Introduction to wills
I. Probate Process – Court proceeding for an estate
a. Probate serves three purposes:
i. Probate allows the clearing of title to property
ii. Orderly transfer to the named beneficiaries
iii. Pay debts
II. Dead Hand Control
a. We give a fair amount of deference to the decedent
i. Invalid Conditions
1. Absolute Restraints on marriage
a. Exceptions – Partial Restraints
i. Shapiro case
1. Son had to be married within seven years of death to a Jewish woman or else did not get his inheritance
2. He sued challenging the control given to the decedent, the court found the restriction open enough that it should be upheld
3. The reason being there were enough people who met the criteria if it had been more narrowly tailored it may have been shot down
b. Restrictions on second marriages are generally held valid
i. You can say that for the rest of your wife’s life she may not marry or else she forfeits the inheritance
2. The burden is on the complaining party to show that it is to narrow
a. Need to show that it would be nearly impossible to follow the will
3. Property Destruction Directive
a. Sometimes artists wish things to be destroyed upon their death, but it can be public policy argument that the items are better to be kept for society
4. Restrictions on 2nd marriages are permitted. A man puts a restriction on a wife that she cannot remarry.
5. Promoting Family Strife
a. Will not enforce provisions that interfere with family. “My son gets the money if he doesn’t talk to his sister anymore.”
III. Professional Responsibility Issues
a. Duties to intended beneficiaries
i. Simpson v. Calivas
1. Decedent seemed to have wanted the son to have the land and the business and the wife the house on the land
2. Old common law rule
a. You must be in Privity of contract in order to have standing to sue
3. Modern rule
a. Third party beneficiaries have standing to sue if they can show they were intended beneficiaries
b. Until the person dies there is no beneficiary of an individual
b. Conflicts of interest
i. A v. B
1. Law firm is representing both parties of the matter by accident because of a misspelled last name
2. So the expectations of the attorney client privilege is that there should not be any expectation of confidentiality among the parties because they are being represented together, so the other spouse has no expectation of confidentiality with each other
3. So in a joint representation you must make it crystal clear that anything said to the attorney by either of the parties can be disclosed to the other party and there is no expectation of privacy
Intestacy – when there is no will
I. Spouse Shares with intestacy
a. Intestates share of surviving spouse
b. Under this if there is no will, but you will follow below, but if there is something that has a beneficiary they will get it no matter what
c. UPC 2-101 – Intestate Estate
i. Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs
d. UPC 2-102 – Share of Spouse
i. If we have a husband and wife and the wife survives the husband and there are no descendants that survive or parents then the surviving spouse gets everything.
ii. The surviving spouse will get everything if:
1. All the decedent’s descendants are that of the spouse (children are both theirs)
2. And there is no other descendant of the surviving spouse who survives the decedent
iii. One parent of the decedent is alive and the spouse survives and there are no other descendants
1. The first 300,000 plus ¾ of any balance of the intestate estate
2. The spouse could still get all of the estate if it is worth fewer than 300,000.
3. This does not reflect those items not passed through probate (life ins policy)
iv. All of the decedent’s surviving descendant’s are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not that of the decedent
1. The first 225,000 plus ½ of any balance of the intestate estate
2. The other half goes to the shared descendants
v. One or more of the decedent’s surviving decedents are not descendents of the surviving spouse
1. The first 150,000 plus ½ of any balance of the intestate estate
2. The other half goes to the decedents descendents
e. PaCS 2102 – Code Itself
i. The intestate share of a decedent’s surviving spouse is:
1. If there is no surviving issue or parent of the decedent, the entire intestate estate.
2. If there is no surviving issue of the decedent but he is survived by a parent or parents, the first $30,000 plus one-half of the balance of the intestate estate.
3. If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the first $30,000 plus one-half of the balance of the intestate estate.
4. If there are surviving issue of the decedent one or more of who are not issue of the surviving spouse, one-half of the intestate estate.
5. In case of partial intestacy any property received by the surviving spouse under the will shall satisfy Pro Tanto the $30,000 allowance under paragraphs (2) and (3).
