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

Basic Terms
Intestate – Of or relating to a person who has died without a valid will.
Testate – Having left a valid will at death.
Heir – A person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property.
Devise – When used as a noun, a testamentary disposition of real or personal property.
Devisee – A person designated in a will to receive a devise.

Intestate AKA intestacy or rules of intestate sucession
Distributees or next of kin- entitled to another’s(intestates) personal property aka heir
Presumptive heirs- person who would inherit from another if the latter died intestate
Heir apparent- one who will certainly inherit when and if another dies intestate, needing only to survive the intestate
Heir presumptive although presently next in line to inherit,may lose that right if someone with a closer relationship or superior claim comes into the picture by birth, marriage, or the like where the heir apparent has a claim that can only be defeated only by failure to outlive the intestate.

Basic Terms
Decedent – Dead guy.
Descendent – Generally, dead guy’s children, grandchildren, great grandchildren…
Testator – One who makes a will.
Will – An instrument or declaration by which one directs the disposition of one’s property after death. Also called a testament (old days testaments for personal and wills for real). Don’t have to say “Will and Testament”, but many still do.
Codicil – Amendment to an existing will.

Decent- intestate succession of real property
Partial intestacy- intestacy as to only a part of a person’s estate.
Moiety- a part of the estate.
Descendants or lineal descendants- consist of ones children, grandchildren, and so forth down through later generations.
Ancestors- person’s parents, grandparents, and so forth up through prior generations.
Collateral relatives- person’s blood relations other than ancestors or issues. Such as brother, sisters, uncles, aunts, and cousins.
Affinity- relationship by marriage aka in-laws.
Half-blooded- person who is related to another through only one common ancestor. Half brother or half sister.
Adopted child- person who has become for purposes of the law the child of another person by virtue of the adoptive parents fulfillment of the statutory requirements for adoption.
Illegitimate child- a child born out of wedlock aka nonmarital child.
Posthumous heir- a child conceived before but born after the death of the parent. French term- “en ventre sa mere” presumed to have been born to the parent as of the date of conception.
Representation- the right of a person to take the share of an estate that a predeceased ancestor would have taken (to represent the ancestor)

Policy Issues
The courts will attempt to honor the wishes of the decedent.
The decedent is no longer with us, therefore, we may need extrinsic evidence to determine his or her wishes.
Without any evidence, the law will make presumptions.
Gift Causa Mortis
A gift made “in contemplation of death” that is revocable until the death of the donor and is automatically revoked (or remains revocable in some jurisdictions) upon recovery.

Donative intent
Effective delivery (including constructive delivery)
Made in contemplation of death
Acceptance (presumed)
Meaning if the donor survives and recovers then the gift is automatically revoked.
Constructive delivery may be found even if physical delivery was absent. MAY BE FOUND!
Simultaneous death statute- a statute that alters distribution of an estate when the decedent and the beneficiary have died at the same time. The decedent’s estate is distributed as if the decedent(testator, intestate) had survived the beneficiary. A beneficiary is required to survive a decedent by 120 hours(5 days) in order to take under a will, intestacy, or an instrument such as an insurance policy. You also require clear and convincing evidence of survival for the requisite period.
In the case of joint-ownership w/right of survivorship- each co-owner generally is deemed by simulataneous death statutes to have survived as to one-half of the property.

Edward and Patricia Smith were married for 47 years when Edward died. They had two children, Orin Smith and Demona Smith. When Edward died, he owned the following:
A home, in which he and Patricia resided. The deed that conveyed the house stated “to Edward Smith and Patricia Smith, as tenants by the entireties.” The house, which was fully paid for, was valued at $650,000;
A condominium in Petoskey, Michigan. The deed that conveyed the condominium stated, “To Edward Smith, Demona Smith and Orin Smith, as joint tenants with rights of survivorship.” The condominium, which was fully paid for, was valued at $400,000.
A family farm, valued at $600,000. The deed that conveyed the farm stated, “to Edward Smith and Danielle Crane as equal tenants in common.” Danielle was Edward’s cousin. The farm was fully paid for.
A savings account in Edward’s name, totaling $50,000;
A 2005 Lexus RX 330, titled in Edward’s name, valued at $40,000;
A paid up life insurance policy, with a value of $700,000, with Patricia as beneficiary;
An investment portfolio valued at $2,000,000, titled in Edward’s name; and
Personal property valued at $10,000.

Probate Assets
Savings Account $50,000
Lexus $40,000
Investments $2,000,000
½ of Family Farm $300,000
Personal Property $10,000
Total $2,400,000
Non-Probate Transfers
Residence to Patricia as surviving owner by the entireties
Condo in Petoskey to Demona & Orin as surviving joint owners
Life Insurance to Patricia as surviving beneficiary

Will Substitutes
Life Insurance – Contractu

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:

(a) Costs and expenses of administration.
(b) Reasonable funeral and burial expenses.
(c) Homestead allowance (later in course).
(d) Family allowance (later in course).
(e) Exempt property (later in course).

Priority of Claims – EPIC 3805
Priority of claims continued–

(f) Debts and taxes with priority under federal law.
(g) Reasonable and necessary medical and hospital expenses of the decedent’s last illness, including a compensation of persons attending the decedent.
(h) Debts and taxes with priority under other laws of this state.
(i) All other claims.

Priority of Claims – EPIC 3805
(2) 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.
(3) 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.

Intestacy – EPIC 2101
When does intestacy apply?
(1) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this act, except as modified by the decedent’s will.
Negative Will–

(2) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent that passes by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to