Wills Outline
Spring 2005
Week 1
SOME COMMONLY USED TERMS
a. Estate- An entity, a basket of property
b. 3805 EPIC Claims- First you pay off creditors
c. Probate process- gather assets, pay off creditors, then distribute according to statute through intestacy or by will through testacy
d. Decedent- the death person
e. Descendents- children
f. Heirs- 1104(m) people who will take your property through intestacy (no will)
g. Devisees inherit through a will and are given a Devise
h. Testator-Person who wrote the will and goes through testacy
i. Wills 1108(b)- includes but is not limited to a codicil and a testamentary instrument that appoints a representataive…
j. Codicil- Changes of a will on a separate piece of paper; a type of will and must meet the requirements to be a valid will.
k. Trust- a legal entity
l. Settlor- a person who makes trust is the settler
m. Res- assets in the trust
n. Trustee- legal title to res
o. Beneficiary- equitable title
WORKING WITH CLIENTS
p. What can you do with your stuff?
i. Sell it
ii. Give it away
iii. Use it
iv. Destroy it
GENERAL PROPERTY LAW AND DONATIVE POWERS
q. In General
i. Eyerman- As a general rule, a testator has the right to impose such conditions as he pleases upon a beneficiary as conditions precedent to the vesting of an estate in him, or to the enjoyment of a trust estate by him as a cestui qui trust. He may not however, impose one that is uncertain, unlawful, or opposed to public policy
r. Limits on Property Rights: Public Policy
i. Legality
ii. Can’t injure others rights when using your own land
THE PROBATE PROCESS
a. Gathering stuff and distributing it.
THE ESTATE AND WHAT GOES INTO THE ESTATE
b. Things you own go into your estate, both real and personal property
WILL SUBSTITUTES (OR, WHAT DOESN’T GO INTO THE ESTATE)
c. General
i. Not subject to probate and also stays out of creditors reach
d. Joint Tenancy Property
i. Equal undivided interest
ii. There is a right of survivorship
iii. Can compel partisan, severs joint tenancy and make it tenancy in common.
e. Tenancy by the Entireties
i. Only for husband and wives
ii. Creditors can only get property if debt was acquired from both husband and wife.
iii. No partisan can be compelled
iv. Michigan recognizes this…
f. Life Insurance
i. Automatically goes to beneficiary
ii. Insured dies, beneficiary is entitled to a certain amount of money
iii. You can always change beneficiary
g. Revocable Trusts
i. Either if revocable or irrevocable stays out of your estate
h. Gifts and Gifts Causa Mortis (not really will substitutes)
i. Donor who thinks he is going to dies, believes death is imminent and the donor actually does die
ii. Majority rule- if you survive; gift is revoked
iii. Minority rule (restatement)-survive it, it is revocable for some reasonable time
iv. Must believe it is emanating from some specific cause
PAYMENT OF PRIORITIES FROM THE ESTATE: EPIC 3805
i. Says that when you are going though probate you must pay in order of priority
1. Costs and expenses of administration
2. Reasonable funeral and burial expenses
3. Homestead allowance
4. Family allowance
5. Exempt property
6. Debts and taxes with priority under funeral law
7. Reasonable and necessary medical and hospital expenses fo the decedents last illness, including a compensation of persons attending the decedent
8. Debts and taxes with priority under other laws of this state
9. All other claims
j. If decedent is also a testator, it will send down that avenue
INTESTACY—IN GENERAL
k. When Does Intestacy Apply?
i. When there is no valid will, then intestacy statutes apply
ii. If you want to avoid partial intestacy- you should put a residuary clause
l. Statutory Scheme
i. Must survive descendent by 120 hours (5 days)
ii. If you are in gestation- you have to be born and make it 5 days
m. Who are the Descendants?
i. Your child
ii. Adopted children- you can inherit from both your adopted and natural parent; but natural parent can not inherit through child that was adopted
iii. Spouses are not decedents
iv.
n. How do you survive the Decedent?
i. Must survive decedent by 120 hours (5 days)
WHO GETS THE INTESTATE ESTATE?
o. The Surviving Spouse
i. If There are No Descendants of the Decedent
1. Escheats to state; however if there is someone that has not met the 120 hour requirement but would be a descendent; then they will get the intestate estate.
ii. If There are Descendants
1. Surviving spouse
2. Children and descendents
3. Parents
4. Descendents of parents
5. Grandparents
6. Descendents of grandparents
7. Escheats to state
p. Where the Rest Goes—In General
i. How Do We Give Priorities to Other Relatives?
ii. EPIC 2103 and 2105
q. What is “By Representation”?
i. Types of Representation Systems
1. “Stocks” and Generations
2. Per Stirpes
3. Per Capita With Per Capita Representation
4. Per Capita at Each Generation (Michigan)
a. General Analysis
i. Determine the root generation
ii. Determine how many people to divide it among
iii. Do we recombine?
r. Michigan’s Approach
i. Per capita at Each Generation
LIMITATIONS ON THE INTESTATE SHARE
s. Disclaimer
i. Common Law Rules
1. Went to you regardless through intestacy
ii. EPIC Allows Disclaimer
1. Definitions
a. Treat you as if you predeceased the decedent
2. Key Part: EPIC 2902(1)
a. You can disclaim it in part or in whole
3. Requirements of Form
a. 2903- must file a disclaimer
4. Delivery and Timing
5. Effect of Disclaimer
a. You only disclaim what you were going to get. No recombining
t. Malfeasance (Killing the Decedent)
i. Mahoney- Three approaches
1. Killer get to keep what he would have taken through intensely
2. Killer does not
in 1/3 of real property owned by husband during marriage
b. Decedent Was Testate
i. Three choices
1. Abide by will
2. Give you ½ of what you would get intestacy but take half of other amounts you got because decedent died
3. Widow? You can take a dower interest.
c. Effects of the Elective Share
6. PROTECTION OF AFTER-MARRIED SPOUSES: EPIC 2301
a. What the After-Married Spouse May Elect
i. You will get the full amount of what you would have gotten intestacy
ii. But, instead of starting w/ real net estate we will deduct any amount that was given to the children priorly.
1. Exceptions
a. Does not apply if it appears that he will was made in contemplation of the marriage of the surviving spouse
b. The will expresses the intention that it is to be effective notwithstanding a subsequent marriage
c. The testator provided for transfer outside of the will, and the intent that the transfer be a substitute for a testamentary provision
iii. How to Elect
1. Applies automatically
7. Protection of after-born (OR ADOPTED) children: EPIC 2302
a. Generally it is easy to omit children
b. If No Children When Will Was Executed
i. After born child can get intestate share unless the will devised it all to the other parent
c. If Children When Will Was Executed
i. You can get the adopted or after born children into it
ii. Part of the others share gets abated
d. Exceptions
i. 2302- does not apply if the omission was intentional
ii. The testator provided for child outside the will…and it was intended to be a substitute
PRENUPTIAL AGREEMENTS (WAIVER OF SPOUSAL RIGHTS)
The Rinvelt case
a. Must be fair, equitable, and reasonable under the circumstances, and must entered into voluntary, with fill disclosure, and with the rights of each party and the extent of the waiver of such rights understood.
b. Factors to look at to determine validity of agreement
i. Was the agreement obtained through fraud, duress, or mistake or misrepresentation or nondisclosure of material fact
ii. Was the agreement unconscionable when executed.
iii. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unconscionable
iv. Full disclosure?
1. You need to give the risks you are taking
2. 2205- waiver
EPIC Section 2205 and MCLA 557.28
