Wills Outline
I. Intestacy
A. Intestate Succession
1. dying without a will
2. Courts’ generally like to give deference to the decedent’s intent
a) limitations to this
i. see Eyerman case regarding public policy
b) court will look at reliable evidence
i. most reliable is a will
c) if there is no will or reliable evidence, or if the reliable
evidence is ambiguous, courts and statutes make presumptions
i. if a presumption is created, a burden is placed on the
party the presumption is against to overcome it
ii. a conclusive presumption is irrebuttable
Eyerman Case
-Mercantile Bank was the executor for the estate of Louise
Johnston
-she stated in her will that she wanted her house torn down
-P’s (property owners) wanted to keep the house standing
-This case raises the issue of public policy
-The court discussed the value of the community, historical
value, aesthetic value
-The court raised the issue that people don’t have as much
concern about what happens to their property once they
die
-In this case, it went against public policy to tear down the
house, regardless of what was requested in the will(house
was kept standing
B. Probate
1. how to process property
2. answers the questions of “at the moment of death, where does the
property go?”
3. Probate Assets include:
a) solely owned property
b) decedent’s share of a tenancy in common that can be inherited
by people
c) intestacy and wills only deal with probate assets
4. Non Probate Assets (will substitutes) include:
a) Types of Will Substitutes
i. life insurance policy
ii. brokerage account
iii. title of property to someone else (right of survivorship)
bsolete, the gift takes precedence, and it’s no longer part of the estate
D. Paying Claims
1. EPIC 3805
2. if you don’t have enough money in your Probate Assets to cover all
claims, you must pay in a certain order:
a) costs and expenses of administration
i. personal representative fees, attorney fees, costs of
litigation, court fees
b) reasonable funeral and burial expenses
c) homestead allowance
d) family allowance
e) exempt property ($10,000) f) federal debts/taxes
g) reasonable and necessary medical and hospital expenses
h) state debt and taxes
i) all other claims (phone bill, credit card)
3. after the claims are paid, you’re left with a distributable amount to
figure out who gets what from
