Wills, Trust, and Estates

Boilerplate Clause for Spendthrift

"No part of this trust, either principle or income, shall be liable for the debts of the beneficiary, nor shall the same be subject to seizure by any creditor of his."

Holographic Codicils

(In Re Estate of Kuralt)- a holographic codicil can be used to rectify any ambiguities in an earlier will.

T devises entire estate: ½ to A, ½ to B. B dies before T, leaving child C. T dies. What happens to B's share?

(Lapse) - Common Law: B's share would fall to intestacy because of the no residue of the residue rule. A and C would split B's half that fell to intestacy, leaving A with ¾ and C with ¼. - No NROR Rule: The MM does not have a no residue of the residue rule, meaning that B's portion would fall back into the residue leaving A with the entire estate. - Anti-Lapse Statute- Because B had a special relationship with T (Siblings) and there was an available taker for B, C, then, C would take B's share. (Modern Majority- ALS & No NROR Rule)

In 2015, T executes a will devising all of his property to A. A and B are witnesses to the will. What results in 2015? Additionally in 2016, T executes a codicil devising $5,000 to C. C and D are witnesses to the codicil. What result in 2016? Additionally in 2017, T executes a second codicil devising a diamond ring to C. D and E are witnesses to the second codicil. In 2017, what results?

(Republication Hypo) o In 2015, A is considered an interested witness. So, under the UPC A would only get up to their intestate share based on the 2015 will. o In 2016, C would be an interested witness, therefore their interest would be purged. A would get their entire share now that there are two witnesses and A is not one. B, C, and D would be witnessing A's gift. It would be as if the interests were read in 2016. o In 2017, A and C would get what they were supposed to receive because they are no longer interested witnesses. C would receive their $5,000 and diamond ring. A would receive the residue. Again, it is as all of the interests are read in 2017.

Family Allowance During Administration of Will under UPC:

(a) the decedent's surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. (b) not chargeable to the shares passed by will, unless otherwise provided; and death terminates right to allowances not yet paid. (It is "skimmed off the top.")

How to Show Termination or Modification is Needed in a Trust:

- (1) If Settlor Consents- the settlor plus all beneficiaries may modify or terminate. - (2) If Settlor Does Not Consent: o Material Purpose Doctrine- (Majority) must have consent of all beneficiaries AND the termination must not be contrary to the material purpose of the settlor. o Equitable Deviation Doctrine- (Modern Trend) Petitioner must show an unanticipated change in circumstances that either (1) defeats or impairs the purpose of the trust; OR (2) furthers the purpose of the trust. - Decant- when the trustee, in managing an irrevocable trust, places the trust property in a new trust with different governing language (still for the benefit of the beneficiaries). This allows you to pour the trust into the other trust with new terms.

The more common approach to a purging statute is to permit a witness to take the legacy, but only to the extent it does not exceed the valude of the intestate share that the witness would be entitled to if there was no will. Suppose that X, an attesting witness, would receive an intestate share of $100,000 if the will were not admitted to probate; probate is granted, however, and the will includes a bequest to X of (a) nothing, (b) $50,000, or (c) $150,000. Under this statute, how does X receive under the will?

- (a) X would receive nothing because the will did not provide a bequest for him. - (b) X would receive 50k because the will provided 50k and it does not exceed his intestate share. - (c) X would receive 100k because he would have received that is the max amount under the intestate share.

Constructive Trust

- A legal fiction and remedy employed by courts of equity to compel the owner of property to convey that property to the victims of that owner's fraud. Generally, the goal of a constructive trust is to prevent unjust enrichment of a party who receives title to property but is not legally entitled to that property.

Jurisdiction of Probate Courts

- A probate court has only been granted by statute the authority to administer decedent's estates, any mistake assumption of jurisdiction over a living person's estate is ineffective; titles from such administration have been held void, even for bona fide purchasers. o Ultra Vires- when a court is working outside of their scope of power.

Reasons for Family-Centered Intestacy:

- A return to those who are likely to have assisted in building up the decedent's estate. - A continuing support to those who are likely to have been supported by the decedent during his or her lifetime.

Types of Delivery and Methods

- Actual/Manual- actually handing over the object of the gift. - Constructive Delivery- delivery of something that opens access to the gift. (key) - Symbolic- transfer of ownership by handing over something that represents the gift. (Deed)

Advancement

- Advancement- an advancement is a gift of property made by a parent to a child (1) during life and (2) in anticipation of the child's intestate share of the parent's estate. If the parent dies intestate, the amount of the advancement is charged against the child's share.

Suppose O opened a safety deposit box jointly with his sister, A. He planned to give her everything deposited into the box. At a restaurant, O handed A four $5000 bearer bonds, saying: "I want you to have these." A deposited them into the joint safety deposit box. Over the next several years, O placed 22 more of those bonds in the safety deposit box, along with a note stating: "To be clear, everything in this safety deposit box I have intended to give to my sister, A." When O dies, the entire contents of the safety deposit box are the 26 bearer bonds. Who owns the contest of the safe deposit box?

- Answer: A would get the 4 bearer bonds because O expressed his intent to A. The other 22 were not relinquished of control during life so there is no gift. The 22 would go to intestacy (probably).

O owns a pearl ring. While visiting her daughter A, O leaves the ring on the bathroom sink. After O leaves, A discovers the ring. A does not telephone O to tell her the ring has been found. A week later, at a dinner with friends, A surprises O by producing the ring. O takes the ring, looks at it, and then gives it back to A, saying: "I want you to have it. It's yours." A tries the ring on, but it is too large for A's finger. O then says, "let me wear it until you can get it sized to fit you." O leaves the dinner wearing the ring, is struck by a car, and is killed. A sues O's executor for the ring. What result?

- Answer: A would have the gift because there was a clear intent to gift A the ring by O. O is holding the ring as a voluntary bailment for A.

Suppose A, acting with donative intent, delivers two rings to B; the next day, B gives the rings back to A to wear saying, "you are just not you without them." At A's death B claims the rings pursuant to A's original gift. What result?

- Answer: Acceptance is the Issue. Does this amount to a rejection of the rings by B? B could have accepted and given them back to A for a life estate and accepted the remainder.

T's Husband and Sister C die. T executes a will devising Blackacre "to my sisters"; residue to Stepson, S. Sister A dies. Then, T dies. What results?

- Answer: Following Antilapse and having no intent in the devise to rebut antilapse: 1/3 to B and F, 1/6 to D and E from A's 1/3, and the residue would go to S. - Issue: Did T mean to leave C out because she predeceased T? Most JX would say C is still a member of the class if there was no class restrictions (such as "surviving sisters").

O writes a check to B on her checking account and hands it to B. Before B can cash the check O dies. What result?

- Answer: No Gift. Why? Because it is a check. The donor still has the power to revoke the check. There is no "wrench of delivery" until the money is handed over.

O owns a pearl ring. While visiting her daughter A, O leaves the ring on the bathroom sink. After O leaves, A discovers the ring. A does not telephone O to tell her the ring has been found. A week later, at a dinner with friends, A surprises O by producing the ring. O takes the ring. O then tells A "I promise to leave you this ring when I die." Has O made a gift of the ring to A?

- Answer: No gift because there was no present intent to make a gift.

Suppose that O, while wearing a wristwatch, hands A a signed writing saying: I hereby give A the wristwatch I am wearing." Is this a valid gift?

- Answer: No. There is a lack of delivery. Inter vivos gifts need to be actually handed over if they are immovable.

A gives B a $28,000.00 engagement ring. Later, the engagement is broken. Who is the owner of the ring?

- Answer: This is a conditional gift. Usually gifts are not valid for lack of intent. Most jurisdictions have enacted statutes that require there be a showing of fault. If the donor was at fault then the donee might be able to keep it. If they are the reason that the marriage did not occur, then they will not be able to keep the ring.

O owns a pearl ring. While visiting her daughter A, O leaves the ring on the bathroom sink. After O leaves, A discovers the ring. When A telephones O to tell her of the discovery, O tells A to keep the ring as a gift. Has O made a gift of the ring to A? If so, can O change her mind the next day and require A to return the ring?

- Answer: Yes, this would be an inter vivos gift. (There was intent, delivery, and acceptance- flexible). O would not be revoke the gift because gifts are irrevocable.

T devises his entire estate: one-half to B, one-half to A, "but if A or B or both do not survive me, then I give such predeceasing child's share to my friend F." B dies before T, leaving a child, C. T dies. What happens to B's share under a modern majority?

