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


Professor Harvey – Fall 2014


A. The Process (Governed by State law)

1. Administration of Property at Death

i. Step 1: Find the Will

ii. Step 2: Determine assets and debts (keep track of expenses)

iii. Step 3: Open the Estate

a. Whether decedent passed with or without a will, personal representative must oversee identifying the assets, paying the debts, and distributing excess to survivors

b. The person would be called an executor if named in the decedent’s will, otherwise he will be referred to as an administrator

2. Where does Probate Occur?

i. For real property, we probate where the property is located

ii. For out-of-state property, must follow out-of-state law

iii. Intangible personal property (investments) will be probated wherever decedent was domiciled

iv. Tangible personal property varies from state to state.

a. Some say it is probated where decedent was domiciled; others say it is to be probated where the tangibles are located

v. Can be expensive if you must probate property in several different states

B. Guardianships

1. People need guardians when they cannot handle their own affairs

2. The court will appoint a guardian of the person who has the responsibility to care for a child or a guardian of the property, or a guardian ad litem (appointed to protect the children’s interests in litigation

3. A guardian in one state may in another be called a conservator, curator, or a committee, although the disabled person typically is referred to as the ward

4. Parents often use their wills to name guardians

i. Under UPC § 5-202, guardians so named can assume office upon probate of the will without court approval


A. Overview

1. Terminology

i. Heirs – those people connected to you by blood (expanded to include adoption and marriage) that are identified by the statute to take the estate in intestacy

ii. Ancestors – includes parents, grandparents, etc. (those above you in your family tree)

iii. Descendants / Issue – a multigenerational group including children, grandchildren, and down the continuing line (those below you in your family tree)

iv. Collateral – those people outside of the lines of ascent and descent: aunts, uncles, cousins, brothers, and sisters (on the same level as you in your family tree)

v. Escheat – if there are no qualifying heirs, property passes to the state

2. Applicability

i. No will

ii. Improperly executed or invalid will

iii. Incomplete will that does not dispose of all assets (partial intestacy)

iv. Discarded provision(s) of will (partial intestacy)

v. Choose to apply intestacy

3. Survivorship

i. Uniform Simultaneous Death Act §1: Where there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived

a. Doesn’t address non-simultaneous deaths that occur at approximately the same time

ii. UPC §2-104(a): Must survive decedent by 120 hours (5 days) or if in gestation at decedents death, must live for 120 hours

a. However under UPC § 2-104(b), survival requirements don’t count when the only taker would be the state

iii. Pennsylvania § 2104(10): Must survive decedent by 5 days.

iv. Common Disaster Approach: Where both parties die from a common disaster, neither is presumed to have survived the other.

v. Note: Wills can specify different length of survival requirement.

4. Choice of Law

i. Generally follows the laws of the state where you are domiciled at the time of death

ii. Courts usually apply law of the situs of property to questions surrounding realty (in rem)

iii. Courts usually apply the law of decedent’s domicile to questions concerning personalty (in personam)

5. Protective Provisions

i. Protects family by giving them a right to estate assets “off the top,” before creditors’ claims and before distribution according to the intestate statute (or the will, if there is one)

a. These rules apply whether you have a will or not (intestacy & wills)

b. These provisions are mandatory unless the law specifically makes them discretionary (then you can draft around them in your will)

ii. Two main types of protective provisions:

a. Homestead and Exempt Property

1. Leaves a portion of the value of the house

2. Some protections apply only to minor children

3. UPC § 2-402(Homestead): Provides the surviving spouse or children a monetary homestead allowance of $22,500 AND

4. UPC § 2-403(Exempt): Provides the surviving spouse or children an exempt property allowance of $15,000.

b. Money/Support Allowance

1. Provides form of support to help the family live while the estate administration is open

2. UPC § 2-404: grants a “reasonable allowance” to the surviving spouse, minor children the decedent was obligated to support, and children the decedent was in fact supporting

i. (E.g., Family taken care of for next 12 months, by $1000 per month)

ii. In addition to the homestead allowance and exempt property

iii. Can be overridden by will provision

6. UPC Basics

i. Overview

a. Blood relatives are favored à relatives that would inherit are usually those related by blood and adoption (contrast with those related by affinity/marriage)

b. Family lines matter à “look down, look up, look down, look up” technique

1. First look down to descendants; if more than one child, follow each child’s line down, stopping when you find a survivor

