets

· Issue – lineal descendants (children, grandchildren, etc.)

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· Probate Rules are Based On

· Who’s most worthy of taking based on close relationship.

· What to give a surviving spouse?

· We don’t want laughing heirs.

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· Intestacy Succession and Wills (SC Statutes)

· § 62-2-102 (Spouse’s Share) : If there’s no surviving issue, spouse takes everything. If there’s an issue, spouse gets half.

· § 62-2-103 (Blood Relative –no spouse) : Divide at the generational level

· Follow diagram on p. 93, going up, down, up.

· § 62-2-107: Half blood and whole blood are treated the same.

Survivorship

· § 62-2-104: An individual must survive the decedent by 120 hours (5 days) to take by intestacy. If this does not care the decedent and the individual are considered to have dies simultaneously. Proof must be shown my clear and convincing evidence.

· This section does not apply if it would result in an escheat.

Uniform Simultaneous Death Act (This is a rule of construction.) 1-501-1-508

· For purposes of decedent’s will (where wife is beneficiary), husband survives and his estate goes to his substitute beneficiary, if the beneficiary (current wife) doesn’t survive him by 120 hours.

· The beneficiary is considered to have predeceased the decedent under this Act, even though death is simultaneous.

· *Note: This is a rule of construction–guide to understanding intention. Therefore, you can draft around this Act.

Posthumous Children/After-born Heirs

· Under the common law, a child born after you die is still considered an heir. (Has to be issue.)

· § 62-2-108: Replaced the common law approach.

· Issue conceived before the decedent’s death must be born within ten months thereafter decedent’s death and the heir has to liv

udgment of criminal conviction or guilty pleas will be conclusive evidence.

· If there is an acquittal, we still have to determine if there was a felonious and intentional killing committed for the probate side

· (h) Wife kills husband, and then she commits suicide (within 120 hours of killing husband). The husband is considered to have survived the wife for distributing the wife’s (killer’s) estate.

Transfer of Expectancy

· Two types:

a. You only have an expectancy while the decedent is still alive. For intestacy law purposes, a court will enforce/recognize a transfer of expectancy to a third party.

· Example.

(Transfer): Expected Heir ===> Third Party

§ EH wants TP’s Ferrari. TP won’t sell unless he gets $100,000. EH says, “My mom is giving me $200,000 upon her death. You can have that.” TP accepts offer. EH makes transfer. If EH gets inheritance, the court will enforce this!

a. Release: Life time transfer-give from intestate decedent , intention that expected heir give up all rights to intestate estate

b. Advancement: Transfer between intestate decedent while alive and an expecting heir.

i. This is also called an “advancement”–decedent must intend for this to be an advancement (writing). 2-110

1. Everything must equal out. (offset)

2. B & C can waive the right to add the advancement to the total and just split everything equally.

a. Example.

i. “Mom, I need $30,000 right now to start my business. If you give it to me, you can deduct it from my share of the estate.” Mom makes transfer. Estate is worth $150K. The court will enforce this!