II. Who is a spouse under intestacy
a. If the statute does not include domestic partners then they are not included
b. Living with someone is not sufficient (Co-habitation is not sufficient)
c. If the decree of dissolution has not been entered you are still married
III. Simultaneous Death
a. Apply separately to each decedent:
i. Be sure to start the analysis all over again when analyzing who gets the second-to-die decedents property
ii. Start with the decedent who died first
iii. Check to see if the claimant actually and legally survived the decedent
iv. Then when analyzing the who gets the second-to-dies property, start the analysis all over again
b. Janus v. Tarasewicz
i. Stanley dies from taking tainted pills, wife then collapses afterwards from taking the pills
ii. Stanley was pronounced dead at hospital, but wife had low levels of pulse rate after two days on respirator she was determined to be brain dead
iii. At issue was a life insurance policy for Stanley
1. Surviving spouse was the beneficiary, if she was dead then the mom would be his beneficiary
2. Question becomes who gets the money?
a. The argument is who died at first
i. Burden is on the surviving spouse to show sufficient evidence of survival (So to claim on behalf of the party they must show that she survived Stanley) (This is the legal test)
1. If she survived Stanley than she got the money and it goes to her family or whomever
2. Sufficient evidence:
a. Expert witnesses (Doctors, etc.)
b. Reason for the policy
i. The belief is that Stanley had the policy so that his wife could use the money, no inclination that he wanted it for her parents, as if not her it went to his parents
c. UPC 2-702 and USDA 2.3
i. Each provides that an individual not established by clear and convincing evidence to have survived another individual by 120 hours is deemed to have pre-deceased the other individual
d. PaCS 2104(10) Requirement that heir survive decedent for five days
i. Any person who fails to survive the decedent by five days shall be deemed to have predeceased the decedent for purposes of intestate succession and the decedent’s heirs shall be determined accordingly.
ii. 5 days – intestate
1. Instead of 120 hours
e. PaCS 8501 – No sufficient evidence of survivorship
i. Where the title to property or the devolution thereof depends upon priority of death and 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
f. PaCS 8502 – Beneficiaries of another person’s disposition of property.
i. Where two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries, and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
g. PaCS 8503 – Joint tenants or tenants by the entirety.
i. Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed, one- half as if one had survived, and one-half as if the other had survived. If there are more than two joint tenants, and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
h. PaCS 8504 – Insurance policies.
i. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
IV. Intestate Distribution Systems
a. American/ Modern Per Stirpes
i. We make the break at the first level where someone is alive
ii. Then give one share to each person alive on that level and a similar share to any dead person who has living issue
b. UPC – Per Capita @ ea. Generation
i. Always make the first division at the first generation where there is a live taker and the dropping shares drop by pooling – combine them and distribute them equally among the eligible takers at the next generation
ii. Step 1
1. At which generation should the decedents property be divided first? Under per capita whe
istake made for her when she lacked the legal capacity to do so
b. Posthumous Children
i. Children who are born after the death of their father
ii. Are generally entitled to receive a share of the fathers estate
iii. UPA 204(a)(3)
1. A man is presumed to be the father of a child if:
a. Before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment
iv. PaCS 2104 (4) – After-born persons; time of determining relationships
1. Persons begotten before the decedent’s death but born thereafter shall take as if they had been born in his lifetime.
c. Nonmarital Children
i. Children born out of wedlock
1. PaCS 2107 – Intestate
a. Child of mother – For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his mother.
b. Child of father – For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:
i. If the parents of a child born out of wedlock shall have married each other.
ii. If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child
iii. If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.
2. PaCS 2514(8) – Testate
a. In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in accordance with the following rules:
i. Persons born out of wedlock – a person born out of wedlock shall be considered the child of the natural mother and also of the natural father if paternity of the natural father has been determined
3. UPA 204 Presumption of Paternity
a. A man is presumed to be the father of a child if:
i. He and the mother of the child are married to each other and the child is born during the marriage;
ii. He and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce
iii. Before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce [, or after a decree of separation];
iv. For the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own.
d. Reproductive Technology and Parentage
i. Woodward v. Commissioner of Social Security
1. Children were born after the father was deceased due to the fact that the mother had his sperm frozen
2. State Court determines that the Social Security Test is that you are eligible for Social Security Benefits if:
a. You were able to take under the state’s intestate distribution list
b. So if you could take from the estate than you could take Social Security Benefits
c. So the question was could these children have taken? They use a three prong balancing test to make this determination:
