Wills & Estates
I. Non Probate methods of passing property – 1) Right of survivorship 2) Contractual (e.g. “passes @ death) 3) Life Ins. 4) Trust and 5) Property with Power of Appt.
II. Intestacy – Death without a will. Laws of the state (or common law) provide default rules for passing property.
A. Choice of Statute Governing Intestacy – 1) Personal Property – state where decedent domiciled at death; 2) Real Property – Where property is located. NOTE: In a community property state, property designated as community property is divided first and then the intestacy statutes apply to all non community property.
B. Community Property State (see prob. p. 126 / 1/24) – property Passes automatically to surviving spouse with the % determined by § 45. NOTE: Distinguish from separate property which passes according to will or statutes governing intestate succession.
1. Division at Death – Deceased spouse has testamentary power over his half while other half goes to surviving spouse for distribution by will or intestacy statutes.
a) TX (§ 45, p.4) –
(1) All comm. prop. to surv. spouse IF: 1) no surviving children or other descendant surviving; or 2) all surviving children and descendants of deceased spouse are also children or descendants of surviving spouse.
(2) Else:
(a) 1/2 passes to children or descendants of deceased spouse (according to § 43 intestacy distrib.).
2. Title and Determination of Community Prop. – The title under which property held irrelevant. (e.g. prop. held in one spouses name is still comm. prop. – see prob. p. 126 / 1/24).
3. Presumption of Community Property – Burden of proof of separate property on person claiming separate property.
4. Income From Separate Prop. – States split as to whether income from separate property goes to community or separate (TX is community)
a) Example) spouse inherits $7,500 which appreciates to $30K at death. In some state appreciation would be community and some separate.
5. Separate property defined – property acquired before marriage, by gift, devise, or descent.
6. Attempts by Spouses to Alter Character of Assets (see Supp. p. 6-13) – General Law: Property has the character as designated by law and NOT the intent of the parties.
a) Converting Separate into Community by Agmt. – General Rule: not allowed (see 1, p.6, supp.)
b) Gifts to the Community are Separate Property – (see 2, p.6, supp)
c) Converting Comm. Prop. into Separate Prop. (
ents (1980; see p.11-12, supp.)
(a) Spouses and persons about to marry can partition property to be acquired in the future. Signif: allows for premarital agreements.
(b) Spouses can agree that income from sep. prop. is separate prop. Signif: allows for premarital agmts.
C. Uniform Probate Code (§§ 2-101; 2-102; 2-103; 2-105 – p. 68-70) – More generous to surviving spouses than state statutes.
1. § 2-101 Intestate Estate –
a)
2. § 2-102 Surviving Spouse Share –
a) (1) Entire Estate to Spouse if:
(1) No descendant or parent survives deceased
(2) All kids are kids of surv. spouse and spouse has no other kids.
b) (2) 1st $200K plus 3/4 of balance of intestate estate if only parent of decedent survives
c) (3) 1st $150K plus 1/2 of balance of intestate estate if all kids of deceased are kids of surv. spouse & surv. spouse has kids not descendants of decedent.
(4) 1st $100K plus 1/2 balance of intestate estate if decedent’s kids not also spouses kids.