- Anti-lapse Rules would not apply because there is clear intent that T did not want a substitute take. Therefore, F would receive one half of the estate.

Anti-Lapse Statutes

- Anti-lapse statutes are a majority rule that create a special implied gift to the substitute taker, preempting the general rules concerning the disposition of lapsed gifts. Most Anti-Lapse Statutes only operate if (1) the deceased beneficiary bears a specific relationship to the testator (generally within the second parantela); and/or (2) the testator is survived by at least one eligible substitute taker. Additionally, anti-lapse statutes do not apply automatically and yield the intent to the intent of the testator. ALS do not apply if there is at least one of the named individuals that survive the testator. The predeceased named individuals' shares go to the other surviving named individuals, not to the predeceased's issue.

T executed a will leaving her residuary estate to her three siblings, A, B, and C in equal shares. Later, A died without issue and B died survived by two children, X and Y. Finally, T died survived by C, X, and Y. T was also survived by Z, the child of a fourth sibling D who died before the will was executed. How should T's residuary estate be distributed? What difference would it make if the residuary gifts too the form of a class gift to T's "siblings"? To her "surviving siblings"?

- At common law we would follow the "no residue of the residue" rule meaning that any devise of the residue that would lapse would fall into intestacy. Here, A and B are deceased, meaning their portion would fall into intestacy because they lapsed while receiving the residue. C is still alive meaning C would still receive her portion. (2/3 to intestacy, 1/3 to C). - Under the UPC there is not a "no residue of the residue" rule, meaning that A and B's failed gifts would fall to back into the residue. Here, C would receive all of the residue which would include A and B's devise. - ALS- Most jurisdictions have an anti-lapse statute. Because A died without issue, then A's branch would not receive anything, leaving B and C to receive. The lapse of A's residue would be added back to the residue leaving B and C to split the entire reside. Because B had a specific relationship with T (sibling- w/in second parentela) and has at least one eligible substitute taker (X and Y) then the eligible takers would take B's gift. (C ½, X & Y ¼) - Sibling- Class Gift- Everyone who is alive or has issue at the time of the death of T would receive. (Therefore, B, C, and D would receive 1/3. A is dead and would not receive because of lapse.) - Surviving Siblings- Everyone who is a surviving sibling at the time of T's death would receive. (C would get everything)

Choice of Law

- Choice of Law- The law of the testator's domicile state controls for testamentary trusts. The law of the trustee's domicile state controls for inter vivos trusts. Though, the testator/settlor may specially choose what controlling law may control in the instrument.

Republication by Codicl

- Codicil- A codicil is a written instrument, executed with the same formalities as a Will, which modifies or supplements an existing Will. A codicil triggers the doctrine of republication; however, contemporary Wills statutes provide that a valid Will operates on all property owned at death regardless of republication. If a will is republished by codicil, then the will is considered "executed" at the time of republication. - Requirement of a Valid Will for Republication- The doctrine of republication has no application unless there is a valid Will in existence at the time the codicil is executed; however, courts generally hold that an instrument like a Will (ex. a codicil) is validated by a subsequent codicil of it, and these decisions can be justified under the Doctrine of Incorporation by Reference.

3 Functions of Administration of Estate by Personal Representatives

- Collecting assets of the estate - Paying expenses, creditors, and taxes - Distributing the remaining assets to the decedent's successors.

Marital Status Possibilites

- Common Law Marriage- parties live together and hold themselves out as husband and wife, without a formal ceremony. - Putative Spouse- an individual who believes in good faith that he or she is validly married may be entitled to (quasi-marital) marital property rights, even though the marriage was invalid. - Same-sex Marriage- same sex couples may exercise the fundamental right to marry in all states and there is no lawful basis for a state to refuse to recognize lawful same-sex marriage performed in another state on the ground of its same-sex character. - Unmarried Cohabitation- individuals live together, pooling earnings and assets, holding themselves out as a married couple, even though they are not legally married. Generally, at death one of the parties would not be entitled to intestate share of the decedent's estate BUT it could be held out as an express or implied contractual agreement if they are pooling their money together.

Surviving Spouse (Intestacy Statutes)

- Common Law- a surviving spouse would take dower or curtesy. o Dower: widow would received life estate in 1/3 inheritable real property of which the decedent was seised during marriage. o Curtesy: widower received life estate in all inheritable real property of which the decedent was seised during marriage, if issue were born of marriage. - Modern Law- a surviving spouse would take a designated fraction of the decedent's estate; typically ½ or 1/3, depending on whether there were surviving issue of the decedent. Most jurisdictions state that if the decedent's estate does not surpass a certain dollar amount, then the spouse is the sole successor. o Spouses In Community Property- spouse has one half share; plus, descendant's share because of intestacy. (Minority) o Spouses in Separate Property- spouse's share depends on if there are children or other close family members. (Majority)

How societies deal with property rights at death.

- Confiscate- the government, state, or collective can confiscate property. The modern form is heavy death taxation, often treated as an important aspect of a general policy aiming to reduce inequality of wealth. - Freedom of Testation- stands in contrast to confiscation. The idea that a person has the right to choose who will succeed to things of value left behind at death. - Inheritance by Rule- The society has definite rules, laws, or customs to designate who shall inherit and when. o Intestacy Laws- laws that set out rules of inheritance for people who die without a will. Modern intestacy laws favor members of the nuclear family.

Four Functions of Trusteeship

- Custodial- taking custody of the trust property and properly safeguarding it. - Administrative- accounting and record keeping as well as making tax and other required filings. - Investment- reviewing the trust assets and making and implementing a prudent investment program. - Distribution- making distributions of income or principal to the beneficiaries.

Common Grounds to Contest a WIll

- Defective execution, valid revocation, testamentary capacity, testamentary intent, undue influence, fraud, mistake

Domicile

- Domicile- (1) a domicile is a place, usually a person's home, to which the rule of Conflict of Laws sometimes accord determinative significance because of the person' identification with that place (Brain and Butt Test). (2) Every person has a domicile at all times, and no person has more than one domicile at a time.

Dower and Curtesy

- Dower- common law estate that entitled a widow to a life estate in 1/3 of all land owned by her deceased husband at any time during the marriage. - Curtesy- at common law, the husband took a similar estate to dower, except the curtesy only arose upon the birth of issue of the marriage and entitled the husband to a life estate in all of the deceased wife's land. o Constitutional Limitations to Dower and Curtesy- both of these doctrines are open to constitutional challenge on equal protection grounds. o Statutory Substitutes to Dower/Curtesy- We use modern elective share/ (aka forced share) instead of dower and curtesy.

Ranges of Testamentary Freedom

- Forced Succession- assets would go to you children or next of kin (Most Countries) - Freedom of Disposition- you can (basically) give your assets to anyone. The Freedom of Disposition helps facilitate rather than regulate. (American Law) - Confiscation by State- The state will take your goods (Failed Soviet Experiment)

2 Types of Probate

- Formal Probate(UPC §3-401)- Formal Probate is probate litigation in which a representative petitions to a court for formal testacy. The court then gives notice to all interested parties who may hold an interest in the litigation. The formal proceedings become final judgements if not appealed. o Supervised Administration by a court appointee. - Informal Probate (UPC §3-301)- The most common form of probate, informal probate is when a representative petitions for appointment. The validity of the will is not litigated, unless the interested parties object. Distribution is commenced through the personal representative. o Unsupervised administration without a court appointee.

Ademption

- If one has a specific gift of property and it does not exist at death, then the beneficiary loses the bequest. Courts will say that the "gift adeemed by extinction." Ademption follows item theory which presume that it was the testator's intent for specific gift to adeem if not available. o Change of Form and Ademption- ademption does not occur if there is a change of form, but not of substance.

Pretermitted Child Protections:

- If the will is successfully contested, then the child may be able to inherit through intestacy statutes. - If the child was omitted by accident, then the child may be able to inherit through Pretermitted Child statutes. Generally, the child would be able to claim "off of the top" of the parent's estate.

Protection of Pretermitted Children Exceptions

- In most jurisdictions, a pretermitted child will not take a share if there is evidence: o It appears from the will that the omission was intentional. o At the time the will was executed, the testator had other children and devised substantially all of the estate to the other parent of the omitted child OR o The testator provided for the omitted child by a transfer outside of the will with the intent that it was in lieu of a testamentary gift.

