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Wills, Trusts, and Estates
WMU-Cooley Law School
Foster, Dustin S.

Intestate Succession:
Spousal Share – EPIC 2102
Surviving Spouse Intestate Share: (this provision prescribes the portion of the distributable estate which goes to the surviving spouse):
a)      The entire intestate estate if no descendent or parent of the decedent survives the decedent.
b)      The first $150k, plus ½ of balance – if all of the decedent’s surviving descendants are also descendants of the surviving spouse and is no other descendant of the surviving spouse who survives the decedent.
c)      First $150k, plus ¾ of balance – if no descendant of the decedent survives the decedent, but a parent does.
d)      Fist $150k, plus ½ of balance, if all of the decedent’s surviving descendants are also descendents of the surviving spouse and the surviving spouse and the surviving spouse has 1 or more surviving descendents who are not descendants of the decedent.
e)      First $150k, plus ½ if none of the decedent’s surviving descendants are not descendants are not descendants of the surviving spouse
f)       The first $100k, plus ½ if none of the decedent’s surviving descendants of surviving spouse.
Where does the Rest go?
Share to Heirs (Other than the surviving spouse) – EPIC 2103
o       Heirs Intestate Share: (this provision prescribes the portion of the distributable estate which goes to heirs other than the surviving spouse)
o       Any part of the intestate estate that doesn’t pass to surviving spouse or no surviving spouse passes in the following order:
1.      The decedent’s descendants by representation (if none, go to #2)
2.      The decedent’s parents equally if both survive. If only 1 survives the decedent then to that 1 (if none, go to #3) 
3.      No descendants or parent – the descendants of the decedent’s parents or of either of them by representation. (i.e. the decedent’s siblings or their nieces or nephews; if none, go to #4)
4.      none of the above – but the decedent is survived by 1 or more grandparents or descendants of grandparents, ½ of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendents of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the ½
How Much?
Taking by Representation –
The right of a representative of a person (that is dead) to take the share of an estate that a predeceased ancestor would have taken.
Types of Representation:
1)      Per Stirpes (traditional system)
2)      Per Capita
3)      Per Capita with Representation (the old UPC)
4)      Per Capita at Each Generation (new UPC/what Mich. Uses/Epic 2106)
Per Capita at Each Generation – EPIC 2106
o       Per Capita at Each Generation: (2106) No matter the estate passes under 2103, the estate is divided using a “per capita at each generation” representation system
o       Per Capita at Each Generation:
1.      Living children get the share they would have received if at least one sibling was still alive (whether another sibling is alive or not); And
2.      The next generation (grandchildren) all get equal shares
§         Hypo – there are 3 siblings in As generation, A is the only sibling living, A would take 1/3 of her father’s intestate estate and then the 2/3 would be divided equally among B and Cs children (grandkids), but A’s children would not be included because A got her share.
Limitations on Intestacy: (Limitations on what can be taken under intestate succession):
There are 4 Limitations on Intestacy:
1)      Disclaimer
2)      Slayer Statute/Malfeasance
3)      Advancements
4)      Assignments of Expectancy
1.      Disclaimer – (Refusal to accept under the will or intestate succession)
o       A person may refuse their share in whole or part in a will or intestate succession.
·         Why Refusal?
a)      To avoid creditors from taking the property
b)      Tax – puts in higher tax bracket
c)      Don’t need the property – another needs more
·         Under Common law – when a person receives property intestate, their rights vest immediately upon the death of the decedent.
o       2901 – 2904 – the governing instrument to disclaimer
·         2901(1) – Disclaimer of property interest law”.
·         2902(1) – Disclaim interest in part or whole – a trustee, with respect to a trust as whole may disclaim in whole or part.
o       2903 – 5 requirements to Disclaimer:
1.      Is in Writing
2.      Declares the Disclaimer
3.      Describes the disclaimed interest
4.      Is signed by the disclaimant
5.      Is delivered as provided in sections 2904, 2905, and 2906.
o       2907 – effect of disclaimer:
·         The court will treat a disclaimed person as if they have predeceased the decedent. Therefore, disclaimer’s children will receive his share by representation – the disclaimed share would skip your creditors and go to the kids in essence.
