Select Page

Trusts and Estates
University of Toledo School of Law
Campbell, Bruce A.

 
TRUSTS AND ESTATES OUTLINE
I.                     INTRODUCTION
a.       General
                                                               i.      Passing property at death is not a fundamental const. right
i.         Is a state controlled right
ii.        All states have diff laws regarding passing property at death
iii.      Real prop is treated differently in each state
iv.      No federal laws on wills and trusts
                                                              ii.      Multi-jurisdictional issues
i.         Will drafted in one state is generally recognized by other states, as long as it is valid in the state it was drafted in
ii.        State you live in will impose their state rules to the will
                                                            iii.      Probate
i.         Prove that a will is the will of an individual
ii.        When person dies w/ will it is submitted to Probate Ct
iii.      Ct goes through evaluation process of the will and if it’s the valid will its admitted as proven
1.        Ct common pleas has general juris over wills
2.        Probate Ct is subset of common pleas that specializes in wills
3.        Probate judge doesn’t try wills, trial will be at ct common pleas
iv.      Challenging a will- if going to challenge, its done while ct’s determining if its valid, once admitted ct is saying it’s a valid will and challenges are done- so everyone who may raise a will challenge has to be notified- natural heirs have to be notified that person has died and will is submitted to probate
1.        Who can challenge- must have standing- someone who stands to benefit from will
2.        If successfully challenge then will never admitted, so prop will go by intestacy
b.       Intestate Succession (Intestate = if die without a will)- default succession imposed by state who ID’s heirs and how much prop they take
                                                               i.      All property not passed otherwise = passes intestate
                                                              ii.      Intestate succession applies if:
i.         Invalid will
ii.        No will/ trust
iii.      Valid will but neglected to deal with certain properties
iv.      Valid will but someone challenges will saying that when you wrote it you were incompetent and challenge succeeds
c.       Wills (Testate = if die with a will)- effective at death
                                                               i.      Power
i.         Why do you want a will?
1.        If no will = state decides; intestacy
ii.        Wills give power to give property to who we want and to be most efficient with taxes
iii.      Wills should be re-evaluated periodically (3-5 years) because they have “useful life” – (remain valid forever) – should definitely re-evaluate if divorce, birth, death
iv.      Ambulatory – wills are revocable and mean nothing until you die
1.        Beneficiaries have no rights until person dies
v.       Fiduciary
1.        Person who administers will
2.        Trustee – handles trusts
3.        Executor – named in will to administer
4.        Administrator – appointed by state (not named in will) = intestate
                                                                                                                                      1.      If property subject to probate – ct appoints an administrator (becomes fiduciary)
5.        Personal representative – new term for both (administrator and executor)
                                                                                                                                      1.      UPC – calls those (either with a will or non-will) = personal representative
d.       Will substitutes = Non-Probate (avoids probate and probate fees – but not taxes)
                                                               i.      Certain properties that pass at death not under will – but not

state- can disinherit spouse
                                                            iii.      **Will substitutes always win over wills and intestacy à so questions:
i.         Is it covered under a valid will?
ii.        Is it covered otherwise?
iii.      In no to both = intestate
                                                            iv.      Cts reluctant to use rules of wills for will substitutes (lapse and anti-lapse)
i.         If states have applied them, its been by statute only
ii.        OH doesn’t apply them
iii.      Spouse is automatically removed as beneficiary of will substitutes upon divorce unless specify otherwise
e.       Why to Avoid Probate
                                                               i.      Cumbersome, time consuming, diff to admit will and have land distributed in 1 yr or less
                                                              ii.      Probate fee low but attorney’s fees high- bigger the estate, the more complicated, more time consuming, more expensive fees
                                                            iii.      Can use will substitutes to avoid probate
                                                            iv.      Value of will is that it’s the only type of document that can name personal rep or guardian- will subs can’t
f.        Personal Representative- appointed by ct to admin decedent’s estate
                                                               i.      Responsibilities- has fiduciary duty:
Give notice to natural heirs and creditors(so people can contest the will)