Three Requirement of Gifts:

- Intent - Delivery - Acceptance

Inventory for Creditors

- Inventory requires that fiduciaries pull together and organize the estate at the beginning of its administration. o UPC and Inventory- The UPC requires that the personal representatives mail the inventory of the decedent's property to all who are "interested persons who request it."

T bequeaths a fund in trust "for my wife for life, then to my surviving descendants per stirpes." After death, his son, A, dies survived by a wife and a minor child, B. A's wife remarries, and her second husband legally adopts B. Then T's wife dies. - Is B entitled to share in T's trust fund designated for his surviving descendants distributed per stirpes? - Assume also that T had a biological daughter, D, of whom he did not know. Is D entitled to share in T's trust fund designated for his surviving descendants distributed per stirpes? - How would this be distributed per stirpes?

- Is B entitled to share in T's trust fund designated for his surviving descendants distributed per stirpes? o Answer: B is likely entitled to share in T's trust fund because B is not likely to have been adopted out of T's estate. Most jurisdictions provide an exception for adoptions under the Step-Parent Rule, in which the adopted child can still inherit if the child's surviving natural parent is married to the adoptive step-parent. As such, B is not likely to have been adopted out of T's estate because the adoption is by a step-parent married to the custodial natural parent, who remarried after the death of the child's other natural parent. - Assume also that T had a biological daughter, D, of whom he did not know. Is D entitled to share in T's trust fund designated for his surviving descendants distributed per stirpes? o Answer: D is likely entitled to share in T's trust fund because D is a biological descendant of T. "Surviving descendants" presumptively include all biological descendants. D must prove by clear and convincing evidence that there is the requisite genetic link between T and she. Here, the facts indicate that D is T's biological daughter. However, D most likely will have to prove such is true during T's life, to provide T an oppurtunity to rebut the evidence and to protect his freedom of disposition. - How would this be distributed per stirpes? o B will likely get ½ and D will likely get ½ under per stirpes distribution, if D were able to meet her burden of proof.

4 Types of Will Substitutes

- Life Insurance - Pension Accounts - Joint Accounts - Revocable Trusts

T devises Blackacre "to my son Sidney if he survives me," residue to his wife Wilma. Sidney dies before T, leaving a daughter, Debby. T dies. Who take Blackacre, Wilma or Debby?

- Majority Rule: The word "if he survives me" is evidence that T did not want Sidney's descendants to be substituted for Sidney. Therefore, Wilma would take Blackacre. This is evidence that T did not want to use an Anti-Lapse Statute. - UPC- the UPC would interpret this differently. The term "if he survive me" is not a sufficient expression of contrary intent so an Antilapse statute would apply leaving Debby with blackacre.

F married W1 and had child, A. F and W1 divorced. F remarries W2 and has children B and C. F and W2 die. Then C dies. Who receives C's estate? (Half-Blood Hypo)

- Majority: A and B would get half because half-bloods are treated as normal heirs. - Minority: 1/3 to A, 2/3 to B.

3 Functions of Probate:

- Making property owned at death marketable (title clearing) - Paying off the decedent's debts (creditor protection) - Implementing the decedent's donative intent respecting the property that remains once the claim of creditors have been discharged (distribution)

Oral Trusts

- Oral trusts raise the question of fraud with a remedy of a constructive trust for the "settlor." Example: Where A conveys land to B by a deed absolute on its face and later seeks to recover the land, alleging an oral trust for A's own benefit, many courts readily infer that B obtained the land by fraudulently promising to hold it for A. A finding of fraud in the original conveyance allows courts to impose a constructive trust for A's benefit. o ** Although, if the intended beneficiary were a third party, the question arises whether equity should impose a constructive trust for the benefit of the intended third party beneficiary OR merely restore the land to the original settlor (resulting trust).

Priority of Succession Systems

- Parentelic System- priority is given to nearer ancestors and their descendants over more remote ancestors and their descendants, without regard to degrees of consanguinity. This is the majority rule. o Consanguinity- the fact of being descended from the same ancestor. - Gradual System- priority is given to relatives who are nearest in degree of consanguinity (next of kin).

Posthumously Born

- Posthumously Born- If a child is in gestation at the decedent's death and is subsequently born alive, the child is treated as a "life in being" at the decedent's death for the purpose of inheritance if they live 120 hour after birth.

Revocation of Will by Written Instrument

- Revocation by Inconsistency: a will that makes a complete disposition is presumed to "replace" a previous Will, revoking all its provisions by inconsistency. A will that does not make a complete disposition is presumed to "supplement" the previous Will, revoking it "only to the extent the subsequent will is inconsistent with the previous will. Hand Written Notations- in the states that recognize holographic Wills, a testator may revoke a Will, holographic or attested, by an appropriate notions written and signed by the T. It is difficult to say that handwritten notation will be accepted in jx that do not recognize HW that increase a disposition

3 Ways to Terminate a Trust:

- Revocation- which is generally rescission or reformation by the settlor. - Deviation- Done by the trustee in which they deviate from a specific expression in the trust. - Modification/Termination- the trust is modified or terminated by the trustee or beneficiary.

Secret Trust and Semi-Secret Trust

- Secret Trust- A secret trust is a trust which arises when property is left to a person (the legatee) under a will on the understanding that they will hold the property as trustee for the benefit of beneficiaries who are not named in the will. Extrinsic Evidence is necessary to prevent unjust enrichment of the promisor or trustee. If proven, courts will impose a constructive trust on the promisor or trustee. - Semi-Secret Trust- a type of trust where the will mentions a trust, but it does not specifically name any beneficiaries or is unclear on the specific terms of the trust. Thus, it is semi-secret because only part of the trust is written in the will. However, important key provisions are left out. This will usually result in the court issuing what is called a resulting trust. A resulting trust is where the property or funds are returned back to the testator (the person who created the will). This is considered an appropriate remedy because in a semi-secret trust, the beneficiaries are not named or identified. Thus, the property owner will simply have the property returned, or, if they are deceased, it will be added to their total estate.

Incorporation by Reference (aka Living Will)

- Separate writing delineating distribution of the estate may be incorporated into the Will if: o (1) the separate writing is in existence at the time the will was executed (UPC does not require this); and, o (2) the Will (i) refers to the separate writing as being in existence, (ii) sufficiently identifies it, and (iii) manifests a clear intent to incorporate it to be part of the Will. o ** The UPC does not require that the writing be in existence at the time the will is executed because parties can generally get around this requirement anyway. Therefore, they deem it as unnecessary.

G types out her "last will and testament" and asks B to help her execute it. G signs the document and then B signs on the first signature line for the witnesses, leaving the second line blank. How would this be handled in the two types of curative doctrines? How would substantial compliance defined if there was a self-proving affidavit?

- Substantial Compliance- in most states the will would be denied probate because it is not signed by two witnesses. o The self proving affidavit serves a different function than the will, but will give an affidavit the effect of an attestation clause; thus, serving the purpose of requiring attestation. - Under the UPC (Harmless Error)- a court may dispense with the requirement that there must be two witnesses, for there is clear and convincing evidence that G intended the document to be her will.

Assisted Reproduction and New Technologies

- Surrogate or Gestation Agreements- The woman who gives birth to the child is the legal mother, unless there is a lawful gestation or surrogacy agreement. - Unmarried partners- If partners are unmarried, then it must be asked if the unmarried partner "did anything to help the child become conceived?" Such as: donate sperm or eggs, help pay, help pursue, hold the child out as their own, etc. - Sperm donors: o The husband of the woman who gives birth to the child is the legal father, not the sperm donor. o If the sperm donor is known and voluntarily identified to an unmarried woman, then the sperm donor is the legal father. - Assisted Reproduction & Lawful Same-Sex Partners- lawful same-sex partners, who consented to and ultimately arranged for a pregnancy, are the legal parents of the child.

UPC and Reformation of Mistake

- The UPC allows for open reformation when there is clear and convincing evidence that the testator intended a certain outcome. This is very liberal and is not the majority, which requires ambiguities to reform.

Encouragement of Compromises

- The UPC holds that compromises are to be encouraged during probate and agreements are to be binding on subsequent devisees.

First Court to Take Jurisdiction

- The UPC vests responsibility for making the determination in the first court to take jurisdiction. This can create a "race to the courthouse."

Methods and Effects of Revocation of WIll

- The most common method of revocation is to execute another subsequent Will containing the express words of revocation. The UPC holds that revocation can be done by writing or act (meaning- burned, torn, cancelled, obliterated, or destroyed with the intent to revoke). Once a Will it revoked, all subsequent codicils are also revoked unless otherwise stated in writing. - Ways Wills Can be Revoked: o Writing. o Act w/ intent o Revocation by operation of law (ex. divorce) o Revocation by Lapse- death of beneficiary.

T devises entire estate "to my brothers and sister, A, B, C, D, and E, to share and share alike. A, B, and C die before T, leaving descendants (F, G, H). T dies. What happens to A, B, and C's shares?

- The term "share and share alike" means that the property should be split between the siblings evenly. In a modern majority there would be an ALS meaning that as long as the beneficiaries had a special relationship with the testator and there are issue that are available to take, then the issue should be allowed to take. Here, F, G, H, D, and E would all take in an equal 1/5 share.

T devises entire estate "to my living brother and sisters, A, B, C, D, and E, to share and share alike. A, B, and C die before T, leaving descendants. T dies. What happens to A, B, and C's shares in a modern majority?

- These are conditions precedent. Here, Living requires the sibling to survive. Because the other siblings have died the survivors would take the entire estate ½ each (to share and share alike).

Ways that Will Substitutes Differ from Wills:

- They are asset specific and deal with a specific type of property. - They avoid probate. - The formal requirements of the Wills Act do not apply to Will Substitutes.

Revocation of Will by Physical Act

- To destroy a will by physical act, the testator would need to be present. A destruction of the will by the direction of the testator without the presence of the testator is not sufficient to invalidate the instrument. Though, If a will cannot be found after the death of a testator, or has been found but is mutilated, then it is presumed the will was destroyed by the testator and not valid (Doctrine of Mutilated Wills). - Cancellation Notation on Will- Notation that a will is canceled is not sufficient to revoke a will. Some sort of cancellation must be written through the words/text of the will. (Cross out and sign next to them) - Alterations of Wills- where the statute provides for revocation of a Will "or any part thereof" by physical act, it is possible for a testator to eliminate a particular provision, while leaving the rest of the will intact.

Transfer of Title Under a Will

- Transfer of title happens a the moment the decedent dies. However, probate might be necessary evidence to validate title. The Will speaks from the death of the testator. o Protection of BFP Before Probate- Courts will recognize a protection of bona fide purchasers who have purchased for value if the will has not been probated in a reasonable time.

Excusing Harmless Error

- Types of Curative Doctrines for Harmless Error: o Substantial Compliance- The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of the formalities were served. (Majority) o Harmless Error Rule- The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will. (UPC)

T devises a home to niece, B, and residue to A. B predeceases T, leaving child, C, who survives T. What happens to A's share under a UPC Anti-lapse?

- UPC AL: C would take T's home because B is a descendant of T's grandparents. C falls within the required relationship of the anti-lapse rule.

Contractual Restriction on Revocation in WIll

- UPC- A contract to make a will or devise, or not to revoke a will or devise, or to die intestate may be established by (1) provision of a will stating material provision of the contract, (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (3) a writing signed by the decedent evidencing the contract.

UPC Distributions for Pretermitted Children

- Under the UPC if: o The testator had other children at the time the will was executed o AND o The will makes a provision for one ore more of the children, o THEN o The portion of the estate to which the pretermitted child is entitled is limited to the provision made to other children. - How the UPC Distributions for Pretermitted Children is Calculated: o The bequest to the other children are reduced, but no other beneficiary's bequest is reduced. o The pretermitted child take an equal share of the bequests to the other children just as he would have received had the testator included the child among the bequests to the other children.

- What happens if the testator does not sign the will but does sign a self proving affidavit? - What happens if the witness does not sign the will but does sign a self proving affidavit?

- What happens if the testator does not sign the will but does sign a self proving affidavit? o The Will is probably invalid because the self proving affidavit is not validating anything. - What happens if the witness does not sign the will but does sign a self proving affidavit? o It should be valid because the testator is validating his/her signature.

Delivery at Death of Real Property Through Escrow

- a deed delivered to a third party (escrow) with the intent there be another delivery to the grantee at the donor's death is a valid inter vivos gift because delivery takes place when the grantor relinquishes dominion and control of the deed, even though the grantee's interest does not become possessory until the grantor's death.

Gratuitous Assignment of Expectancy

- a gratuitous assignment of expectancy is unenforceable. B, the only child of A, has no transferable interest in A's estate until A's death and therefore cannot make a valid gift of an expected inheritance while A is living. On the other hand, at A's death B inherits an interest which can be transferred by gift.

Intestate

- a person who dies without a will

Delegation by Trustee

- a trustee can delegate the investment function of the trust but must do so with reasonable care, skill, and caution in selecting, instructing, and monitoring the agent. o Agent- who the trustee chooses to invest the trust with.

Precatory Words

- ambiguous words, such as "wishes" or "desires," underlying a grant that can be questioned to see if the settlor intended to set up a trust. In interpreting these words surrounding circumstances must be taken into consideration to see what is equitable. The trust does not blatantly have to say "trust", yet the words "trust" do not necessarily make it one. Words only meant to influence are not strong enough to establish a trust if there was no clear directive or obligation.

Accounting

- at the termination of a trust or completion of administration of an estate, fiduciaries must file an account with the court before they can be discharged. This account includes a description of the items in the property, income earned, disbursements, claims, administration, and the distribution of the remaining property. At settling, distribution and discharge is made. o Waiver of Accounting- A release by the beneficiaries to discharge the trustee to save on accounting. Trustees may offer this to the beneficiaries to save money and time. Beneficiaries may accept a waiver, but it generally does not have court protection and it prevents them from bringing future claims against the trustee.

Escrow and Gifts

- delivery to a third person may be a valid way to transfer a inter vivos gift at death. It must be determined if the third party is an agent or trustee. If the donor ever wants the items back, then they third party is an agent.

Estate

- for the purposes of probate administration, the estate comprises all property owned by the decedent at death which is capable of being transferred by will. Meaning that property that passes from the testator during life is not able to be transferred at the will.

Substitute Judgement for the Incompetent

- the guardian or conservator of an incompetent person is authorized to make gifts of the ward's property to person's whom the ward is legally, morally, or equitably obligated to support, or to charities, if it is likely that the ward would make such gifts if he were legally competent to do so. The recipient must be someone who would take under intestacy law anyway, an equitable recipient, and be able to make an argument that they should receive the property in question.

Personal Representative

- the person charged with administering a decedent's estate. o Executor- a personal representative that was named in the will. o Administrator- a personal representative that is not named in the will, but appointed.

Immovable and Personal Property

- there is a preference to hand over a personal property gift, unless immovable. It is rare for personal property to be immovable.

Suppose Husband and Wife have been lawfully married for 20 years and have two children together. Husband dies, survived by Wife, their two children, and the Wife's two children from the Wife's previous marriage. Husband's probate estate (after satisfaction) is valued at about $400,000.00. How is the Husband's devisable estate likely distributed?

225+1/2 if D are also S's but S has other; rest D W= $312,500 H's Children= $87,500 (43750 each)

Facts of Independent Significance

A Will may identify the beneficiaries, or the property given to them, by reference to acts or events, which have independent, non-testamentary significance. i.e.: all furnishings in my summer home; I leave you my gold watch (which one?).

Insane Delusion

A belief that is by definition false; and both unreasonable, AND there can be no other basis for the belief in observable facts. If the delusions effect the testators testamentary capacity, then the will may fail. BUT, if there is any other explanation for the delusion, the majority hold that the court will not overrule the will. It must be clear and convincing.

Disclaimer and Public Assistance

A disclaimer my affect the disclaimant's ability to get public aid if they disclaim so they do not lose it.

Discretionary Trust

A discretionary trust is one in which the trustee has the discretion (authority) to make, or not make, certain types of distributions. The trustee's discretion may be qualified (limited) by "definite" or "ascertainable" standards set in the trust instrument. (health, education, support, etc.)

Gifts to Minors

A minor can own property but lacks legal capacity to engage in property transactions. If a sale takes place while the owner is a minor then upon reaching majority, the minor may disaffirm the sale and hold the agent of the sale liable for any loss suffered as a result of the transaction. Hence, the need for trusts; or custodians.

UPC and Adopted After Death or Both Genetic Parents

A parent child relationship exists between both genetic parents and an individual who is adopted after the death of both genetic parents, but only for the purpose of f the right of the adoptee or a descendant of the adoptee to inherit through either genetic parent.

UPC and Adoption

A parent-child relationship exists between an individual who is adopted by the spouse of either genetic parent and: § The genetic parent whose spouse adopted the individual; AND § The other genetic parent, but only for the purpose of inheritance.

UPC and Adopted by Relative of Genetic Parent

A parent-child relationship exists between both genetic parents and an individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, but only for the purposes of the right of the adoptee or a descendant of the adoptee to inherit from or through either genetic parent.

Doctrine of Relative Revocation

A partial or complete revocation of a Will is presumptively ineffective if the testator made the will revocation (1) in connection with an attempt to achieve a dispositive objective that fails under applicable law, or (2) because of a false assumption of law, or because a false belief about an objective fact, that is either recited in the revoking instrument or established by clear and convincing evidence. Though, the presumption established is rebutted if allowing the revocation to remain in effect would be more consistent with the testator's probable intent.

Trust for Indefinite Class (UTC)

A power in a trustee to select a beneificiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons, who would have taken the property had the power not been conferred.

Resulting Trust

A remedy in which a court sitting in equity will order an equitable reversionary interest back to the settlor. This equitable reversionary interest arises: o (1) if an express trust fails (impossible) or makes an incomplete disposition (no exhaustion); or, o (2) if one person pays the purchase price for property and causes title to the property to be taken in the name of another person who is no a natural object of the purchaser's bounty.

Testamentary Capacity Threshold

A testator only needs a "modest level of competence," which is among the "weak class of sound minds" to make a will.

Termination By Completion of Purpose

A trust can only exist if the trustee is subject to duties with respect to property for the benefit of the beneficiaries. If there are not duties because the purpose of the trust is complete, then the trust is terminated.

Trust

A trust is an agreement where on person/entity (grantor or settlor) transfers assets (personal or real) to another person/entity (trustee), and instructs the trustee to hold the property for the benefit of yet another person/entity (beneficiary).

UTC and Indefiniteness

A trust is only created if the trust has a definite beneficiary or is (1) a charitable trust; (2) a trust for the care of an animal under section 408; or (3) a trust for a noncharitable purpose under section 409.

Honorary Trust

A trust that is not legally enforceable as a formal trust because there are no beneficiaries with legal standing to enforce the trust but which the court acknowledges as valid as long as the trustee willingly accepts and performs the duties described. If the transferee declines, she hold the property on resulting trust for the settlor. (The law does NOT allow an honorary trust, unless it is equitable and assented to by trustee).

Spendthrift Trust

A trust that states the beneficiaries' interests cannot be lost or transferred. The exception to this trust is the "self-settled trust rule" in which a settlor's own assets can not be protected from creditors by being placed in a spendthrift trust. (No Spendthrift trust for self). Additionally, as another exception tort creditors may be able to reach trust assets in extraordinary situations where public policy to protect a tort victim.

Degree of Expertise of Trustee

A trustee with special skills or makes representations of a special skill is under a duty to use those special skills.

Ambulatory

A will is ambulatory during a testator's life, meaning that it will not take effect until the testator's death.

Pour Over Wills

A will that bequeaths estate assets to an existing trust in order for distribution of the assets to be managed pursuant to the terms of the trust. A pour over will is generally used to avoid distribution of estate assets through the probate process which can be lengthy. These wills are generally valid as along as the trust previously existed or was executed contemporaneously with the will.

Abatement

Abatement occurs when there is not enough to pay out under the will. The order in which claims are abated are: (1) property not disposed of by the will; then (2) residuary gifts; then, (3) general bequests and demonstrative gifts from general assts; then, (4) specific devises, specific bequests and demonstrative gifts from designated sources.

Misconduct By Parent Effect on Inheritance

Abusive and neglectful parents are "unfit" to inherit from their children.

Immunity of Counsel

Acting under the advise of counsel does not immunize a fiduciary from the consequences of their defaults. Relying on advise is a determining factor, but it does not necessarily immunize.

Augmented Estate Hypos

Add these after you ask Malagrino.

Surviving Spouse UPC Examples

Allows the spouse to take the entire estate or gives the spouse the priority up to a specific dollar amount, plus a fractional share, in no event less than one half the balance. - Spouse; w/ No Descendant; No Parents- All to Spouse. - Spouse: w/ Descendants- All to Spouse if all the descendants are spouse and spouse's only kids. -- $225k + 1/2 to Spouse if the descendants are spouse's, but spouse has other children outside partnership; Remainder to Descendants. -- $150k + 1/2 to Spouse if one ore more of the descendants are not the spouse's; Remainder to descendants. - Spouse; w/ No Descendants, but Parents- $300k + 3/4 to Spouse; with the rest to Parents - No Spouse; w/ Descendants- All to D (per capita at each generation)

Animals as Beneficiaries

Animals are not proper definite beneficiaries unless they are statutorily allowed OR the trustee has agreed to an honorary trust in which they would enforce a trust because of ethical reasons.

Suppose T's lawyer takes T's will to T's home, where T signs the will and the lawyer attests as a witness. The lawyer returns to her office with the will and has her secretary call T on the phone. By telephone, T requests the secretary to witness his will; the secretary then signs as an attesting witness. Can the will be probated? Suppose instead T requests the secretary to witness and the secretary does so with T watching via computer or smartphone video call. Can the will be probated?

Answer: Can it be probated? No. The witnesses have to witness each other sign. Additionally, telephonic presence is not sufficient in most jx. Computer or Smartphone? It may be allowed under conscious presence and you can see what is being done. Line of sight typically requires physical presence.

Suppose two witnesses signed T's will in T's dining room while T was in her bedroom. T knew that the witnesses were signing and could have walked into the dining room to see them sign. Does this meet the line of sight test? Does this meet the conscious presence test? Follow-up Q: T and W1 sign a week earlier than W2. T and W1 acknowledge their signature on the will. What results?

Answer: Line of Sight? No. Conscious Presence? Yes. Answer: Witnesses are not able to acknowledge their signature. A witness must sign in the presence of the other witness. The testator may be able to acknowledge. Why is this? To make sure the witnesses are not compromising the Will.

T's house burns down. T's will was among the items destroyed by the fire. When T tells his lawyer, T also shares: "That's all right; I wanted to revoke that Will anyhow." How should the lawyer advise T?

Answer: (Has the will been revoked?) No. The will was not revoked because of the intent and action were not contemporaneous. It is likely that the will was not revoked.

Suppose that Husband and Wife have been lawfully married for one year and have no children together. Husband dies, survived by Wife and the Husband's two children from a previous marriage. Husband's probate estate (after satisfaction) is valued at about $400,000.00. How is the Husband's devisable estate likely distributed?

Answer: 2-102(4) W= 275000 H's Children= 125K C1= 62500 C2= 62500

By his previous will, T bequeaths his Picasso to A and his residuary estate to B. By a later instrument executed with proper formalities, T bequeaths his same Picasso to C, his Rothko to D, and $50,000 to E. This second instrument contains no revocatory clause. How should the probate court distribute the assets in T's estate?

Answer: C gets the picaso. Rothko will go to D. E will get 50 K. B will get the residue. A would get nothing. Doctrine of Inconsistency.

When G executed her will, she had two living children, A and B. In her will, G bequeathed $7500 to each child, and the residue to her favorite charity. After G executed her will, she had another child C. When G died, her spouse had predeceased her, and her estate was worth about $300,000. How is G's estate distributed?

Answer: C is a pretermitted child because of the time/will. If the pretermitted child was not provided for then they will receive their intestate share UNLESS there is an exception. There is an exception here. The children's total amount bequest was 15k. SO, you would split the 15k between the 3 (5k).

What if in her will G had instead bequeathed $10,000 to child A, and $5000 to child B, and the residue to her favorite charity. After G executed her will, she had another child C. When G died, her spouse had predeceased her, and her estate was worth about $300,000. How is G's estate distributed then? Same facts as #4. above, except that G made it clear in the will that A is receiving twice as much as B because: "A has special medical needs, and B is otherwise amply provided." How is G's estate distributed then?

Answer: C is pretermitted. The intestate share would unfair in this situation so we would do it in a form of pro-rata. C should receive a 1/3. A would get 6667, B 3333, C 5000. C is entitled to a 3rd but A gets double what B received. Answer: You still want to achieve that A gets twice as much as B. So 3750 B/C and 7500 A. Unlike 4, where there is no reason to treat the children different.

