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Wills, Trusts, and Estates
WMU-Cooley Law School
Horvath, Emily S.

WILLS, ESTATES, & TRUSTS

I. Basic Terms
a. Intestate: Person who has dies w/o a valid will.

b. Testate: Dying w/ a valid will

c. Heir: A person who, under the laws of intestacy is entitled to receive an intestate decedent’s property

d. Devise: When used as a noun, a testamentary disposition of personal property.

e. Devisee: A person designated in a will to receive a devise.

f. Decedent: Dead guy

g. Descendent: Dead guy’s children, grand-children, great-children

h. Testator: Person making the will

i. Will: An instrument or declaration by which one directs the disposition of one’s property after death.

j. Codicil: Amendment to an existing will.

k. Estate:
i. Gross Estate: Value of asset at time of death

ii. Net Distributable Estate: Value of asset after payment of death. Make payment to the beneficiaries from this.

l. Adopted Child: Becomes the lawful child of the adoptive parents and is no longer considered the child of his/her natural parents. Child may still inherit from their birth parents, but if the child dies first, the birth parents can not inherit from said child.
i. When is a person considered to be adopted?
1. When a court of competent jurisdiction enters an interlocutory decree of adoption that isn’t vacated or reversed

ii. How is kinship terminated between a parent and child for the purposes of intestate succession?
1. Permanent termination of parental rights by an order of a court of competent jurisdiction;

2. By release for adoption purposes given by the parent, but not a guardian, to the family independency agency or a licensed child placement agency, or before a probate juvenile court;

3. Other process recognized by the law governing the parent-child status at the time of termination by death or emancipation.

m. Affinity: Relationship by marriage (in-laws)

n. Ancestors: A person’s parents, grandparents, and so forth up through prior generations. This does not include those related through marriage.

o. Attestation Clause: A clause at the conclusion of a will that recites the due execution of the instrument.

p. Child:
i. Who is a child?
1. Child born in wedlock is presumed to be the child of the husband

2. Child adopted becomes the child of the adoptive parents (this includes step-children adopted by the step-parent)

ii. Who is NOT a child?
1. Step-child (unless adopted by the step-parent)

2. Foster child

3. Grandchildren (even if the parent is raising said child)

q. Collateral Relatives: A person’s blood relations other than ancestors or issue. Most often, brothers and sisters, but often uncles, aunts, and cousins. These are further defined as first-line collaterals (i.e. siblings, nephews, nieces), second-line collaterals (uncles, aunts, etc.) and so forth.

r. Consanguinity: Relationship by blood

s. Degree of Kinship: The closeness of the relationship to one’s (usually blood) relatives, who are referred to as one’s kin or kindred.
i. Normally, first comes the spouse and issue of the decedent,

ii. Next, comes immediate ancestors and first or second line collaterals, according to a parenthetic principal that favors the closest ancestor or their issue.

iii. The last step (sometimes not used) is being escheat to the state, but others consider next of kin if no close parenthetic relatives survive.

iv. If considered the same degree of kindred, the estate is given to the one with the nearest common ancestor.

t. Half-Blood: A person who is related to another through only one common ancestor. (same mother, different fathers.)
i. Some modern statutes utilize ancestral property which means property that came to the intestate by gift or devise from an ancestor, and if followed, the property may only descend to those who are of the blood of the ancestor from whom it derived.

u. Heir Apparent: One who will certainly inherit when and if another died intestate (supposing they survive them) is called an heir apparent.

v. Heir Presumptive: A person who would inherit from another if the latter died intestate at that moment is called a presumptive heir. This is only presumptive because it can be lost if someone with a closer relationship or superior claim comes into the picture through birth, marriage, or the like.

w. Holographic Will: A will (sometimes called a holographic will) wholly or in substantial part handwritten by the testator.

x. Illegitimate Child: Traditionally these children were given no inheritance rights. In cases where a will or trust is in question, the court will have to determine whether there was intent to include non-marital children in gifts to children, issue, or the like.

y. Issue: A person’s descendants, consisting of one’s children, grandchildren, and so forth down through later generations. These never include relation by marriage, although it may include adopted and illegitimate descendants.

z. Lawful Issue: Only those issue born in wedlock

aa. Moiety: When the estate is divided into equal parts.

bb. Parent:
i. Who is a parent?
1. Biological mother and father

2. Adoptive mother and father
ii. Who is NOT a parent?
1. Step parent (unless they adopt the child)

2. Foster parent

3. Grandparent

cc. Nonresident decedent: A decedent who was domiciled in another jurisdiction at the time of his or her death.

n good.

b. Policy Issues
i. Courts will attempt to honor the wishes of the decedent;

ii. However, the expert on decedent’s intent (decedent) is dead and unavailable to inform the court;

iii. Therefore, the court will use reliable evidence to determine intent (the most reliable evidence is a validly executed will);

iv. W/o any evidence, the court will make presumptions. (the court will look to the statutes)

IV. Outlook of Distribution
a. First: Automatic Transfers of Title
i. Gifts Causa Mortis
1. Elements
a. Made in contemplation in death (person giving gift must reasonably believe that he or she is about to die)

b. Donative intent (person giving gift must have the intent to give it to the person)

c. Effective delivery (person can expressly or constructively give the gift)

d. Acceptance (presumed)

e. The gift is revocable until the death of the donorand

f. Is automatically revoked upon the giver’s recovery from which he was afraid he would die (i.e., believing you are dying of a heart attack – you give your daughter your diamond ring. But you don’t die. – the gift is automatically revoked, she doesn’t get the ring).

2. In Re Van Wormer’s Estate
a. Made in contemplation in death: Van Wormer was suffering from depression so he gave his brother stock stating that he would die in the near future. He leaves for FL and ends up committing suicide.

b. Donative Intent and Effective Delivery: He gave his brother the stock

c. Acceptance: Brother took stock

d. Wife argues that this was a gift causa mortis and since he didn’t die when he gave his brother the stock, then it was revoked. However, the Ct said that his depression was the cause of his committing suicide so this is a valid gift causa mortis.

3. Problem 1: David suffered a heart attack at a family gathering. As the ambulance crew was taking him out of his home, David took off his Rolex and handed it to Robert, saying “Robert, take my watch. You can keep it.” Robert said, “O.K.”, and took the watch. David survived the heart attach, but died 2 years later in an automobile accident. His valid will left the watch to Bart.