PROBATE. 3
Definitions: Can find in EPIC – §1104. 3
THE FAMILY PROPERTY LAWYER.. 3
DONATIVE FREEDOM… 3
PROBATE PROCESS. 3
UPC.. 4
INTESTATE SUCCESSION.. 4
General Patterns of Intestate Succession. 4
DESCEDENTS – inherit to the exclusion of decedent’s ancestors. 5
Parents. 5
Ancestral Property – At common law, land returned to branch of the family from which the decedent inherited it5
Limitations on Inheritance. 6
Problems p. 65. 7
Nearest Kindred- Determining degrees of kinship. 7
Agreement Among the Heirs (rearranging intestate succession) – 66. 7
Disclaimers – §2901- §2902. 7
Formality v. Discretion – 73. 7
Negative Wills- expressly exclude or limit the right of an individual8
INTESTATE SUCCESSION.. 8
Formal Marriage. 8
Divorce, Separation, Misconduct – 81. 8
Putative Spouses. 9
Domestic Partnerships. 9
Who is a Descendant?. 10
Example. 11
Children of Parents not Married To Each Other12
Rules of Construction for Class Gifts – 144. 12
ADOPTION OF ADULTS – 152. 13
Stepchildren and foster children left out of a class gift13
EXECUTION OF WILLS. 14
VALID WILL. 14
Formalities of Execution: the Proponent’s Case – 170. 14
Attested Wills. 15
The Attestation Requirement16
· Line of Vision Test17
Interested Witnesses-Disqualified at common law.. 18
Purging Statutes. 18
UPC §2505. 18
Statutory Will18
Unattested Wills. 18
Holographic will statutes. 18
GROUNDS FOR CONTEST; THE CONTESTANTS CASE – 211. 19
Lack of Testamentary Intent19
Problems – 231. 21
Constructive Trust and Other Remedies – 267. 23
Unattested Documents and Events – 275. 24
Revocation of Will26
Example. 27
Revocation by Act to the Document – Don’t apply §2503 here – 298. 27
Revocation by Divorce – 322. 31
Revival of a Revoked Will- §2509 – 324. 32
Problems Created by the Time Gap in Wills. 34
Post-Execution Changes In The Estate. 35
Accessions and Accretions – 362. 37
Abatement – 369. 37
Ademption by Satisfaction – 371. 38
Post-execution Changes Relating to Persons – Lapse and Antilapse – 374. 38
Differences b/w UPC and Common Law.. 39
UPC (matters if you are a relative: use 2603 if relative 2604 for not a relative)39
Residuary. 39
Class Gifts – 385. 40
Taxation – 391. 40
Non-Probate Transfers. 45
Other Will Substitutes. 47
WILL SUBSTITUTES AND THE SUBSIDIARY LAW OF WILLS – 469. 48
Revocation Upon Divorce. 48
ERISA Preemption of State Probate Law.. 49
Anti-lapse Statutes – 485. 49
Ademption by Extinction – 497. 50
Coordinating the Parts Into a Coherent Whole – 500. 51
Homicide As Affecting Succession to Property – 506. 51
Spouses Elective Share – §2201-2214 – 582. 52
Equitable Distribution Upon Divorce – 589. 52
Conventional Elective-Share Law – 592. 52
Protection Against Will Substitutes – 600. 53
The Incapacitated Surviving Spouse – 622. 54
Premarital and Post-marital Agreements – §2201. 54
Tax Implications of an Election. 55
Probate Exemptions and Allowances – 639. 55
Other Restrictions on Freedom of Disposition. 55
Will Contracts. 56
Reforming Donative Documents other Than Wills. 57
Resolving Ambiguities in Will and other Donative Documents. 58
1. Ambiguous Descriptions of Persons or Property. 58
Mistakes in Inducement60
Mistaken Omissions. 60
Mistaken Inclusions (Remedy)61
Reformation Doctrine For Wills – 718. 61
Trusts: Formation and Formality – 751. 63
Estate-Planning Uses of Trusts – 758. 63
Constructive Trusts/Resulting Trusts – 765 – this is not a real trust, it is a remedy. 64
® This is a fraud-rectifying trust – It more like a remedy than a trust, closely associated w/ quasi-K.. 64
® The purpose of this remedy is to prevent unjust enrichment.64
Formation of a Trust – 767. 64
Intent to Create a Trust – 776. 65
Precatory Trust – 783. 66
Parties to a Trust – 786. 66
Devolution of a Trustee’s Title upon Death. 67
Lack of Trustee – 789. 67
Indefinite Beneficiaries – 796. 68
Relatives as Beneficiaries – 805. 69
Honorary Trusts – 808. 69
Formalities in the Creation of a Trust: unjust enrichment – 810. 69
Testamentary Trusts: Statute of Wills – 819. 70
PROBATE
Performs 3 essential functions:
(1) Making property owned at death marketable again (title-clearing)
(2) Paying off the decedent’s debt (creditor protection)
(3) Implementing the decedent’s donative intent respecting the property that remains once the claims of creditors have been discharged (distribution)
Definitions: Can find in EPIC – §1104
Estate – includes the property of the decedent, trust, or other person whose affairs are subject to this act as the property is originally constituted and as it exists through administration.
