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Wills, Trusts, and Estates
WMU-Cooley Law School
Matthews, Daniel W.

Wills, Trusts and Estates

Matthews

Trinity 2017

I.Week 1

A.Terminology

1.Who is a “decedent?”: is the individual that has passed away and either leaves a will or dies without one

2.What is a “will?” 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

3.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

4.Who is a “testator (testatrix)?”: an individual that died with a will

5.What does “testate” (testacy) mean? an individual that died without a will

6.What does “intestacy” (intestate succession) mean? the passage at death of the property of a person who died without a valid will

7.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]

8.What is a “devise”? Bequest? Legacy? can mean either: a testamentary disposition of real or personal property or to dispose of real or personal property by will

9.Who is a “devisee”? a person designated in a will to receive a devise

10.Who is an “heir”? a person, including surviving spouse or state, that is entitled under instate succession to decedent’s property

11.What does “probate” mean? proving of a will OR procedure that administers an estate (testate or intestate) probate proceeding in the court; creditors go first

12.Who is a “personal representative?” an executor, administrator, successor personal representative, and special personal rep. OR any other person who performs substantially the same function under the law that governs that person’s status

13.What is an “estate?” assets that have to pass through probate. Title through probate.

14.What is a “probate estate”? assets that have to pass through probate. Title through probate.

15.What is a “net estate” or “distributable estate?” Whatever is left over after creditors have been paid

16.What is “joint tenants with rights of survivorship” (JTWROS)? 2 or more people who have ownership of the property jointly through their lifetime. Once A dies, B can take the property in fee simple absolute (will substitute)

17.How does a tenancy in common differ from JTWROS? Tenancy in common: no survivorship; will have to go through probate. Uneven interests (60/40) do not have to be equal

18.What is a tenancy by the entirety? joint tenants with rights of survivorship ONLY BETWEEN SPOUSES

B.Property Rights in Life and Death

1.What can you do with property during your lifetime? can dispose of it however the person wants

2.What can you do with property after your death? can devise the property however they want

3.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 property however they feel like it in a legal manner the law should not interfere with such an intention. Generally, a decedent’s intent is given great deference, subject to certain legal and public policy constraints.

C.What goes into the Estate?

1.Probate Estate (pass by will or intestacy): Assets owned solely by decedent with no beneficiary designation or as tenant in common.

2.Nonprobate Estate (does not need pass via probate)

a)Will Substitutes (practical effect of a will)

i.Revocable inter vivos (living) trust

ii.By contract/beneficiary designation

1.Life insurance*- simply a contract, once decedent dies the company pays the designated beneficiary

2.Retirement account, pension, IRA*

3.Pay on death (P.O.D.)/Transfer on death (T.O.D.)*

iii.Joint ownership

1.JTWROS (assuming joint owner survives decedent)

2.Tenants by entirety (assuming spouse survives decedent)

Problems with joint ownership:

Creditors
Family
People don’t always die in order

Assets that are not part of the Estate

Gifts made inter vivos (made during lifetime)
Irrevocable living trust (treated like a gift)

D.Fla. Stat. § 655.82 (POD)

1.(2) A beneficiary in an account having a pay-on-death designation has no right to sums on deposit during the lifetime of any party.

2.(3) In an account with a pay-on-death designation:

a)On the death of one of two or more parties, sums on deposit in the account belong to the surviving party or parties.

b)On the death of the sole party or the last survivor of two or more parties, sums on deposit belong to the surviving beneficiary or beneficiaries. If two or more beneficiaries survive, sums on deposit belong to them in equal and undivided shares, and . . . there is no right of survivorship in the event of death of a beneficiary thereafter. If no beneficiary survives, sums on deposit belong to the estate of the last surviving party.

3.Problem 1.1 POD

a)Mary Martin opens a savings account at SunTrust Bank. When she opened the account, a bank teller asked Mary if she wanted to name a beneficiary. Mary said, “Yes, I’d like to name my son, Steve Martin, as beneficiary.” The bank teller then titled Mary’s saving account as follows: Mary Martin POD Steve Martin.

i.While Mary is alive, may Steve withdraw money from the savings account? No

E.Fla. Stat. § 222.13 (life insurance)

1.(1) Whenever any person residing in the state shall die leaving insurance on his or her life, the said insurance shall inure exclusively to the benefit of the person for whose use and benefit such insurance is designated in the policy, and the proceeds thereof shall be exempt from the claims of creditors of the insured unless the insurance policy or a valid assignment thereof provides otherwise.

a)Life insurance policy. Insured dies à the beneficiary of that policy take those proceeds by agreement (not going through probate) and is exempt from claims of creditors of the insured.

F.Fla. Stat. § 689.15 (survivorship)

1.The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon dissolution of marriage, shall become tenants in common.

a)Presumed to be tenants in common.

b)Survivorship applies to married couples

c)Unmarried couples à not presumed to be w/o survivorship

2.Problem 1.3 Joint Ownership

a)In 2000, Marcela Cruz deeded Florida real property to her son, Salvador Cruz, and her daughter, Danica Cruz. The deed states as follows: This warranty deed made this 15th day of August, 2000, by Marcela Cruz (the “Grantor”), an unmarried woman, to Salvador Cruz and Danica Cruz (the “Grantees”). In 2015, Salvador dies survived by Danica.

i.Upon Salvador’s death, who owns the Florida real property? Marcela

ii.What if, instead, Salvador and Danica were

is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.

iv.(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:

1.(a) To the grandfather and grandmother equally, or to the survivor of them.

2.(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

3.(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

v.(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

M.Florida Adoption

1.§ 732.108 — (1) For the purpose of intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent’s family or any prior adoptive parent’s family, except that:

a)(a) Adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and the natural parent or the natural parent’s family.

b)(b) Adoption of a child by a natural parent’s spouse who married the natural parent after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent.

c)(c) Adoption of a child by a close relative, as defined in s. 63.172(2) [sibling, grandparent, aunt, uncle], has no effect on the relationship between the child and the families of the deceased natural parents.

II.Week 2

A.Per Stirpes/By Representation

1.The right of a person to take the share of an estate that a predeceased ancestor would have taken (to “represent” the ancestor).

2.What if one of your children predeceased you leaving two living children (i.e., your grandchildren). How would you typically want to the estate divided? Would you want the share that would have gone to your child go to your grandchildren instead?

a)Fla. Stat. 732.104

b)Inheritance per stirpes. Descent shall be per stirpes, whether to descendants or to collateral heirs.

B.Multi-Generation Succession

1.Step 1: Identify the decedent’s children (do not forget about adopted and after-born).

2.Step 2: Determine if any predeceased child left a descendant who survived the decedent.

3.Step 3: Ascertain state’s method of handling multi-generation succession (i.e., what does “representation” mean in your jurisdiction)?

a)Per stirpes (Florida)

b)Per capita at each generation (UPC)