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Wills and Estates
WMU-Cooley Law School
Foster, Dustin S.

Wills and Estates Review Outline

Dustin Foster Fall 2010

Review – Week 1

§State the four principles which underlie issues relating to estate distribution – the 4 principals of Probate Law

Principal 1: The Court will abide by wishes of decedent to distribute his/her property on his/her death, so long as not illegal or against public policy.

Principal 2: The best evidence of a decedent’s wishes would be the testimony of the decedent. However, that best evidence is not available.

Principal 3: The next best evidence of the wishes of the decedent is a valid will. If there is a valid will then courts hesitate to substitute a different scheme of distribution

Principal 4: Without a valid will or where the valid will is ambiguous, the court and the law will create presumptions about what the testator would want and avoid taking testimony of self serving heirs.

§Vocabulary/Basic Terms

§Priority of claims – EPIC 3805

§Partial Intestacy

§Categorizing Assets (Probate v. Non-Probate/Will Substitutes)

§Survivorship – EPIC 2104

–Default Rule

–Must survive the decedent by 120 hours to be considered surviving, otherwise considered to have predeceased decedent

–A governing instrument (i.e. Will) can change the default survival provision – can increase or decrease the time period

§After born Heirs – EPIC 2108

–Must be in gestation at time of decedent’s death

–Must survive 120 hours after birth to be consid

med invalid in Michigan

–Best defined by who is not a surviving spouse – EPIC 2801(1)&(2): A surviving spouse does not include any of the following:

§An individual who is divorced from the decedent or whose marriage to the decedent has been annulled

§An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife.

§An individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual.

§An individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.

§An individual who, at the time of the decedent’s death, is living in a bigamous relationship with another individual.

§An individual who did any of the following for 1 year or more before the death of the deceased person:

–Was willfully absent from the decedent spouse.

– Deserted the decedent spouse.

–Willfully neglected or refused to provide support for the decedent spouse if required to do so by law.

§Who takes under intestacy