The Living and The Dead: Who’s Money Is It?
I. Slayer Statutes: UPC §2-803(g): Felonious and Intentional Killing; How Determined
a. (g)…a judgment of conviction establishing criminal accountability for felonious and intentional killing of the decedent conclusively establishes the …individual as the decedent’s killer for purposes of this section. In the absence of a conviction, the court, …must determine whether, under the preponderance of the evidence standard, the individual would be found criminally accountable for the felonious and intentional killing of the decedent. …
II. Effect Where D dies Intestate
a. UPC §2-803(b)
i. Effect of Homicide on Intestate Succession, Wills, Trusts… – Forfeiture of Statutory Benefits.
1. (b) …An individual who feloniously and intentionally kills the decedent forfeits all benefits under this article with respect to the decedent’s estate, including an intestate share…
III. Effect Where D Dies Testate
a. §2-803(c): Revocation of Benefits..
i. … The felonious and intentional killing of the decedent:
1. (1) revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument [e.g. a will or trust]…
b. §2-803(e): Effect of Revocation
i. Provisions of a governing instrument [e.g. the will or trust] are given effect as if the killer disclaimed all provisions revoked by this section …
c. §2-1106(b)(3): Disclaimer of Interest in Property.
i. …(B) If the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution….
IV. Wyoming § 2-14-101 Taking of life precludes one from inheritance…
a. (a) No person who feloniously takes or causes or procures another to take the life of another shall inherit from or take by devise or legacy from the deceased person any portion of his estate…
b. (b) No beneficiary of any policy of life or accident insurance …, payable upon the death of any person, who … takes or causes … another to take the life of another, shall take the proceeds of such policy ….
c.
The Role of the Lawyer, and the Lawyer-Client Relationship
I. Rules of Professional Conduct: Rule 1.6 Confidentiality of Information
a. (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation…
II. Rule 1.7 Conflict of Interest; General Rule
a. (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
b. (1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
c. (2) each client consents after consultation.
III. Joint Representation – Disclosure and Consent (Form)
a. Recent changes in [state] law have made it particularly important that spouses understand the basis upon which an attorney may represent them together in estate planning…
b. If each of you had your own attorney, you would each have an “advocate” for your position and you would each receive totally independent and confidential advice from you attorney. All information that you gave to your separate attorney would be confidential, and none of that information could be disclosed to your spouse without your consent.
c. That is not the case when one firm advises both of you jointly. We cannot advocate for one of you against the other if we represent both of you. Information that either of you give to us relating to your will and your estate planning will be available to the other…..
IV. In Re Estate of Drwenski 83 P.3d 457 (Wyo 2004)
a. In determining whether an attorney owes a limited duty to a nonclient-plaintiff who is suing the attorney for malpractice, if the plaintiff was not an intended beneficiary of the transaction, the plaintiff lacks standing to sue the attorney for legal malpractice; “intended beneficiary” of the transaction means that the transaction must have been intended to benefit the plaintiff, and it is not enough that the plaintiff may be an incidental beneficiary of the transaction.
b.
Probate and Non-Probate Transfers
I. Probate
a. Generally used to refer to matters concerning the administration or transfer of the assets under the will or by intestate succession.
II. Non-probate
a. Generally refers to transfers from the decedent to beneficiaries outside of the terms of a will but within the terms of another document.
b. Joint Interests with Rights of Survivorship
i. When an intended joint tenant or tenant by the entirety dies, the transfer of property is a “non-probate” transfer.
ii. The Surviving joint tenant takes the property not as the decedent’s “heir” or by the terms of decedent’s will, but by the terms of the instrument that created the joint tenancy.
iii. Thus, the property never passes through the probate estate of the first to die.
c. Non Probate Transfers Cont.
i. P.O.D. Designation (Payable on Death)
ii. T.O.D. Designation (Transfer On Death)
iii. Beneficiary Designation
III. Intestate Succession
a. Most Americans die without a will.
b. Property of a person who dies without a will – e.g., “intestate” – will be distributed in accordance with the intestate succession statutes in effect in the jurisdiction.
c. Also applies in instances where a will is determined to be wholly or partially invalid.
d. Applies in instances where a will makes reference to the “heirs” of a particular person.
e. Can also apply to determine whether a person has standing to contest a will.
Fundamentals of Intestate Succession
I. The share of the surviving spouse
a. “Descendants” take to the exclusion of “collaterals”
II. Distribution among collaterals
a. Only blood relatives (and the surviving spouse) inherit.
b. Table of Consanguinity
III. Uniform Probate Code – Intestate Estate
a. §2-101. Intestate Estate
i. (a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by the decedent’s will…
b. UPC: §2-102. Share of Spouse
i. The intestate share of a decedent’s surviving spouse is:
1. (1) The entire estate if
a. (i) no descendant or parent of the decedent survives the decedent; or
b. (ii) all of the 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;
2. (2) the first [$300,000], plus three-fourths of any b
ation”
a. UPC: §2-103: Share of Heirs other than Surviving Spouse
i. Any part of the intestate estate not passing to the decedent’s surviving spouse under §2-102, or the entire estate if there is no surviving spouse, passes in the order to individuals designated below who survive the decedent:
1. (1) to the decedent’s descendants by representation;…
b. UPC §2-106. Representation
i. (b) Decedent’s Descendents …If under §2-103(1), the decedent’s intestate estate or part thereof passes ‘by representation’ to the decedent’s descendents, the estate or part thereof is divided into as many equal shares as there are (i) surviving descendents in the generation nearest to the decedent which contains one or more surviving descendents and (ii) deceased descendents in the same generation who left surviving descendents, if any. Each surviving descendent in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendents of the deceased descendants as if the surviving descendents who were allocated a share and their surviving descendents had predeceased the decedent.
Who Takes
I. The Share of Lineal Descendents – UPC
a. The Share of Ancestors and Collateral Heirs
b. General Practice (Most Intestate Succession Statutes).
i. Direct lineal descendents take to the exclusion of collaterals.
ii. Issue of parents take to the exclusion of issue of grandparents.
II. UPC: §2-103: Share of Heirs other than Surviving Spouse
a. [part that spouse did not take or if no spouse], passes in the order to individuals designated below who survive the decedent:…
i. (3) if there is no surviving descendant or parent, to the descendants of decedent’s parents or either of them by representation;…
ii. (4) if there is no surviving descendant, parent, or descendant of parent, but decedent is survived by [GPs or descendants of GPs], half of the estate passes to decedent’s paternal grandparents equally…[or to the survivor if one GP is dead], or to the descendants of the …paternal grandparents [if both GPs are dead], the descendants taking by representation; and the other half [passes in the same manner to Ds’ maternal relatives]
III. UPC § 2-103(5): (one set of GP’s and their descendants are all dead)
a. (5) if there is no surviving descendant, parent or descendent of a parent, but the decedent is survived by one or more grandparents or descendents of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the descendent’s relatives on the side with one or more surviving members in the manner described in paragraph (4).