Heir – a person, including the surviving spouse or the state, that is entitled under the statutes of intestate succession to a decedent’s property.
Will – a codicil and a testamentary instrument that appoints a personal representative, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to the decedent’s property that is passing by intestate succession.
Disclaim – property the right receive or control property, and a power of appointment. Disclaimable interest does not include an interest retained by or conferred upon the disclaimant by the disclaimant at the creating of the interest.
THE FAMILY PROPERTY LAWYER
Families are changing especially relationships and what their definitions of family and try to help them in their best interest and give effect to the relationship that exists.
In general, we have a tradition in the direction of donative freedom
DONATIVE FREEDOM
Cultural Tradition: The right to pass your property on during life or at death, the right to choose who gets it, the right to choose the form in which they get it, and the right to give another person the right to make those choices.
Limits on donative freedom based on social considerations and freedom.
Constitutional reasons for donative freedom:
Irving trust Co. v. Day (8): limitation on donative freedom.
14th amendment does not prohibit a state from granting the decedent’s surviving spouse an elective share in the decedent’s estate
Due Process of Law- if one has a property interest, that interest cannot be interfered with w/o due process
Hodel v. Irving (8-9):
Tribes had law passed that part of land had to go to tribe so if it got down below a certain value the tribe had the right to take the land. They wanted to keep the land for the tribe.
Supreme court found that the gov’t restriction on a property owner’s right to transfer property at death amounted to a taking w/o just compensation.
Ex. of unjustified restriction on donative freedom
Terminology – p. 14
® Personal representative controls the decedent’s estate (whether or not there is a will)
PROBATE PROCESS
Intestate succession is a statutory default mechanism that becomes operative when a property owner dies w/o having executed a will or w/o having executed any will substitutes.
If this occurs, the estate must go through probate
Probate process: gather all assets, sort debts/pay creditors, confirm ownership in decedents heirs
4 main will substitutes: life insurance, pension accounts, joint accounts, and revocable trusts. By using any of these 4, you can avoid probate
Pure Will Substitutes: each reserves to the owner complete lifetime dominion, including the power to name and to change beneficiaries until death.
Life insurance,
Joint bank account- not really a pure will substitute since beneficiary has access before the death of the primary holder
Revocable trusts, avoids probate b/c it is the trust itself that holds title to the property
Pension accounts.
These are just like a will b/c they pass things at death and are completely ambulatory, i.e. completely revocable – don’t need permission of anyone else to revoke
Imperfect Will Substitutes:
® Joint tenancies – more closely resemble lifetime transfers – these are at least partially non-revocable – will need someone else’s permission to revoke
® If a house was held in joint tenancy, both tenants must agree for the house to be sold
® Joint tenancy arrangements allow the survivor to obtain marketable title w/o probate – a death certificate rather than a probate decree suffices to transfer title
Will substitutes are popular b/c courts are not needed for probate matters b/c there are not many disputes.
Personal representative is given the power to distribute the estate. The court gives a lot of discretion to the personal representative.
Each beneficiary must be notified about what will happen.
UPC very nicely resolves the dilemma do you have to go to court or do by K on your own.
UPC
· Reflects 4 fundamental policy objectives;
To respect to the changes in the American family, especially the multiple-marriage society;
To extend the partnership theory of marital property
To move toward unification of the law of probate and nonprobate transfers; and
To diminish the formalistic barriers to the implementation of transferors’ intentions.
INTESTATE SUCCESSION
Most people who die prematurely die intestate, however most have life insurance therefore a will substitute.
Historical roots;
English customary descent. Descendants come first and then ancestors and collaterals.
There was also primogeniture where the son gets land over daughter
General Patterns of Intestate Succession
Spouse – §2102
Under most statutory schemes, the surviving spouse inherits the entire estate if the decedent leaves no surviving descendants or parents.
§2102 – intestate share of a surviving spouse
Make sure that if you put in 43k allowance to subtract from what children are entitled to get
(1) The intestate share of a decedent’s surviving spouse is 1 of the following: (a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.
(b) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all 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.
(c) The first $150,000.00, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
(d) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.
(e) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.
(f) The first $100,000.00, plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.
From a policy standpoint for people with modest estates the surviving spouse is going to get the entire estate w/o giving any to children.
It is thought that the surviving spouse will be better able to take care of money and have the children benefit from it.
Note: keep in mind of §2102, if there is any child of the decedent who is also the child of the surviving spouse the surviving spouse gets 150k and half balance.
In the event where there is not a joint child between the decedent and surviving spouse, and the decedent has child w/ another partner, the spouse gets 100k, plus ½ balance of the estate.
