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Trusts and Estates
University of Toledo School of Law
Chapman, Douglas K.

Trusts & Estates– Professor Chapman

Introduction
I Glossary
1. Absolute Ownership
o = NO individual owns “absolutely” w/ the exception of King AND State
2. Ad Litem
o = “For the Suit”
i Ex: Guardian appointed by the court to handle the suit of a minor
3. Ademption
o = failure of a specific devise under testator’s Will b/c the property NO longer exists w/in testator’s estate
i *testacy’s version of an “advancement”
(i) Ex: specifically devised property was sold, gifted to another , consumed, destroyed, OR stolen
4. Administrator / Administratrix
o = person appoint to administer estate of decedent who had NO Will
5. Advancement
o = property from the estate given to a Devisee prior to Decedent’s death à counts against Devisee’s/Heir’s share
6. Affinity
o = marital relationship
7. Bequest
o = gift of property AFTER death
i Ex: devise in Will
8. Cestuie Que Trust
o = Beneficiary of a trust
9. Chattels
o = personal property
i *derives from the word “cattle”
ii *NOT divisible
10. Codicil
o = addition to OR modification of a pre-existing Will
i *must be (1) in writing + (2) comply w/ all testamentary rules
11. Consanguinity
o = blood relationship
i Ex: grandparents, parents, siblings, children à related by blood
12. Constructive Trust
o = equitable remedy à judge orders the transfer of devised property to someone other than whom was intended in Will
i Ex: ordered when evildoer wrongfully brings about the death of decedent
13. Descend
o = downward movement of “real property” via intestacy
i Ex: parcel of land being passed to children
14. Devise
o = passing of “real property” via Will
i *Historically à must use terminology OR the devise was invalid
ii *Now à NO need to distinguish between “real” AND “personal” property
15. Disclaimer
o = act of refusing to accept a gift, devise, or other inheritance
i *Devisee OR Donee must affirmatively refuse the gift according to the statutory rules OR after 6 months à they own the gift + its liabilities
16. Distributed
o = passing of “personal property” laterally via Will
i *can pass to parents/grandparentsORkids/grandkids
17. Elective Share
o = right of surviving-spouse to elect a certain statutory share of decedent’s estate instead of taking under Will
i *ONLY if statue provides widow w/ rightANDthis election is more than she would have inherited via Will
18. Escheat
o = property which passes to the State b/c decedent did NOT have a Will AND did NOT have heirs to whom property could have been passed via intestacy
19. Estate
o = sum of the interest a person has in his “real & personal” property (*can be absolute OR under color of title)
i Gross Estate:
a = every item of property that can be subject to taxation (testate, intestate, non-probate)
ii Probate Estate:
a = every item of property that can be passed “testate” OR “intestate”
iii Net Estate:
a = equivalent to: “probate estate” – (burial costs + taxes + other expenses)
iv Taxable Estate:
a = portion of estate which is subject to Federal Estate taxation + State Estate taxation
(i) Ex: Death Tax
20. Executor
o = person appointed to administer the estate of a decedent who died “testate” OR w/ a valid Will
i *Executor is usually named by decedent in Will AND judge will usually appoint this person but court has power to appoint someone NOT named in Will
21. Heir(s)
o = person(s) entitled to take under “intestate succession” laws of state
i *NO living person has “heirs” à Heirs are determined ONLY upon death of decedent
o Lineal Descendants:
i = children, grandchildren, (but usually not stepchildren) … (*down the line)
o Ancestral Descendants:
i = parents, grandparents, … (*up the line)
o Collateral Descendants:
i = brothers, sisters, cousins, uncles, aunts, … (*horizontal)
22. Hotchpot
o = total value of estate at time of decedent’s death + value of advancements given
23. Inheritance
o = ALL property (both real + personal) which is received by Heirs through decent & distribution
24. Intestate
o = person who dies w/out Will
i *property will pass according to state laws of intestate succession
25. Inter Vivos Gift
o = gift which is given by testator while still alive
i *Elements à (1) Intent, (2) Delivery, (3) Acceptance
26. Laughing Heir
o = extremely distant heir who inherits via intestacy
27. Legacy
o = gift of $$$ to a devisee (“legatee”) by Will OR “testamentary”
28. Parentella
o = column in “Table of Consanguinity”
29. Per Capita
o = equal distribution of all probate property NOT passed to surviving spouse, to intestate descendents
30. Per Stirpes
o = “with representation”; allows lineal descendants to “stand in the shoes” of the named heir.
31. Personal Representative
o = person appointed by probate court as a “fiduciary” to administer the decedent’s estate
i *applicable for both “testate” AND “intestate” proceedings
32. Precatory Trust
o = trust that expresses a “desire, intention, wish, request” rather than a “command”
33. Pretermitted Heir
o = child who was forgotten in testator’s Will b/c child was thought to be deceased OR born/adopted after Will’s execution
34. Probate
o = “proof”
i *submit Will to probate for “proof”
35. Probate Courts
o = “Surrogate courts”
i Probate:
a = elected judges administer a sub-division of “Common Pleas” court
(i) *NO jury trials
ii Family Law:
a = elected judges administer an other sub-division of “Common Pleas” court
36. Resulting Trust
o = trusts created “by implication” by courts necessary to fulfill party’s wishes/intentions
37. Settlor
o = person who creates a trust
38. Statute of Wills
o = 1st statutory provision created in 1600’s giving people right to devise real property
39. Testate
o = person who dies “testate” à dies w/ a valid Will
40. Testator
o = decedent who created a valid Will prior to death
41. Testamentary Gift
o = gift from decedent which is transferred to beneficiary OR heir AFTER decedent’s death
42. Testament
o = permits transfer of chattel at time of death
i *originates from “Ecclesiastical Determination”
43. Trust
o = legal title of property held by a person[s] (“Trustee”) for the benefit of another (“Beneficiary”) who holds equitable title
44. Vendor
o = usually a seller of “real property”
45. Vendee
o = usually a buyer of “real property”
46. Will
o = a revocable (until death) declaration of how a person wishes to distribute his property after death
i *most states require a Will to be (1) in writing, (2) witnessed, (3) attested, & some require (4) attestation clause
a Wills are “ambulatory” (revocable + modifiable)

II Overview of Heir/Devisee Laws
A Constitutional Right?
1 General Rule
i = No Federal right for person to “pass” OR “take” property upon death
2 Historically
i Power delegated to States à have authority to pass such laws regarding “testacy & intestacy”
3 In theory
i States could take all property upon decedent’s death
a States can change/modify “inheritance laws” but are limited by U.S. Constitution, Equal Protection Clause of 14th amendment, …
4 Statute of Wills
i = rule permitting a decedent to create a Will for purpose of property disposal upon death
B Conflicts of Laws
1 If Estate is Probated in 2 OR More Statesà
i Will must go through administration of the Will in “every jurisdiction which is affected by the contents of the Will OR Intestacy”
a Some States do NOT allow Wills created in other States to govern the passing of “real property”
(i) *although usually NOT a problem anymore but may still exist w/ passing of land
b NO problems w/ the passing of “personal property”
ii Primary Administration:
a = where decedent was domiciled
(i) Ex: where decedent à spends majority of time, votes, owns property, registers vehicle, pays taxes, place of former employment
iii Ancillary OR Secondary Administration:
a = where decedent owned property but NOT a domiciliary
C What do we do w/ Will when someone dies?
1 Probating (“proving”)the Will à
i Administrative Process:
a = relates to the “proving” of whether a particular document is the “real & valid” Will
b Submission
(i) = when decedent dies à Will is “Submitted” to probate court OR other court w/ jurisdiction over the subject matter
1. Ex: Surrogate court OR Family Property court
c Will Challenges
(i) = upon “submission of the Will à any of those who have standing to challenge the Will’s validity must do so at this time
1. Traditionally:
a. ONLY lineal descendants + certain others could “contest the Will”
2. NOW:
a. Courts allow more persons to challenge the Will
i. Ex: family-friend can challenge the validity of a “Will revocation” if he had the seen the devise in testator’s initial Will
d Admission
(i) = court will then make a determination/evaluation of the “validity” of the Will
1. If Will is determined to be “proven” à Will is “admitted” AND all other non-admitted Wills are “invalid”
D Intestacy
1 Definition
i Default property distribution system of the State which is imposed upon the estates of persons who has died “intestate” OR w/out a valid Will
a State determinesà
(i) Heirs of “intestate decedent”
AND
(ii) Amount each individual heir will receive
2 Ways to Enter Intestacy?
i Decedent did NOT make a Will
ii Decedent executed a “valid” Will but the document “omits/neglects” to deal w/ certain property
a *property purchased AFTER Will was created + executed
iii Decedent has a “signed” Will but “potential heir challenges the Will” due to “incapacity OR some other ground for contestation” AND Will is “invalidated” (or part(s) of the will is invalidated)
3 Statutory Patterns of Intestacy
i East & West Coast
a Usually more “progressive” in law reform
ii OhioÜ OH
a Usually very slow to reform & differ from most other state probate laws
iii Uniform Probate CodeÜ UPC
a Overview
(i) Created a national model probate code for states
(ii) In 1990 à UPC I was reformed + amended creating UPC II
b UPC I AND UPC II
(i) UPC I à 1960-1990
1. OH continues to follow much of the original UPC rules
(ii) UPC II à 1990-Present
1. Many states have reformed laws & taken at least some provisions of UPC II
E Wills
1 Definition
i = formal document that includes testator’s directions on how to distribute his property upon death
a All Wills are à (1) revocable, (2) modifiable, (3) formalistic (i.e. ambulatory)
2 Reason for Wills
i Laws of Intestacy:
a Intestacy Patterns differ widely among the States
(i) Ex:
1. OH à if individual dies w/out Will = all property goes to spouse
2. MI à if individual dies w/out Will = 75% goes to spouse / 25% goes to parents
ii Flexibility:
a Wills allow people to make more exact & detailed decisions on how property will be passed upon death
iii Natural Rights:
a Right to bequeath your property to familiy/kin is thought to be a natural right of all people
3 Mental Capacity Requirement (“of sound mind & memory”)
i If person lacks the requisite mental capacity to create a Will à Will is “invalid”
a Methods of proving/disproving Mental Capacityà
(i) audio/visual recording of Will’s signing/execution
(ii) physical/psychological examination by psychologist
(iii) testimony of people who knew decedent
(iv) other declarations of decedent
b Attorney can NEVER write himself into someone else’s Will:
(i) = presence of attorney as a “taker” in his client’s Will is considered strong evidence of undue influence
a. *testator lacked requisite mental capacity
2. Exceptionà
a. = attorneys may draft Wills for a “member of their immediate family” who desires to leave them a testamentary gift AND this will NOT evidence “undue influence”
4 Wills in General
i Wills are “Ambulatory”
a = revocable + modifiable
ii Wills allow decedent to make decisions NOT provided for under Intestacy:
a Who will be the administrator of the estate?
b Who will care for your minor children?
(i) *preference for guardian
c How to avoid/lessen taxation?
d How to disinherit children?
iii Wills have NO Date of Expiration:
a Wills which are properly created & executed are “valid forever”
(i) *although à usually Wills have much shorter duration
5 Will as Formal Document
i Oral Wills:
a 5 states permit the making of “Oral Wills”
(i) Ex: Ohio
ii Holographic Wills:
a = semi-formal Will which does NOT adhere to all requirements of an express Will made during testator’s “last breath”
(i) Ex: testator writes his Will on the back of cereal box while stranded on a deserted island
iii Trusts:
a = can be used as “Will Substitutes” AND as a “probate-avoidance device”
6 Historical Roots
i Laws of Decent:
a = default rules for Intestate “real property”
ii Laws of Distribution:
a = default rules for Intestate “personal property”
iii Devise of Land:
a = passing “land” to heir via Will
iv “Last Will & Testament…”
a Will =
(i) real property (land)
b Testament =
(i

§ beneficiaries of property are named in “contractual agreement”

o Passing of this property can NOT be modified by Will OR Laws of Intestacy

o Will Substitutes have become an important method of passing property upon death à Wills now have less influence

§ Types of Will Substitutes
o Joint Tenancy w/ Rights of Survivorship
o Joint bank account
o Life Insurance
o Retirement Plans
o Payable-On-Death Bank Accounts
o Transfer-On-Death Deeds
o Revocable Trusts

IV Disqualification for Misconduct
A Slayer Statutes
1 Definition
i = statutes which prevent an “heir” OR “beneficiary” from unjustly-gaining property when they “wrongfully” (either directly OR indirectly) caused decedent’s death
a Prevents a person from killing (either “feloniously OR intentionally”) another in order to be “tangibly enriched by their death”
(i) *also applies to the descendents of the “killer” who would have taken under them
b In some states à ability of mis-conducting heir to “take” is ONLY affected if “convicted” of the crime
(i) Therefore à if killer ______ the inheritance is saved
1. dies before trial
OR
2. declared incompetent
OR
3. pleads to lesser offense
ii Property passing under “Will Substitutes” are NOT affected by most Slayer Statutes b/c they do NOT involve probate court
2 Illustration
i If person dies “intestate” à estate descends to “heirs”
ii If person dies “testate” à estate descends to “devisees” or “legacees”
a *Do NOT call them “heirs”
(i) Heirs:
1. = refers to those who take “by law” under Intestacy
3 Property Law
i Timing of Descent when Decedent Dies:
a = title passes “immediately” to proper heirs
ii Traditional Rule:
a If state prevents property from passing à state infringes on historical principles of property
(i) *property is never in limbo à can NOT disrupt natural order
1. Therefore Ü slayer statutes do NOT prevent passing à they take property away AFTER it is passed to the “mis-conducting heir OR beneficiary” due to his illegal act
(ii) *court will usually create a “constructive trust” for the devised property AND treat the mis-conducting heir as “trustee” holding in the property for the benefit of the “proper heir OR beneficiary”
B Three Types of Slayer Statutes (How to deal w/ Murder?)
1 Title Passes Instantly
i = property passes as normal
a Allows the criminal justice system to find criminal violation à therefore, probate court will NOT be forced to go outside scope of duties
2 Title Does NOT Pass (*do NOT care about Property Law Principles)
i Majority:
a = assumes that title does NOT pass to a person who causes death by murderORvoluntary manslaughter
(i) Problems:
1. may take years to find/prove criminal liability
2. contravenes principles of property law à do NOT want to encumber property
3. person could be found “NOT guilty due to Insanity” AND person’s lineal descendants might take
ii Minority:
a = if found “by a preponderance of the evidence” in civil court Ü regardless of criminal convictionORacquittalà mis-conducting heir/beneficiary can NOT take
3 Constructive Trust (hybrid)
i = do NOT stop property from passing to the mis-conducting heir but treat the person as “holding the title inequitably”
a Probate court creates a “constructive trust” allowing it to take property away from person whether they are willing OR not
(i) Rationale behind Constructive Trust
1. If person receives property for an “improper reason” à person should NOT be able to retain it
2. As “constructive trustee” of the property à court has the power to impose a duty on the “trustee” to give the property to the “rightful owners”
C Problems w/ Disqualification Statutes
1 General Language/Scope of Rule:
i “a devisee or heir, if convicted of intentionally killing a decedent, forfeits any property of decedent’s estate”
a = If the property is passed by Will OR by Intestacy à statute prevents the wrongdoer from taking
2 Loopholes in General Rule:
i Insurance Policies:
a = Named Beneficiary takes “by operation of law OR contract” outside jurisdiction of probate
(i) *slayer statutes do NOT cover “Will Substitutes”
ii Δ is adjudged “NOT Guilty due to Insanity” OR Δ“Dies Prior to Trial”à
a UPC
(i) = anyone who brings about the “felonious” AND “intentional” killing of decedent shall be barred from taking
1. Applies toà
a. heirs, beneficiaries, beneficiaries under trust, joint tenants, joint tenants w/ survivorship
b OH § 2105.19à
(i) NO person who is ______, in OH OR other states à shall take “by Will OR “by Intestacy” OR “by Will Substitute” AND will be treated as having predeceased the decedent
1. convicted of
OR
2. pleads guilty to
OR
3. found NOT guilty due to insanity
(ii) Property that would have passed to the mis-conducting taker is placed in a constructive trust

Intestate Succession
I Overview
A Reasons Why People do NOT have Wills OR Will Substitutes?
1 People will ONLY go to a lawyer if forced to do so à many people see lawyers in a negative light