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Wills, Trusts, and Estates
WMU-Cooley Law School
Torielli, Gina M.

Outline
Friday, November 07, 2008
10:56 AM

1. State the four principles which underlie issues relating to estate distribution;
o The courts like to give deference to the decedent’s intent
· Exception
§ Public Policy(PP)→ that which contravenes with the morals of the time
§ Eyerman Case(decedent’s will says that her home is to be torn down and the land to be sold)
· Court held that this will provision was invalid as against PP. Have to balance the rights of the decedent against the rights of the public. Here tearing down the home affects all of the surrounding property owner’s land value. The court saw the decedent’s will provision as wasteful; there was no benefit to come from the demolition of the home. *Important note→ decedent and her attorney should have stated her intent in the provision and maybe the outcome would have come out in her favor.
o b/c the expert(decedent) is dead, the court is often skeptical about having others testify about decedent’s intent
o the most reliable evidence is validly executed estate planning docs
o Where the will is ambiguous, courts will often make presumptions about the decedent’s intent
2. Describe the differences, if any between a person’s ability to control disposition and use of property intent in life and after death;
o In death, you are limited in what you can do with your property.
o Remember, if deceased has not designated a beneficiary, the state will take control and distribute thru intestacy
o Why do we have the limitations? We don’t like waste and personal self interests don’t really exist any longer
3. Define the vocabulary words discussed in class
o Probate(EPIC 1107(k))- the process of proving a will or having it declared valid and effective following the death of the testator
o Estate(EPIC 1104(b))- the total property of a decedent that passes by will or intestate succession, or the nature and extent of an interest in real or personal property.
o Net Estate-(Torielli doesn’t like this)
· Distributable estate-what’s left after any bills or priority claim are paid(gross estate – priority payments)
o Testate- person has died leaving a will
o Testator(EPIC 1107(l))- person who has executed a will and has died leaving a will
o Intestate(EPIC 2101(l))-die without a valid will
o Decedent- a person who has died intestate
o Will(EPIC 1108(b))- document that attempts to distribute an estate
o Devise(EPIC 1103(m))- a gift given under a will
o Devisee(EPIC 1103(n))- a beneficiary named in a will
o Personal Representative(EPIC 1106(n))- the executor of a will who handles to the estate distribution
o Heir(EPIC 1104(m))- person entitled to take under the laws of intestacy
· Heir Apparent-one who will certainly inherit if and when another dies intestate and needs only to survive the decedent
· Presumptive Heir-
o Descendant(EPIC 1103(m))-
o Ancestor
4. Given a list of property owned by a decedent at the time of his death, identify which of a decedent’s assets will pass into his estate and which will be non-probate assets, and determine the value of the decedent’s estate;
o Everything that decedent owns goes into the estate
o some of this property will go into the probate estate and some will go to a named person(insurance and other will substitutes)
o Problem:
· Darlene and Harry Jones were married for 52 years. They had one child, son Sam Jones. When Darlene died, she owned the following:
a. A home, in which she and her husband, Harry, resided. The deed which conveyed the house stated “to Darlene Jones and Harry Jones, as tenants by the entireties.” The house, which was fully paid for, was valued at $240,000;
Special relationship among spouses, probably will not end up in probate estate, this is like a will substitute, it’s going to her husband
b. A cottage. The deed which conveyed the cottage stated, “To Darlene Jones and Sam Jones, as joint tenants with rights of survivorship.” The cottage, which was fully paid for, was valued at $125,000.
Not in probate estate, her son owns the property now
c. A family farm, valued at $300,000. The deed which conveyed the farm stated, “To Darlene Jones, Elaine Smith and Sharon Brown as equal tenants in common.” Elaine and Sharon were Darlene’s sisters. The farm was fully paid for.
There is no right of survivorship; 1/3 ends up in the estate(100k)
d. A savings account in Darlene’s name, totaling $10,000; in her estate (10k)
e. A

iving spouse and minor children, if any
· Exempt Property
· Debts and Taxes with priority under federal law
· Reasonable and necessary medical and hospital expenses of the decedent’s last illness, including a compensation for the persons attending the decedent
· Debts and taxes under the state
· All other claims
§ Creditors such as credit card bills
*Everything remaining after the above have been disbursed equals the distributable estate
7. Given a set of facts relating to whether or not the decedent has a will, determine the portion of the decedent’s estate, if any, which will pass through intestacy;
o EPIC 2101—statute determines what each person gets
· Any part of the decedent’s estate not effectively disposed of by a will passes intestate succession to the decedent’s heirs, unless modified under the decedent’s will.
8. State the survival requirement for a person to inherit under intestacy, including the requirements for an unborn heir;
o EPIC 2104- an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent
o EPIC 2108- an individual in gestation at a particular time is treated as living at the time if the individual lives 120 hours or more after birth
9. Identify the situations in which a spouse does not qualify as “surviving spouse” of a decedent;
*Remember that presumption that you don’t want your ex to get anything unless otherwise provided
o EPIC 2801
· A divorce or an annulment breaks spouse status–no longer a surviving spouse
· A surviving spouse does not include any of the following:
§ An individual who obtains or consents to a final decree or judgment of divocrce or an annulment of their marriage, which decree or judgment is not recognized as valid in this state