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Decedents' Estates and Trusts
Villanova University School of Law
Harvey, Christopher M.

Decedent’s Estates and Trusts, Harvey, Fall 2012, 34 pages

Joint Tenants: each own equal, undivided interest in whole.

– Equal, undivided right to keep or dispose of interest

– Right of Survivorship

– Can transfer but become TIC

TIC: possess property simultaneously, may be unequal interests.

– Individual ownership interest – may sell/transfer interest

– NO Right of Survivorship

Tenants by the Entirety: w/ H/W – each own equal, undivided whole

– Single legal owner

– Right of Survivorship

PROBATE:

Probate Place/Choice of Law:

Probated at county of last domicile. If none, any county where property.

Domicile = intent to make permanent home plus taking steps to make domicile.

Personal property – domicile

Real property – location state (situs).

Probate Time:

Will offered anytime. Probate conclusive unless appealed or record amended by later will/codicil.

– Will offered over a year after death is void against bona fide real estate grantee or lien holder if conveyance/lien was entered before the will was offered into probate.

With Probate, Creditors take first except for the Protective Provisions for family:

1) Homestead and Exempt Property

UPC – spouse of children homestead = $15k, exempt prop = $10k

2) Support

UPC – reasonable support to spouse and children that are supporting or suppose to be supporting already

(Protective provisions are controlled by state statute or constitution)

Probate: property held alone or TIC

1) Intestate – statute (no will, invalid will, or partial intestate bc provision discarded (ie- heir killed decedent) or incomplete

– When no heirs, escheats to state.

2) Testate – will (more formalities – SOF, signed)

(Testamentary trust is usually a trust created by will and subject to supervision of the probate court)

Non-probate: property not subject to probate rules: held in JT, TBE

Will Substitutes and

Trusts –inter vivos (created in settlor’s lifetime – less formalities)

Elements:

i) property

ii) held by trustee

iii) to benefit the beneficiary (property invested to generate income for the beneficiary)

Others – retirement, ins policies, bank accounts, POD accounts, gifts, other Ks

Probate Process:

Personal rep handles estate – executor/administrator

Collection of assets/inventory

Notice to interested parties

Family support, homestead, exemptions

Payments to creditors/tax collectors/expenses – satisfy these superior claims first

Resolve beneficiary conflicts

Distribute assets

Probate is only necessary if there are reasons to go through probate:

1) claimant disputes need resolving

2) need to probate to collect the assets

3) need to probate to pay the creditors

4) need probate to provide clear title to the correct survivors

INTESTACY:

Intestate Estate:

Intestate if not effectively disposed of by will or otherwise passed to heirs. Decedent may exclude/limit right to succeed to property by intestate succession. It then passes as if that person had disclaimed his intestate share.

Intestacy Impact:

a) state legislature decides in absence of will – default estate plan

b) identifies interested parties who might challenge a will – standing to sue

c) helps define/ interpret the language of wills (ie- leave to “heirs” or “next of kin”)

d) model for those preparing will/trusts/estate plans

*Intestate Statute Goals:

1) reflect presumed desires of decedents

2) protect dependent family members

3) keep property in nuclear family

4) encourage accumulation of property

Terms:

Heirs: take if decedent dies intestate

Ancestors: before

Issue/Descendants: after

Collaterals: others: brothers, sisters, uncles, aunts, cousins

Not provided for: spouses of heirs

Spouses: consider Conflicts of Law

– If you abandon spouse, you are not considered a spouse to take under intestacy.

– If wife obtains a foreign divorce, H dies, and then W challenges that divorce was not valid, so still married? Estopped from claiming that just to take.

Family: persons related by blood, marriage, or adoption. More recent move to change def or have more functional approach.

Dead: Uniform Determination of Death Act – if irreversible cessation of all circulatory/respiratory functions or cessation of entire brain. (many states haven’t adopted)

Survivors: UPC 2-104 – w/ common disaster – 120 hours.

– burden is on person trying to prove survival

– does not apply if causes to escheat to state

used rather than the – Uniform Simultaneous Death Act – survived if evidence that survived by one second.

Share of Surviving Spouse: UPC 2102: (As long as parents are dead, spouse gets all.)

1) spouse gets entire estate if no surviving decedents or descendants are spouse’s descendant’s too and spouse has no other descendants

2) surviving parent but no issue – first $200k + ¾ of remainder

3) decedent’s descendants are also spouse’s but spouse has separate descendants – first $150 + ½ remainder

4) decedent’s descendants are not of the spouse – first $100k + ½ remainder

Share to non-spouse heirs: (after spouse, or if spouse dead) (by degree of consanguinity, the most remote it covers is decedent’s grandparent’s descendants)

UPC 2103:

1) to decedent’s descendants by representation

2) if none, to decedent’s parents equally

3) if none, to decedent’s parent’s descendants – brothers/sisters and their kids by representation

4) if none, to grandparents – ½ to paternal and 1/2 to maternal, equally to grandparents or by representation to their descendants if grandparents are deceased (doesn’t matter if the descendants are only of the H or W, half bloods count)

5) if no maternal grandparents family (or pat) then 100% goes to one side

UPC 2105: – great grandparents and their descendants do not count under UPC, goes to the state at this point

Representation (UPC 2106): W/ passing to decedent’s descendants:

As many equal shares as surviving descendants in the nearest generation with survivors and deceased descendants in that same generation who left surviving descendants.

(Ie – 4 kids: 3 living, 1 dead with two children. So, each living kid gets ¼ of estate and the two living children of the deceased kid share the remaining ¼.

W/ passing to descendants of parents and grandparents:

Equal shares to surviving descendants in nearest generation to deceased parents/grandparents with survivors and deceased descendants in that same generation who left surviving descendants.

Children:

UPC 2117: Persons born out of Wedlock – If genetic parent, no distinction.

Can inherit from father if:

1) clear and convincing evidence he fa

ultiple generations = not likely).

B. Representation:

1) Strict Per Stirpes – distribute estate as if parties had lived. By number of children living and dead with kids. Each child’s family shares equally. If three kids, one is dead. Each living kid get 1/3 and the family of the dead kid splits 1/3 (ie- if dead kid has two kids, each gets 1/6 but if dead kid had no kids, that child has no family so takes nothing). Problem: this gives varying amounts to the grandchildren when not all lines are present and some have more kids than others.

Pblm 80:9 – Text: If my wife is dead, divide my estate into as many equal shares as there are surviving children (one share to each) and predeceased children who have left surviving descendants (divide remaining share of predeceased child among that child’s surviving descendants).

2) Modified Per Stirpes: Per Capita with Representation – goes to first generation where someone is alive, shares equally split according to survivors in that generation and dead with descendants, then the shares for the dead pass down to their descendants per stirpes. *Where this is different from pure per stirpes is if all children are deceased, then split per capita between the grandchildren (first generation with survivors). Problem: entire generation must be dead or you still use pure per stirpes.

Pblm 80:9 – Text: Just change children to “descendants in the nearest generation to me containing one or more surviving descendants.”

3) UPC 2106: Per Capita at Each Generation – distribute by surviving descendants in nearest surviving generation and the deceased in that generation with surviving descendants. Each survivor in that gen gets one share and the shares for those dead from that generation are combined and split by representation among their descendants (so if one of these grandkids are deceased, their share passes by rep to the great grandchildren in that line).

(use if you want assets to continue down the line rather than those in one class taking)

Pblm 80:9: Text – include descendants in nearest generation + combining remaining shares (from deceased descendants) and divide them in same manner among the surviving descendants.

Representation (UPC 2106):

W/ passing to decedent’s descendants:

As many equal shares as surviving descendants in the nearest generation with survivors and deceased descendants in that same generation who left surviving descendants.

(Ie – 4 kids: 3 living, 1 dead with two children. So, each living kid gets ¼ of estate and the two living children of the deceased kid share the remaining ¼.

W/ passing to descendants of parents and grandparents:

Equal shares to surviving descendants in nearest generation to deceased parents/grandparents with survivors and deceased descendants in that same generation who left surviving descendants.