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

WILLS OUTLINE:

I. BASIC TERMS:
a. Intestate: Of or relating to a person who has died without a valid will.
i. You can die partially intestate because it could be invalid; they will would dispose of some of your property, and the rest that is invalid would be disposed of intestate.
b. Testate: having left a valid will at death.
c. Heir: a person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property.
i. If you take something under the intestate decedent’s statute, then you are an heir.
d. Devise: when used as a noun, a testamentary disposition of real or personal property.
i. The provision
e. Devisee: a person designated in a will to receive a devise.
f. Decedent: the dead guy
g. Descendant: generally, dead guy’s children, grandchildren, great grandchildren…
h. Testator: one who makes a will
i. 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 will for real property).
i. You do not have to say “Will and Testament”, but many still do.
1. Defined very broadly.
j. Codicil: amendment to an existing will.
II. MORE DEFINITIONS:
a. Who are one’s descendants? (1103k)
i. In relation to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.
1. Parents, grandparents, etc.
b. Who is a child? (1103 f)
i. A child DOES NOT include: an individual who is only a stepchild, a foster child, or a grandchild, or more remote descendant.
1. Stepchild is not within the definition.
ii. DEFINITION: an individual entitled to take as a child under this act by intestate succession from the parent whose relationship is involved. Child does not include an individual who is only a stepchild, a foster child, or a grandchild, or more remote descendent.
iii. If you formally adopt a child – natural child.
1. EPIC 2114
2. Under epic you could have multiple parents.
iv. Illegitimate child: doesn’t matter under EPIC, they are treated the same.
III. POLICY ISSUES:
a. The courts will attempt to honor the wishes of the decedent.
i. However, this is limited by law and public policy.
b. The decedent is no longer with us; therefore, we may need extrinsic evidence to determine his or her wishes.
c. Without any evidence, t he law will make presumptions.
i. It’s a rebuttable presumption and if other evidence comes up to challenge that, extrinsic evidence can rebut it.
ii. Non-rebuttable example: you’re married and you leave everything to your spouse, and then you get divorced but you never go back and change your will. Under MI law, they won’t allow extrinsic evidence that they wanted their ex-spouse to get their estate.
d. EYERMAN V. MERCANTILE TRUST CO: decedent wanted her house raised and the lot sold and put in to her estate.
i. With all costs, the court found that should this happen, the estate would only be receiving $650 when the land was worth $40,000.
ii. Against public policy: that which conflicts with the morals of the time and contravenes any established interest of society.
1. Acts are said to be against public policy when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from the illegality or immorality.
iii. The court can intervene and if they find it to be a violation of public policy, they will change it.
IV. GIFTS CAUSA MORTIS:
a. 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.
b. Required Elements:
i. Donative intent
ii. Effective delivery (including constructive delivery)
iii. Made in contemplation of death
iv. Acceptance (presumed)
c. VAN WORMER CASE:
i. Decedent moves to California after suffering from depression and giving his brother the legal title to a CD worth $3200.
ii. The wife is trying to argue that the CD be left in his estate and that it goes to his children.
1. The brother is arguing that it is a gift causa mortis.
iii. The court said that he did not ultimately recover and that he died from the same thing that he was suffering from when he transferred the stock over to his brother.
d. EXAMPLE: D suffered a heart attack at a family gathering. As the ambulance crew was taking him out of his home, D took of his Rolex watch and handed it to R, saying, “R take my watch, you can keep it. R said OK and took the watch. D survived the heart attack, but died 2 years later in a car accident. His valid will left the watch to B.
i. This is just a completed inter vivos gift. He did not die of the condition to which he gave a way.
V. WHAT GOES IN TO THE ESTATE:
a. What assets did they have an interest in? Once identified, you need to determine whether it goes in to the probate bucket, or the non-probate bucket.
b. Assets that pass by operation of law, or will substitutes:
i. Joint savings accounts
ii. Those assets that are in your name alone that require your signature.
1. Exception: personal property
c. EXAMPLE: E and P were married for 47 years when E died. They had 2 children, O and D. When E died, he owned the following:
i. A home in which they resided. The deed was: “to E and P, as tenants by the entireties”.
1. This is non-probate because P is still alive.
ii. A condo in MI – the deed stated: “to E, D and O, as joint tenants with right of survivorship.” The condo was fully paid for.
1. Non-probate, because the others were still alive.
iii. A family farm that was deeded: “to E and DC as equal tenants in common”. DC was E’s cousin. The farm was fully paid for.
1. Tenants in common are treated different; they are considered to have an undivided interest. He would have a 50% interest.
a. This would then go to the probate estate.
iv. A savings account in E’s name.
1. Probate asset
v. A 2005 Lexus RX 330, titled in E’s name.
1. Probate asset
vi. A paid up life insurance policy, naming P as the beneficiary.
1. Non-probate asset because P is the beneficiary.
vii. An investment portfolio, titled in E’s name:
1. Probate asset
viii. Personal property:
1. Probate asset (this is the one exception)
VI. WILL SUBSTITUTES:
a. Life insurance: contractual agreement wherein the beneficiary receives payment from the insurer upon death of the insured.
i. Owner
ii. Insurer
iii. Insured
iv. Beneficiary
b. Joint tenancies: property passes to surviving joint owners.
c. Tenancy by the entirety: property held by husband and wife.
d. Paid on Death Accounts: can be used with investments and bank accounts.
e. Qualified Monies: IRAs, 401(k): should always have a beneficiary designated.
f. Annuities: operate like life insurance but may have income tax consequences.
g. Trusts: you can put whatever strings on that you want, as long as you don’t run in to anything relating to the rule against perpetuities.
i. Popular if you have minor children. You don’t want to pay all of that out to them when they’re that young OR to their guardian because they might use it all when it’s not technically theirs.
ii. Testamentary trust: established by the terms of the will itself.
VII. PROBATE PROCESS:
a. Decedent passes away
b. Testate:
i. Will is submitted to probate
c. Intestate/Partial Intestate:
i. Petition/application apply for letters of authority.
d. Personal Representative (P.R.) is appointed:
i. By will
ii. Priority established by statute
e. Administration (formal or informal):
i. Collect assets
ii. Notice to creditors
iii. Pay estate taxes, if applicable
iv. Inventory and accounting
v. Partial and final distributions
VIII. PRIORITY OF CLAIMS: EPIC 3805:
a. 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:
i. (a) Costs and expenses of administration:
1. Attorneys, court costs, executor fees
ii. (b) Reasonable funeral and burial expenses
iii. (c) Homestead allowance
1.

