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Wills, Trusts, and Estates
WMU-Cooley Law School
Franks, Judith A.

©       Wills, Trust, and Estates is a state based topic and every state his it own probate code.
©       Assets are owned by someone who has died; when someone dies there is property that has to be distributed.
©       Property rights include the right to decide who succeeds in ownership
(1)     Inter-Vivos:During a lifetime
(2)     Testamentary:After death
General Rules for Gifts
©       The General Rule is that Inter-Vivos Gifts (during a lifetime) can NOT be revoked
©       The Exception to this GR is Gift Causa Mortis
Gift Causa Mortis
©       Gift made in contemplation of death. The D/or makes the gift when facing imminent impending death.
©       D/or of the gift has to die of what he believes is about to kill him.
3 Requirements for a Gift Causa Mortis
(1)     Donative Intent
(2)     Delivery – Constructive or Actual
(3)     Acceptance – is Presumed
*   Majority Jurisdictions: If the D/or does NOT die of the impeding cause the gift is Automatically Revoked w/out any action by the D/or and it’s deemed to be owned by the D/or at the time of death.
*   Minority Jurisdictions: the gift is NOT automatically revoked it is Revocable and the D/or has to take steps to get the gift back/revoke.
Re Van Wormer: Clyde died – b/4 his death he divorced his wife and was suicidal. During this time he gave his brother Paul stocks b/4 he moved to CA to be w/ his mother. However, Clyde had a will for his ex-wife and 2 kids. Issue in the case dealt w/ timing.
Honoring Decedents Intent
©       Courts want to honor the decedent’s intent (person who dies). However, honoring the intent of the decedent is not w/out limits. There are limits on how far the court will go and how far the will is allowed to control.
Eyerman: Mrs. Johnson wanted her house to be demolished. The case is in Ct b/c the community didn’t want the house to be destroyed – neighbors were seeking an injunction. W/out the house the area would look like a swore tooth (aesthetic appearance), safety of neighborhood, and decreased property values – which are all not legal reasons. However, this case deals w/ PP rational.
Court: The Ct held that the term “Public Policy” can NOT be comprehensively defined. But phrases “Against Public Policy” have been characterized as that which contravenes any established interest in society.
Recap: The Cts want to honor the decedent’s intent but NOT if it goes against public policy.
4 General Principals
(1)     The Court will Honor the Decedents Intent but w/in Limits.
*   The decedents intent will NOT be honored if it goes against PP
*   The decedents intent will NOT be honored if it violates the law both civil and criminal
(2)     The Court can NOT determine the decedents Intent b/c they are Dead (the expert on intent is the decedent who is no longer available).
(3)     The Court has to look for Reliable Evidence to show Intent.
*   A will is the most reliable e

pt is that dead people don’t own property and the property needs to be owned.
Step 1: Property Owner
Step 2: Moment Property Owner Dies
(1)     Probate Estate: Assets that are distributed though out the probate process
·   Property that goes into the estate. These belongings are solely owned by the decedent and have to go through the probate process. Ex: clothes, jewelry, books, a car.  
¨Tenants in Common: Has NO SURVIVORSHIP RIGHTS. Also the ownership interest does not have to be equal.
¨If the decedent owns property as T/C the share of the decedent’s property goes into the estate, and is inheritable. à “Inheritable Interest.”
(2)     Non-Probate Estate (outside of the estate): Property passes outside of the estate
·   Joint Tenancy: Where 2 people share individual ownership of property during their lifetime and when one dies the survivor becomes the sole owner “Right of Survivor Ship.”
·   Tenancy by Entierties: Owned by H & W right of survivorship passes to the surviving spouse.
·   Insurance Etc: Contractual agreement wherein the beneficiary receives a payment upon the death of the owner (owner, insured, beneficiary).
¨These are considered Common Forms of Will Substitutes