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Wills and Estates
WMU-Cooley Law School
Marineau, Paul K.

Wills Trusts Estates
Decedent: Person who has died
Intestate: of or relating to a person who has died without a valid will
IntestateSuccession: the passage at death of the property of a person who has died without a valid will
Descent and Distribution: intestate succession of real property (descent) and personal property (distribution)
Partial Intestacy: intestacy as to only part of a persons’ estate
Testator: one who makes a will
Will: instrument or declaration by which you direct the disposition of your property after death
Codicil: amendment to an existing will
Devise: a testamentary disposition of real or personal property
Devisee: a person designated in a will to receive a devise
Relationship to the Decedent:
Heir: a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property     –    Also called “Next of Kin”
§Living people do not have heirs
Heir Apparent: one who expects to inherit if they outlive the other person
Presumptive Heir: one who would, right now-at this moment, inherit if the person died, but will loose this right if someone closer comes into the picture (i.e. intestate has a child and then dies)
Posthumous Heir: child conceived before, but born after the death of a parent
§mostly considered to have been born to the parent as of the date of conception
Issue: A person’s descendents – lineal – vertical
§Children, Grandchildren
Child: an individual entitled to take as a child under this act by intestate succession from the
parent whose relationship is involved
§not a stepchild, foster child, or grandchild (or more remote)
Minor: child less than 18 years old
Ancestors: Lineal Ascendants: parents, grandparents
§you are always the issue of your ancestors, and you are the ancestor of your issue
Parent: individual entitled to take as a parent under this act by intestate succession from a child
who dies without a will and whose relationship is in question
§not stepparents, foster parents, grandparents
Collaterals: horizontal
§brothers, sisters, aunts, uncles, cousins
♦First Line Collaterals: siblings, nephews, nieces
♦Second Line Collateral: aunts and uncles
Consanguinuity: relationship by blood
Affinity: relationship by marriage- but not your spouse
§brother in law, parents in-law
♦Secondary Affinity: daughter or son in law
Half-Blood: a person who is related to another through only one common ancestor
§half brother or sister- only sharing one parent in common
Step-Relatives: no blood relationship
Adopted children: requires fulfillment of statutory requirements – treated as a regular child of his adopted parent, with exception for when adoptive parent is a step-parent – see 2114(2)
Intestacy Schemes of Distribution
Per Stirpes: Descendents of a deceased taker of a share of an estate receive their ancestors share.
§divides property at the level of the original takers children- even if no children survive, allocating a share to each surviving child (if any) and each pre-deceased child who leaves a living descendants
Per Capita at Each Generation (EPIC): scheme of representation whereby all takers of an estate in a generation are treated equally, regardless of from whom they are descended or how many siblings they have
Donative Powers
Eyerman v. Merchantile Trust
§Deceased had a will that directed her house to be torn down and the land to be sold
§Plaintiffs are neighbors who want to keep the house- it is an upscale/historic neighborhood
Holding: there is no constitutionally protected right to have or make a will- or to have it enforced
– this would be against public policy to enforce the will and tear down the house
1)       taking of property by inheritance or will is not an absolute or natural right
2)      acts are against public policy when the law refuses to enforce or recognize them on the ground that they have a mischievous tendency so as to be injurious to the interests of the state- apart from illegality
KEY: the courts want to give effect to decedent’s intent, but this is limited by law and public policy
Gift Causa Mortis
▩    A gift made in contemplation of death
§Revocable until the death of the donor, and is automatically revoked upon recovery
♦ Requirements:
•Donative Intent
•Effective Delivery (Including Constructive Delivery)
•Made in Contemplation of Death [need not be immanent] •Acceptance (presumed)
Van Wormer
§Van Wormer, depressed, left for California- and there, committed suicide
•Before he left he gave $$ to his brother and his mother
§The wife of Van Wormer is arguing that it was not a valid Gift Causa Mortis
Issue: was the gift made in contemplation of death?
Holding: YES
Reasoning: GCM is valid if at the time of the transaction, the donor believed he was suffering from an affliction from which he might not recover, and from which in fact he did not recover
What goes Into the Estate
Probate Assets: those assets held in the decedents name alone- that require the decedents signature to transfer
Non-Probate Assets: automatically passes outside of the probate process- does not go into the estate
Non- Probate Transfers: transfers other than by will or intestacy
•Life insurance policies, 401K plans, property owned as tenant by entirety with right of survivorship, joint tenancy with right of survivorship, anything in a trust
•KEY: any tenancy with right of survivorship passes outside of probate
Gross Probate Estate: The sum of all assets in a probate estate
Will Substitutes
§A term for any instrument or means of transfer that has the practical effect of taking the place of a will
§These are non-probate assets- pass outside of probate process
§Examples of Will Substitutes
•Life Insurance: contractual agreement where the beneficiary receives payment from insurer upon the death of the insured
•Joint Tenancies: property passes to surviving joint owners
•Tenancy by the Entireties

he excluded person is treated as if they disclaimed their intestate share
KEY: a residuary or residual clause disposes of the remainder of the estate so that nothing passes through intestacy
§EX: The remainder of my estate I leave to Bob.
EPIC Definitions:
Illegitimate Child: treated as a legitimate child – also see 2114(1)(b)
Step Child: not a child unless adopted
Whole v. Half Blood: treated the same for our intents and purposes
Surviving Descendent: a descendant who neither predeceased the decedent nor is considered to have predeceased the descendent
Pre-Deceased: an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent – see 2104 (exception: “if application would result in escheating to the state”)
EPIC 2702: must establish by clear and convincing evidence that an individual survived an event, including the death of another individual, by 120 hours
§otherwise they are considered to have pre-deceased the decedent
•Key: if predeceased, the share passes down according to intestate distribution or the decedents will- if not pre-deceased it is passed down according to devisees will/intestate scheme
After-Born: individual conceived while the decedent is still alive, but not yet born when decedent dies, is treated as a living individual if they can survive 120 hours after being born
§EX: father passes away, mother then gives birth and child lives more than 120 hours- child takes a share
§Also applies to grandchildren, etc.
Succession: share of heirs other than the surviving spouse
EPIC 2103
1)      Any part of the estate that doesn’t go to the decedents surviving spouse- or the entire estate if there is no surviving spouse- passes in the following way…
a.       (spouse) – defined by state law, not EPIC
b.      Decedents descendents by representation; if none….
c.       Decedents parents equally- or all to the surviving parent; if none…
d.      Descendents of the decedents parents- or either of them by representation
i.         Ex: decedents siblings- if not, nieces and nephews by representation; if none
e.       If there are grandparents, and descendents of grandparents (see slide seven week 2)
i.         ½ to decedents paternal grandparents
1.      descendents of paternal by representation
ii.        ½ to maternal grandparents
1.      descendents of maternal by representation