parents.
d. Illegitimate child (EPIC 2114(1)(c)): a child not conceived or born during a marriage is an individual born in wedlock if the child’s parents marry AFTER the conception or birth of the child (illegitimate child is still considered a “child” here!)
e. Parent (EPIC 1106(i)): includes, but is not limited to, an individual entitled to take, or who would be entitled to take, as a parent under this act by intestate succession from a child who dies without a will and whose relationship is in question.
i. Parent does not include an individual who is only a stepparent, foster parent, or grandparent.
f. Surviving descendent (EPIC 2106(3)(b)): a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under 2104.
i. EPIC 2104: the 120 hour rule: an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent’s heirs are determined accordingly; have to prove by clear and convincing evidence that heir survived decedent by 120 hours.
1. This is an administrative rule to keep the property from continuously going through different probate estates.
2. It has actually never been litigated before.
g. EPIC 2108: Individual in Gestation: an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.
XI. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE:
a. EPIC 2103: Any part of the intestate estate does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent:
i. The decedent’s descendants by representation
ii. If there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent
iii. If there is no surviving descendant or parent, the descendants of the decedents parents or of either of them by representation
1. Talking about the descendant’s of the parents. Decedents brothers and sisters, nieces and nephews, etc
iv. If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one of more grandparents, ½ of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparents or either or either of them if both are deceased, the descendants taking by representation; and the other ½ passes to the decedent’s maternal relatives in the same manner. If there is no surviving 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.
1. ½ to maternal grandparents, ½ to paternal grandparents.
2. Then to aunts and uncles, etc.
b. If there are no eligible takers in (i) through (iv) above, then the estate will escheat to the state.
c. If there is one surviving descendant, then you don’t have to worry about ascending up.
i. The entire net distributable estate will go to the one remaining descendant.
d. You only ascend up if there is no surviving spouse or descendants.
XII. WHO IS A SURVIVING SPOUSE:
a. Spouse is defined by state marriage laws, not EPIC.