2.      Slayer Statute/Malfeasance –– EPIC 2803 (killer as heir)
o       There are 3 jurisdictional approaches to whether the killer heir gets inheritance:
1.      Constructive Trust – (majority view) – Killer holds legal title through law of intestate but is order to give property to heirs.
2.      Slayer keeps the money
3.      Equity approach – holds the money in trust for the benefit of others
§         No one should benefit from their crime
o       EPIC 2803 – Michigan Slayer Statute: A person forfeits there intestate share if they:
1.      Intentionally Kill
2.      Without a lawful excuse (self defense etc)
§         Probate Court holds trial to determine whether the above elements were met, Court looks at the evidence by preponderance of the evidence.
§         Accidental killing would not apply under this statute.
·         Treat the killer as if the killer died intestate, as if he predeceased the victim – its treated the same as a disclaimer
§         Because treated like disclaimer the killer’s children would still take their intestate share.
·         Policy (for the slayer rule) – prevents killer from benefiting from the crime
·         Joint tenants w/ rights of survivorship changes to tenants in common if the killer and the victim owned the property as joint tenants w/ the right of survivorship together.
3        Advancement – EPIC 2109:
o       Individual dies intestate as to all or a portion of estate – property decedent gave during the decedent’s lifetime to an individual who, at the decedent’s death, is an heir is treated as an advancement against their share of the intestate instate:
·         Advancement will be recognized if the following circumstances:
1)      The decedent declared in a contemporaneous writing or the heir acknowledged in writing the gift was an advancement;
a)      the decedent declaration in writing can’t be retro active
b)      the heirs acknowledgement does not have to be contemporaneous
2)      The writing or the acknowledgement indicates that the gift is to be taken into account in computing the division and the distribution of the decedent’s estate
·         Value of advancement (as computing to the advanced heir’s intestate share) – valued of thing at the time it was advanced to the person or at the time of the decedent’s death, which ever is first.
·         If recipient fails to survive the decedent – the property is not taken into account in computing the distribution of

t who was domiciled in this state who dies testate may file w/ the court an election in writing for 1 of the following:
(1)   Abide by Terms of the will
(2)   (b) The spouse takes ½ of the sum that spouse would have received if testator died intestate, reduced by ½ of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon decedent’s death
(3)   Dower rights – widow
§         Widow has a choice of any of the above – husband must choose out of the first 2.
§         Limited to 1 choice.
o       Purpose (forced/election) – from preventing the testator from disinherenting their spouse by “forcing” to give share of the testate estate that spouse “elects”
§         This is based on distributable estate
Community Property – (only in: CA, AZ, ID, LS, NM, WA, WI, TX)
o       Community Property (marriage is a partnership) – Earnings of either spouse during marriage and items purchased with those earnings are community property
·         Exception – Property acquired during marriage by gift, devise, or inheritance, as well as property that a spouse brings to the marriage is separate
o       Under community Property law system – the spouse would be entitled to ½ of the community property.
Spouse or Child Not Provided for in Will – EPIC 2301
1.      Protection of After-Married Spouses (2301):
o       General Rule – 2301(1) If the testator’s surviving spouse marries the testator after the testator executes his/her will, the surviving spouse is entitled to intestate share if not any of following:
(1)   property devised to or in trust of testator’s child who was born before the marriage and is not the surviving spouses’
(2)   property devised to or in trust for the benefit of a descendant of a child described in (1).
(3)   Property that passes to child under 2603 or 2604.
o       Exception – 2301(2) protection of after-married spouses will not apply as the above describes if:
(1)   From the will or other evidence – it appears that the will was made in contemplation of the marriage (conditioned to the marriage)
(2)   The will expresses intention not to include subsequent marriages
(3)   Testator provided for spouse outside of the will and is reasonably inferred from evidence that is to be a substitute.
o       In the event that there is children who are provided for in the will – the intestate share of the spouse is computed after the children receive their share.
·         Barret – the after-married spouse received her intestate share of the distributable estate after the decedent’s children were provided for, but she disinherented the step children b/c step kids don’t collect.
   2.   Protection of After-Born Child (2302):
o       A surviving child qualifies as an “omitted child” when:
(1)   Born after the testator executes their will
(2)   Adopted after the testator executes will
(3)   Testator believes their child is dead, therefore omits them from the will, but the child is really alive.
o       Omitted Child receives one of the following under 2302: