Wills, Estate, Trust Outline
Professor Matthews — Hilary 2011
Definitions
· Who is a “decedent?”
o is the individual that has passed away and either leaves a will or dies without one
· What is a “will?”
o is a testamentary instrument that
§ appoints a personal representative, nominates a guardian
§ revokes or revises another will
§ or expressly excludes or limits the right of an individual or class to succeed to the decedent's property that is passing by instate succession
o What is a “codicil?”
§ is an addition to the will or a revision to the will that must meet all the requirement of a will
· Who is a “testator (testatrix)?”
o an individual that died with a will
· What does “testate” (testacy) mean?
o an individual that died without a will
· What does “intestacy” (intestate succession) mean?
o the passage at death of the property of a person who died without a valid will
§ What is “partial intestacy”? When would this occur?
· is when the decedent left a valid will that serves to pass only part of the estate, the part that does not pass under the will passes by intestacy just as if there had been no will as to that part [usually happens if one of the devises or gift was invalid or the terms did not cover all of the testator's property]
· How can intestacy or partial intestacy be avoided?
· What is a “devise”? Bequest? Legacy?
o can mean either: a testamentary disposition of real or personal property or to dispose of real or personal property by will
· Who is a “devisee”?
o a person designated in a will to receive a devise
· Who is an “heir”?
o a person , including surviving spouse or state, that is entitled under instate succession to decedent's property
· May a will contain a provision expressly disinheriting an heir (i.e., a negative will)? yes
o Why would anyone need a negative will in the first place? in case the testator does not believe that the heir or devisee is suitable to inherit
· What does “probate” mean?
· Who is a “personal representative?”
o an executor, administrator, successor personal representative, and special personal rep.
o any other person who performs substantially the same function under the law that governs that person's status
· What is an “estate?”
o the property of the decedent can be real or personal or it can be an interest in real or personal property
§ What is a “probate estate”?
· What is a “net estate” or “distributable estate?”
· What is “joint tenants with rights of survivorship” (JTWROS)?
o includes co-owners or ownership of property held under circumstances that entitle 1 or more to the whole of the property on the death of the other or others
· What is a tenancy by the entirety?
· Who are one’s “descendants” (“issue”)?
o consist of one's children, grandchildren, adopted and illegitimate child
o never includes relations by marriage
· Who is a “child”?
o an individual entitled to take as a child by intestate succession from the parent whose relationship is involved
§ child does not include an individual who is only a stepchild, foster child, or a grandchild or more remote descendant
o Under what circumstances is an adopted child a “child” within the meaning of EPIC? See EPIC § 2114(2).
§ and adopted individual is a child of his or her adoptive parent and not of their natural parent, BUT adoption of a child by the spouse of either the natural parent has no effect on either the relationship between the child and the natural parent or the right of the child or descendant of the child to inherit from or through the other natural parent
§ generally treated that same as a child born to the adoptive parent
§ the adopted child can inherit from biological kindred but kindred are not permitted to inherit from the child
o Is an illegitimate child a “child” under EPIC? YES
§ a child born out of wedlock or conceive during marriage but is not the issue of the marriage
§ generally has the same rights for succession as a child legitimately
o Is a stepchild a “child” under EPIC? NO
§ a child from a previous marriage of one of the individuals
§ there is no blood relationship between the individuals involve
· Who is a “parent” under EPIC?
o includes to an individual entitled to take or who would be entitled take by intestate succession from a child who dies without a will and whose relationship is in question
§ does not include an individual who is only a stepparent, foster parent, or grandparent
o For purposes of intestacy, is there a difference between collateral relatives of whole blood vs. half blood?
§ a person's blood relations other than ancestors or issues
· include brother, sister, uncle, aunts, cousins, niece, nephew
§ a half-blood is a person who is related to another through only on common ancestor
· are the results of second marriages, issues outside of marriage and similar causes of sharing only one parent in common
§ a whole-blood is a person from the same parents
§ generally there is no distinction between half and whole blood relations, both are equally eligible to take by intestate succession
· What is a “surviving descendant?”
o Is it possible for a descendant to outlive the deceased, but nonetheless be considered to predecease the decedent?
§ if excluded from the will yes????
o Can a person who was not born at the time of the decedent’s death be considered a “surviving descendant?”
§ under the gestation rule a child could be conceive before the death but be born after the individual dies and be consider a surviving descendant
Property rights in life and death
· What can you do with property during your lifetime?
o can dispose of it however the person wants
o What can you do with property after your death?
§ can devise the property however they want
o Should property rights before and after death be the same? Why or why not?
§ yes, if it the intent of the individual to dispose of the pro
hering. As the ambulance crew was taking him out of his home, David took off his Rolex watch and handed it to Robert, saying “Robert, take my watch. You can keep it.” Robert said, “O.K.”, and took the watch. David died in the hospital. His valid will left the watch to Bart.
o Who has the superior claim to the watch, Robert or Bart?
Priority of Claims – EPIC 3805
· If the applicable estate property is insufficient to pay all claims and allowances in full, the personal representative shall make payment in the following order of priority:
o Costs and expenses of administration.
o Reasonable funeral and burial expenses.
o Homestead allowance
o Family allowance
o Exempt property
o Debts and taxes with priority under federal law.
o Reasonable and necessary medical and hospital expenses of the decedent's last illness, including a compensation of persons attending the decedent.
o Debts and taxes with priority under other laws of this state.
o All other claims.
· A preference shall not be given in the payment of a claim over another claim of the same class, and a claim due and payable is not entitled to a preference over a claim not due.
· If there are insufficient assets to pay all claims in full or to satisfy homestead allowance, family allowance, and exempt property, the personal representative shall certify the amount and nature of the deficiency to the trustee of a trust described in section 7501(1) for payment by the trustee in accordance with section 7502. If the personal representative is aware of other nonprobate transfers that may be liable for claims and allowances, then, unless the will provides otherwise, the personal representative shall proceed to collect the deficiency in a manner reasonable under the circumstances so that each nonprobate transfer, including those made under a trust described in section 7501(1), bears a proportionate share or equitable share of the total burden.
· Problem
· David died, survived by his mother Grace, and his nephew, Paul. David's estate totaled $380,000. His funeral costs totaled $12,000; expenses of last illness totaled $55,000; and administration costs of his estate totaled $13,000. (Note: The “Homestead Allowance”, the “Exempt Property” and the “Family Allowance” do not apply here because there is no surviving spouse and there are no surviving children.)
o What is the amount of David’s distributable estate?