EPIC decided to treat spouses the same so long as have kids in common. It doesn’t matter if one or all the kids are from the decedent. (F is the only exception)
Determining intestate share to be received by spouse under §2102 – see p. 59
® Dave dies with an estate of $500,000 and leaves mother Margaret, wife Susan and sons Corey and Cal
® Susan gets $150,000 plus $175,000
® Corey and cal would split the remaining $175,000; Margaret takes nothing
® If there were no kids, wife would get $412,500 and Margaret would get $87,500 under §2102(1)(c)
® As the estate value gets larger, there is less a preference for the spouse and the children get proportionately more
DESCEDENTS – inherit to the exclusion of decedent’s ancestors
Descendants Share
In the absence of a surviving spouse, the entire estate is given to the decedent’s descendants.
Descendants universally inherit to the exclusion of the decedent’s ancestors, such as parents and grandparents, and to the exclusion of collateral relatives, such as brothers and sisters
Any share that goes to decedent’s descendants is divided among them by representation
(a) Principal feature of representation is that property is divided among the living persons who are nearest to the decedent in each descending line
(b) See charts 1,2,3 on 47, 48.
Collaterals are precluded by laws of intestacy if decedent is survived by a spouse, children, or parents
Ancestors and Collaterals – 56 §2103
a. A collateral relative is a descendant of an ancestor, excluding, however, the decedent’s own descendants and ancestors
b. Examples of collateral relatives are brothers, sisters, nieces and nephews,
orced upon a transferee.
Goes as if you didn’t’ exist. Way to avoid the gift tax.
Acts as if the persons disclaiming dies before he gets the inheritance.
Diff. Between disclaimer and gift. A disclaimer has never reached the person
Don’t have to know that it is a valid disclaimer
Reasons for doing it: If you disclaim, you don’t have to pay the taxes on the gift and the money passes right to the other decedents
If very wealthy and want children to get the money, then disclaim
Formality v. Discretion – 73
The tradition of formality in intestacy law can usefully be compared to the highly discretionary legal regime concerning marital dissolutions.
Traditional legislation does not authorize a court to inquire into the harmony or disharmony in the marital relationship.
Hard for a court to change intestate succession based on need. Be aware of the different issues b/c right now it is not discretionary and law is changing.
2 possible ways intestate succession can be changed w/o will or agreement – 74
Advancement: – §2109
It is a gift made by a decedent during life to a family member. .
Transfer has the effect of reducing the share of the probate estate that the family member receives under the intestate succession statute upon the decedent’s death.
Primary purpose is to further the intestacy statute’s distribution pattern that assures equal treatment among the decedent’s children
By taking into account lifetime parental gifts to children, the advancement doctrine achieves more equal sharing by the children of their parent’s wealth when the parent dies w/o a will.
§ 2109 requires a writing, either by the decedent indicating the intent to make an advancement or by the donee acknowledgement the gift as an advancement
The writing does not have to be in the form of a will
The word advancement does not have to be used – may be able to show the intent was that of an advancement from the writing
Under subsection 2, the gift is valued at the time the heir came into possession of the property.
(3): if the recipient of property advanced fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.
Hypo: suppose G makes a lifetime gift to his daughter’s child accompanied by a writing that he intends the gift to be an advancement. If G dies intestate, G’s daughter predeceases him, and her child survives him, this is an advancement. If G’s daughter survives him, however, the gift is not an advancement because the grandchild is not an heir.
Negative Wills- expressly exclude or limit the right of an individual
Testator’s will did not have a residuary clause, and failed to dispose of her residence. The court reasoned that b/c the intestate property passed by law, rather than by will, the statute, and not the testator controlled the distribution of the property. – Common law
Common law- excluded person from will may still get stuff via intestacy. The intent to disinherit expressed in a will has no effect on the distribution of intestate property.
§2101 (2): if a testator writes a will that disinherits an heir, the heir is presumed to have disclaimed. It allows one to exclude or limit the right of an individual to inherit. – Epic is different than common law
Even if the will is ineffective, 2101(2) still keeps person out. D’s intent will still be effectuated and that person is treated as though he disclaimed
Waring v Loring 77-78
® In a will, husband said the benefits to wife were in lieu of dower and of all her statutory rights in or to any part of his estate
® The will partially failed, so wife could take both b/c intestacy does not require a spouse to make an election and does not disrupt the testator’s distributive plan
® This decision was limited to partial intestacy that resulted from an ineffective provision in a will
Surviving Spouse 80
Formal Marriage
§2801- Who qualifies as a surviving spouse, a list of situation in which a person is not a surviving spouse, and what makes a divorce valid
Divorce, Separation, Misconduct – 81
If the decedent’s marriage was dissolved, by a divorce or annulment, the decedent’s former spouse loses the status of surviving spouse
Likewise, if the decedent’s marriage was void b/c it was bigamous, incestuous, or preceded by an invalid divorce decree, the decedent’s would be spouse doesn’t have the status of surviving spouse
EPIC §2801
An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death.
A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
This section gives a list of situations in which a person is not a surviving spouse
§2-801 (2) it gives a list of situations in which a person is not a surviving spouse.
Not identical to UPC provision. The difference is the addition (2)(e).
Dissertion, adulteration, bigamous- reasons for no taking, not in all states
Court may interpret physical and emotional abuse as constructive abandonment
Putative Spouses 82