2. If there are no descendants, look up to parents

3. If none, look down to sisters and brothers and, if necessary, nieces and nephews

4. If none, look up to grandparents (on both sides)

5. Then, look down again to aunts, uncles, cousins

6. *** Don’t go any farther up than grandparents

c. Stop when you find survivors à living survivors cut off those further down the line

d. Degree of relationship matters à count steps between decedents and other relatives (table of consanguinity p.71)

e. Representation can affect shares à some statutes use predeceased person as a placeholder to determine how shares are divided

ii. UPC § 2-102: Share of Spouse (p.43)

a. (1) The entire estate if:

1. No decedent or parent of the decent survives decedent; OR

2. All of the decedent’s children are also children of spouse and vice versa.

b. (2) First $300,000, plus ¾ of any balance of intestate estate, if no surviving descendant, BUT a surviving parent

c. (3) First $225,000, plus ½ of any balance of intestate estate, if ALL decedent’s surviving descendants are also descendants of the surviving spouse AND the surviving spouse has at least one surviving descendent who is not a descendant of decedent

d. (4) First $150,000, plus ½ of any balance of intestate estate, if at least one of decedent’s descendants are not the descendants of surviving spouse

e. ***Any amount not given to the spouse is then governed by § 2-103

**Before moving onto next step, make sure you have spouse’s share figured out. Spouses are preferred in intestacy but, if there is no spouse, everything passes. **

iii. UPC § 2-103: Share of Heirs other than Surviving Spouse (p. 43)

a. (a)(1) To the decedent’s descendants by representation;

b. (a)(2) If no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent

c. (a)(3) If there is no surviving descendent or parent, to the descendants of the decedent’s parents (siblings) or either of them by representation (nieces & nephews)

d. (a)(4) If there is no surviving descendant of the decedents parents, go up to grand parents and back down (i.e. aunts & uncles, etc. until you find an heir

1. Half passes to paternal and o

nder is determined at birth

2. Gender is determined at the time of marriage

vii. Domestic Partner Legislation

a. Meant to allow people to have legally unconventional relationships but still be counted as spouses for intestacy (same sex, transgender, etc.)

b. But same-sex marriage is NOT protected under the UPC

viii. Invalid divorce: If court determines divorce invalid, spouse may be able collect via intestacy

a. BUT, Probate courts are courts of law and equity, will not allow spouse to collect if monumentally unfair

2. Descendants

i. Non-marital children

a. Mother and father are not married

b. UPC § 2-117. No Distinction Based on Marital Status: A parent-child relationship exists between a child and the child’s genetic parents regardless of the parent’s marital status

c. Issue is more with determining the genetic father à more sexist towards men in their relation to non-marital children:

d. Usually most prove paternity through clear and convincing evidence:

1. Paternity tests

2. DNA test

3. Birth certificate

ii. Adopted persons

a. Three questions to consider

1. Can the adopted child still inherit from the birth parents?

2. Can the adopted child still inherit from the relatives of either the birth parents or the adopted parents?

3. Who inherits if the adopted child were to die?

b. Equitable Adoption

1. When there is no actual adoption but there is a relationship between the decedent and the child that suggests the decedent might as well have adopted the child

2. Usually requires there to be no involvement with the natural parents

3. Equity treats the child as a child of the equitable parent for intestacy purposes

c. Fresh Start Approach (UPC)

1. The child is the child of the adoptive parents and they are no longer children of the genetic parents

i. Nice and tidy

ii. Cuts ties with birth parents

iii. Inserts child into family tree

2. UPC follows this approach à adoptive parents are in, genetic parents are out (UPC § 2-118 & UPC § 2-119).

3. UPC § 2-118: A parent-child relationship exists between an adoptee and the adoptee’s adoptive parent or parents

4. UPC § 2-119. Adoptee and Adoptee’s Adoptive Parents

i. (a) No parent-child relationship exists between an adoptee and the adoptee’s genetic parents

ii. (b) Parent-child relationship exist between an individual who is adopted by the spouse of either genetic parent and:

a. The genetic parent whose souse adopted the individual; and

b. The other genetic parent, but only for purposes of the right of the adoptee or descendent to inherit from the other genetic parent

iii. (c) Parent-child relationship between both genetic parents and an individual who is adopted by a family member, or spouse of a family member, but only for purposes of the right of adoptee to inherit

iv. (d) A parent-child relationship exists between both genetic parents and an individual who is adopted after the death of both genetic parents, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit through either genetic parent