The Decedent left a will leaving her entire estate to her daughter or, if the daughter predeceased her, to charity. The daughter disclaims, causing the estate to pass to charity. Does the disclaimer operate to give the decedent's sibling, who would take the estate if the will were invalid, standing to contest the will?

Answer: If someone is attempting to stand to contest a will that was disclaimed, then they would be able to contest the will because, for the purposes of standing, a disclaimer does not actually treat someone as predeceased.

T's will bequeaths $25,000 to X, and devises his residuary estate to Y. X signs the will as an attesting witness. What result?

Answer: Interested Witness. We would need add'l information. Purge Statute. Family Relationship. Time of Events. Other witnesses. Supernumerary? Heir?

T writes "Void and Cancelled" and signs his full name in the footer at the bottom of each page of a three-page Will, the handwritten words and signature neither intersect, nor come into contact with any portion of the Will. Has T revoked this Will?

Answer: No. Why? To make it clear they would need to strike or make it clear that it was void. If it was in a jx that allows for holographic wills, then it might have been enough. ** It would be different if he would have wrote strike or cancel by the signature.

T executes Will #1, which devises T's entire estate to a trust for the benefit of X. Then, T executes Will #2, which, after revoking all earlier wills, devises his estate outright to X (rather than in trust). T has never destroyed Will #1. Thereafter, T reads over the two wills, says to his attorney, "You know, I have decided to leave my estate in trust for the benefit of X after all," and tears up Will #2. How will T's probate estate be distributed? What if they were talking on the phone?

Answer: Pursuant to Will 1 because of T's intent. It would still be valid because the T is tearing up the Will. If the attorney tore it up not in the presence of T, then it might not be valid.

Suppose a parent takes out a life insurance policy on her own life and assigns it to her child as an advancement when the policy is worth 20k. At the parent's death, four years later, the child receives proceeds of 1,000,000. At what value should the advancement be taken into account? Follow-Up: Does it matter whether the insurance premiums are paid by the parent or the child?

Answer: The "step-up" value. It would be valued at the amount when the heir came into possession, so $1,000,000. (UPC Advancement Hypo) F/U Answer: It does not matter. It would still be the step-up value.

T executed a Will and later executed three separate codicils to the Will. Thereafter, T revoked the third and then the second codicil; then T died. Which testamentary instruments are operative on T's probate estate?

Answer: The Will and the 1st codicil. Revoking a codicil does not effect anything else. Revoking a Will would effect the parasitic codicils to it, but not vice versa.

T's Will provides: "I devise Blackacre to X for life, then to Y. The rest and residue of my estate to Z." If T attempts to strike the words "for life, then to Y," thus intending to devise a fee simple absolute to X, and not provide for Y. How will the probate court construct the Will? What would happen if T just crossed out "then to Y"? Same facts as above, in question #3., except, T attempts to strike the entire devise of Blackacre, and no longer provide for X or Y. How will the probate court construct the Will?

Answer: This change had no effect on the Will. Why? You cannot give someone more than they had under a will by just crossing off, it would require will formalities. Here, it would give more to X (life estate to fee simple) so the crossing out would have no effect. Then it would possibly have been allowed because it is not giving more to X. Answer: This would be the same as above because Z would get more than what they would get originally. Z was not supposed to received any. BUT Jx are split on if "in the residue" should meet the will formalities so it might not if that is the case.

Suppose a banker draws a will for a customer. The customer is seated at the banker's desk within the bank building in the open area, populated by other customers, bankers, and tellers. The customer signs the will at the banker's desk. The banker signs as a witness, and takes the Will to the teller to sign. The teller, signs as a witness and waves to the customer, who waves back. Has the teller signed as a witness in the presence of the testator?

Answer: This will not meet line of sight but it might meet conscious presence but it would be a close call. We do not necessarily know what the banker did with the teller.

Suppose Husband and Wife have been lawfully married for 20 years and have two children together. Husband dies, survived by Wife, their two children, and the Wife's two children from the Wife's previous marriage, which the Husband had lawfully adopted several years before he died. Husband's probate estate (after satisfaction) is valued at about $400,000.00. How is the Husband's devisable estate likely distributed?

Answer: Wife gets it all. 2-102(1)(b) Adopted children are lawful descendents.

Suppose Husband and Wife have been lawfully married for 20 years and have no children together. Husband dies, survived by Wife and the Husband's brother. Husband's probate estate (after satisfaction) is valued at about $400,000.00. How is the Husband's devisable estate likely distributed?

Answer: Wife will get everything.

Suppose Husband and Wife have been lawfully married for one year and have no children together. Husband dies, survived by Wife and the Husband's brother. Husband's probate estate (after satisfaction) is valued at about $400,000.00. How is the Husband's devisable estate likely distributed?

Answer: Wife will get everything.

G's will devised the residue of his estate "to my two children, A and B, in equal shares." A and B are children of G's prior marriage. After the execution of the will, G marries X, and B predeceases G. (B has no descendants.) G is survived by child A and widow X. How is G's estate distributed? What if G and X were married prior to the execution of G's will, how is G's estate distributed then?

Answer: X would get their intestate share because they were pretermitted spouse so she would qualify for a pretermitted heir. (150+ 1/2). A would receive the residue. Answer: X is not pretermitted. Therefore, she would likely get her elective share (generally 1/3 and residue to A). If in a community property jx, then she would get 1/2 and the rest to A.

T executes a Will that leaves all of her property to X. Later, T executes a second Will that leaves all of her property to Y, but the Will does not contain an express clause revoking the first Will. When T dies, who is entitled to T's estate and why?

Answer: Y. Why? Y would get everything because the doctrine of inconsistency. If you have two wills that are inconsistent, then the subsequent will terms will govern.

The Trust Res (property)

Anything that can be gifted can be given in trust. But, it must be property.

Types of Conduct that would disqualify an individual from inheritance:

Breach of Parental Obligations- Under the UPC, inheritance through a deceased child by a natural parent is permitted only if that parent has treated the child as his/hers, and has not refused to support the child. Breach of Marital Obligations- The UPC does not define precisely who qualifies as a surviving spouse. Though, it expressly excludes an person from qualifying as a surviving spouse in a few situations: Divorce, Annulment, and Decree of Separation. In some jurisdictions, outside the UPC, may bar a spouse from inheritance if they abandoned the decedent. Homicide Elder Abuse Mercy Killing

United States v. O'Shaughnessy

Can the government attach to a beneficiary's assets that were in a discretionary trust? Not in this case because the legal owner of the assets was actually the trustee and not the taxpayer.

Advancement at CL and Modern Law

Common Law: If there was a gift at CL, then it is considered an advancement. Modern Law: Today, we would need clear and convincing evidence that would need to be proven by the heirs not receiving the advancement. If it cannot be proven, then it is considered a inter vivos gift. BUT, some courts hold that substantial transfers in life might be treated as advancements.

Uniform Parentage Act (2017- Non-Marital Children)-

Common ways a man is presumed to be the father of the child: o A man is presumed to be the child's father if: § He is married to the child's mother and the child is born during the marriage or within 300 days of the marriage's termination. § He resides in the same household as the child for the first two years of the child's life and holds the child out as his own. § There is voluntary acknowledgement signed by both parents and recorded. § Genetic testing shows that he is the father.

Process of Undue Influence:

Contestant raises and inferenceà Shows supporting evidence of a confidential relationship w/ suspicious circumstanceà the burden shift to the proponent who has a chance to rebut.

Starting Point for Interpretation of Wills

Courts have no power to reform wills. Mistakes of the testator cannot be corrected. Omission cannot be supplied. Language cannot be modified to meet unforeseen changes in conditions. The only means for ascertaining the intent of the testator are the words written and the acts done by him.

Modification and Reformation of Trust by Court

Courts tend to not want to modify trusts unless it is strictly necessary, but even then it must not contradict the settlor's intent.

Ancillary Administration

Decedent, who was domiciled in one state but who owned property situated in other states. Separate administrations are sometimes necessary in the states of situs as well as in the domiciliary state. Duplicate administrations means inconvenience, delay, and additional expense. The state of domicile is recognized as the administration-in-chief, the states where property is located being just ancillary to it.

UPC Take on Divorce & Wills (Changed Circumstances)

Divorce revokes all provisions for the testator's former spouse in a Will executed before the divorce. Divorce does not make the entire instrument invalid, only the provisions related to the divorced spouse. There is a presumption that this would be the spouses intent and also stretches to the spouse's family that is left in the will.

Double Inheritance Under the UPC

Double inheritance is a situation when a child's parent dies and they are adopted by a relative. Then, the relative who adopted the child dies. The UPC says states that there would be no dual inheritance. A person who is related to an intestate through tow lines of relationship take only a single intestate share "based on the relationship which would entitle him to the larger share."

Highest Price Possible & Fiduciaries

Fiduciaries are not required to obtain the "highest price possible" for estate assets; instead, executors must act prudently when disposing of the estate.

Court Approval for Fiduciaries

Fiduciaries need not act at their peril; instead, they are entitled to the instruction of a court as protection. (They should "cover their A**")

The Express Trust

Fiduciary relationship with respect to property, arising as a result of: - (1) a manifestation of an intention to create that relationship; and, - (2) subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.

- Suppose T executed a will on his estate of $800,000. The will stated that Charity B was to receive $300,000, Charity C was to receive $100,000, and the residue would go to his son, A (Which should have been $400,000. At the time of death T's estate had fallen to $300,000. How would this be handled under the doctrine of Abatement?

First, you would need to look to see if everything was accounted for under the will. Because it was all accounted for, A would get nothing because there is no residue. Then, the remaining $300,000 would be prorated between B (225,000) and C (75,000). This is an issue because T's intent was obviously to supply for A. The UPC would focus on the intent and say that A would be entitled to half (T's probable intent) and the remainder would be prorated between B and C.

Effective Disinheritance

For disinheritance to be effective, then a child or issue, generally, must be listed in the will. This can be shown through a nominal gift that provides the effect of disinheritance ($1.00 to X).

Fraud

Fraud requires proof that a person has (1) made a false representation (2) knowing it to be false (3) with the intention that the testator rely on the misrepresentation (4) which in fact the testator does (5) and leading to the conclusion the that will does not reflect the testator's true intent. - 2 Types of Fraud: o Fraud in the Execution- Wrongdoer intentionally misrepresents the character or content of the instrument signed by the Testator, which does not in fact carry out the testator's intent. o Fraud in the Inducement- Wrongdoer intentionally misrepresents some factor that causes the testator to execute or revoke a will, to refrain from executing or revoking a will, or to include particular provisions in the wrongdoer's favor.

Gifts Causa Mortis

GCM are gifts given during life in contemplation of death for the purpose of making a final disposition of subject matter if death occurs. Gifts Causa Mortis are limited to personal property. The gift automatically fails if the donor recovers from the apprehended peril and the donor must intend their result. Additionally, the gift fails if the donee predeceases the donor.

Half-Bloods

Generally, in most jurisdictions, half-bloods take the same share as whole bloods. (In some states they only take half).

Requirement of Present Transfer in Gifts

Gifts must involve some present transfer. If there is no present transfer, then it is a gift promise which is handled by contracts.

What results if a trustee is given the instruction to distribute a trust for the "benefit of the settlor's friends"?

Historically, this devise would fail because "friends" is not a truly measurable class. The class must be measurable.

Non-Marital Children at Common Law

If a child is born to a married woman, the woman's husband is presumed to be the child's father. This can be rebutted by evidence of sterility, impotence, or being physical absent during time of conception.

Condition Fulfilled During Lifetime

If a condition is fulfilled during testator's lifetime, then dead hand control is not an issue because the condition has no control.

Ancestors, Collaterals, And Others Under UPC

If a decedent leaves no surviving spouse or descendants, modern intestacy statutes generally provide for inheritance by ancestors and collaterals, with nearer relatives taking priority over more remote relatives. - No Spouse; No Descendants; Parents- All to Parents - No Spouse; No Descendants; No Parents; Brother and/or Sister- To B/S (per capita at each generation) - No S; No D; No P; No B/S; Grandparent or Grandparent Descendants- 1/2 to paternal and 1/2 to maternal grandparents/descendants or ALL to one if no survivors on the other side. (per capita at each generation)

Void Devise and Lapse

If a devisee is already dead or otherwise an ineligible take, the devise is void and the common law rule of lapse applies.

UPC Anti-Lapse

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of the execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survives the testator by 120 hours takes in place of the deceased devisee. **The UPC antilapse statute presumes that a bequest "to A if A survives me" should be interpreted to mean "to A, or if A does not survive me then to A's issue who survive me" UNLESS there is an alternative devise indicatiing an intent to override the anti-lapse statute.

Irrevocability of Gifts

If a gift is validly given, then it is irrevocable.

Trustee With Absolute Power of Beneficiaries

If a person designated as trustee has absolute, unfettered discretion to select beneficiaries and objects, beyond the control of a court in equity, the arrangement is not a trust at all but rather some form of beneficial ownership or nonfiduciary power of appointment.

Protection of Spouse Pretermitted

If a spouse is left out of a will, then they would receive their intestate share because they qualify as a pretermitted heir. The spouse would not want to pursue an elective share because it would probably be less than the intestate share.

Distribution

If after full administration a balance remains, the payment of the balance to those entitled to it is here called distribution.

Termination by Contest

If all of the beneficiaries of a trust consent (and none of them is under incapacity), they can compel the termination of the trust; However, if continuing the trust is necessary to carry out the material purpose of the trust, then the beneficiaries cannot compel its termination. - Charitable Beneficiary Representation- the interests of any charitable beneficiaries are represented by a state's Attorney General.

Widow's Election in Community Property

If one spouse purports to dispose of both halves of the community property by will, the attempted disposition is ordinarily enforceable only as to the decedent's half of the property. (meaning the widow wills till own their half and can sue)

Termination Pursuant to the Trust Instrument

If some means of revocation are specified in the trust instrument, then those means are presumed to be exclusive.

Illusory Transfer Doctrine- (Newman v. Dore)

If the decedent's inter vivos transfer enables him to keep the benefit and control of the transferred property despite the transfer, the transfer is illusory and subject to forced share. This generally comes into question if there was a defendant trying to circumvent the protections made by law, such as inheritance.

Inheritance of Father from Non-Marital Children Caveat

If the father does not hold the child out as his own, then he cannot inherit from the child.

Doctrine of Equitable Adoption

If the foster parent dies intestate, the child may be able to participate in the estate under the doctrine of equitable adoption. In general, an equitable adoption requires clear and convincing evidence that: (1) an agreement between the natural parents and foster parent for the adoption of the child, (2) performance or conduct on the part of the natural parents to give up custody of the child, (3) Performance on the part of the child in living in the foster parent's home AND (4) partial performance by the foster parent in treating the child as an adopted child. - Main issue in this doctrine is the natural parent's opposition.

Conditional Wills

If the operation of a will appears to be condition on a particular event that does not actually occur, then the will probably not be valid and will not be given effect. (Ex. taking a dangerous trip and you set up a will for if you die on the trip. If the will is not a lasting will and is only meant to cover you while on your trip, then it is not valid.)

Will Formalities

If the statutory requirements of the Will are not met, the Will is void (not merely voidable), and cannot be admitted to probate even if there is no objection. - General Statutory Formalities and Wills o Signed and witnessed by two attesting witnesses. - UPC Formalities: o Writing, Signed, Attestation and signature by two witnesses OR Notarization.

Suppose that H, while married to W, convey real property to his child A from a previous marriage. On its face the deed is absolute and irrevocable; H retains no legally protected interest in the property. Nevertheless, with A's consent, H continues to occupy and manage the property, collect rent and pay property taxes until his death more than 10 year late. W claim that the property is subject to her elective share. What result?

Illusory Transfer Hypo Answer: This conveyance would be illusory because H is taking the entire portion of the land and transferring to A but still treating the land as his own. Thus, H is trying to circumvent the inheritance system which effects W's inheritance. However, this may be different if H gave the land to A before his marriage to W.

Disclaimer in Intestacy

In general, a disclaimer "relates back" to the time of the gift, and causes the gift to either (1) fail entirely or (2) to take effect as if the disclaimant had died immediately before the time of the gift.

Conditions of Dead Hand Control

In general, courts uphold testamentary conditions and limitations that are designed to induce a beneficiary to engage in or refrain from specified behavior (go to college, get married), Generally we uphold these if it creates stability.

Born or Adopted After Execution of the Will

In most states, the pretermitted heir statute operates so that a child born or adopted after the Will was executed take an intestate share of the decedent's estate (i.e. the share he would have take had the decedent died intestate), unless it fits on of the common exception.

Disclaimer in Will

In the case of a testamentary gift, the disclaimed interest is treated as passing directly from the decedent to the ultimate recipient without ever coming into the disclaimant's hands. It is as if the will never provided the gift.

The Fiduciary Duty of Loyalty

It is a violation of the duty of loyalty if the trustee enters into a transaction in connection with the administration of the trust for the purpose of acquiring profit for himself (self-dealing).The trustee owes a general duty of undivided loyalty (no conflict of interests) to the trust beneficiaries and this should be measured by the higher standard of undivided loyalty rather than the standard of good faith. o No Further Inquiry Rule- there is not a defense that a trustee acted in good faith if there is a conflict of interest with the trust instrument.

How much time can pass between the death of the testator and probate?

It is determined by statute.

What if T signs a typewritten instrument naming A as the sole beneficiary of her estate, but the instrument is unwitnessed and cannot be admitted to probate?

Maybe, the court would have to show that this was a similar to a separate written instrument which could lead to a constructive trust or written performance.

Laughing Heirs Contest

Modern jurisdictions generally have a limit to the heirs before an estate escheat. Though, we do not like escheat and try to prevent it. (Generally the Grandparent's parentela)

Exoneration of Liens with Wills

Modern law stats that the lien would follow the property. Common law stats the lien would be paid out of the residue estate and the property would be free of the lien.

Discretion and Good Faith

Nevertheless the breadth of discretion granted to a trustee may be "absolute," the trustee is still expected us use that discretion in good faith and in accordance with the terms of the trust.

Laughing Heirs in the UPC

No S; No D; No P; No B/S; No G or GD, then: - Step children OR - Escheat to state. Therefore no "laughing heirs" -- NO GREAT GRANDPARENTS

Notice to Interested Parties

Notice of Will proceeding must be given to interested persons (legatees, devisees, intestate successors, trustees, guardians, the state attorney general for charitable trusts).

Death of Settlor and Revocation

Once the settlor dies their power of revocation can no longer be exercised unless the jurisdiction allows wills to challenge a trust via an estate plan. Most jurisdictions conclude a validly executed Will may sufficiently manifest a settlor's intent to revoke a revocable trust (if the trust instrument does not otherwise exclude it.)

Standing to Contest the Will

Only those within the nearest degree of kinship have standing to contest the will. Burden is on the contester to prove relationship with clear and convincing evidence. (In Re Wendel's Will)

Systems of Representation Among Descendants

Per Stirpes System- (Vertical Equality) the estate is divided into equal shares, with one share allocated to each living child of the decedent and one to each predeceased child who has descendants living at the decedent's death. Each predeceased child's share is then redivided among the child's descendants in the same manner until the entire share has been allocated to living takers. Per Capita System w/ Representation (aka Modern Per Stirpes)- the initial division into equal shares occurs at the nearest generation of descendants which has a member living at the decedent's death. On share is allocated to each living member of that generation, and one to each predeceased member who has living descendants. Each predeceased member's share is then distributed among his or her living descendants according to the traditional (per stirpes) form of representation. Per Capita at Each Generation- 2-106 (revised 1990)- (Horizontal Equality) This follows the same rules as per capita, however, instead of allocating the share of each deceased member among his or her living descendants, it combines the shares of all deceased members and allocated them among their respective living descendants "in the same manner" (equal shares in the next generation which has a living member; equally near, equally dear).

Posthumously Conceived

Posthumously Conceived- Under the UPC, three requirements must be met for a posthumously conceived child to be able to inherit from their decedent parent: o There must be a demonstration of genetic relationship between the child and decedent. o There must be proof that the decedent affirmatively consented to the posthumous conception and support. o The child will be treated as in gestation at the individual's death if the child is in utero no later than 36 months after the individual's death; or, born not later than 45 months after the individual's death.

Suppose a testator executes a will leaving a diamond broach to A, $20,000 to B, and the rest of her estate to C. Subsequently, the testator executes a new will, with no express revocatory clause, which leave the brooch to A' child, $10,000 to B, and the rest of the estate to C. Obviously, the replacement of the brooch to A's child removes the brooch to A. Does the subsequent will supplement or replace B's original bequest?

Probably Supplements, meaning B would receive both 10k and 20k because the will disposes of the entire estate.

Interested Witnesses (Purging Statutes)

Purging Statues- these are legislative reforms designed to control or limit the damage to a Will by an interested witness (i.e. designed to prevent fraud or duress) They help the Will not fail. They remove what the witness would have gotten and saves the will. o UPC and Purging Statutes- the UPC does not have a purging statute. A witness is considered competent as long as they have the capacity to acknowledge and contest. The witness is able to rebut any presumption of undue influence, fraud, or duress. o Majority View of Purging Statutes: Most jurisdictions purge only the excess benefit, meaning that the interested witness would receive the intestate share and anything over that amount is purged. § Supernumeracy- The exception to the majority, supernumeracy removes an excess witness if there are too many witnesses. o Purging Heirlooms- we do not purge heirlooms because they are considered personal. We only purge items that are of a monetary benefit.

Political Accountability And Dead Hand Control

Reconciling the rights of successive generation raises fundamental question of public finance and constitutional legitimacy, and political accountability and fiscal responsibility. We want to keep the next generation a productive member of society. Meaning, we do not want them to "ride the coat tails" of the previous generation because it causes class strain.

Remedies if Valid Will Contract is Present

Remedies if Valid Will Contract is Present: The current possessor of the property would hold the item in constructive trust for the beneficiary via the contract because contract law is not held within probate court, but civil.

In August of 1955 T executes a will. In May of 1959 T executes a will that revokes the 1955 will. In June of 1960 T tears up and discards the 1959 will. T dies. Is the 1955 will revived?

Revival Hypo. o If the 1959 instrument wholly revoked the 1955 will, then no unless there was c&c evidence that it was T's intent to revive. If the 1959 instrument partly revoke the 1955 will, then yes unless there is c&c evidence that T's intent was to revoke the 1955 will in whole.

In 2011, T executes a Will giving all of her property to A. In 2016, T executes an instrument that gives her diamond ring to B and her car to C. What happens if T destroys the 2016 instrument? What happens if T destroys the 2011 Will?

Revocation Hypo. o 2016- A would take everything revoking the codicil. o 2011- The estate would fall to intestacy unless, the 2016 instrument can stand alone as a will.

Hodel v. Irving (Indian Land Being Taken)

Rule: The government cannot take land unless they are compliant with the Constitution and justly compensate the parties being stripped of their rights. Additionally, the right to devise property to another is held in high regard and rarely gets overturned.

T's son S predeceases T leaving a widow W and minor child C from a prior marriage. T was very close to W, and relied on W's advice and assistance in business matters. T died leaving her entire estate to W with the oral understanding that W would see to C's support and education. T's heirs contest the will on grounds of fraud and undue influence. W insists that she is prepared to carry out T's intent, but has had no oppurtunity to show her good or bad faith. What result?

Secret Trust Hypo: W would be able to present extrinsic evidence to prove that she was in a secret trust with T. Here, if proven then C would be able to enforce it because it was for his benefit. There would need to be enough evidence by clear & convincing standards to the Secret Trust.

Secret Trust and Semi-Secret Trust

Secret Trust- a secret trust arises when a testator leaves property to a legatee in reliance on the latter's promise to hold the property for the benefit of a third person. Often, a secret trust will be opposed due to the appearance of undue influence or fraud because the distributions in the will can be suspicious. - How is a Secret Trust Valid? o Semi-Secret Trust- if the will only says "in trust," then it would be an invalid trust. The words "in trust" are not sufficient unless there is further explanation of the trust in will. o Secret Trust- Secret trusts need to be proven with extrinsic evidence ONLY. If there is a mention of the trust in the will then the trust type defaults to semi-secret standards.

Permission of the Community

Selling Community Property for adequate consideration does not require permission from the other spouse, unless it is real property.

Suppose that a husband and wife execute a joint and contractual will which leaves all their property to the survivor and leave the property remaining at the survivor's death to A. If A is still living at the death of the first spouse, but dies while the surviving spouse is still alive, does A's interest under the joint will lapse?

Several courts have held that there is no lapse, on the theory that A's interest cam into existence at the first spouse's death and is not subject to any further survival requirements. Other, have held that the gift to A lapses unless it is preserved for other beneficiaries by an anti-lapse statute.

Constitutional Question of the UPA

Should the paternity test be established during the father's lifetime? Some jurisdictions say that it should and the father has to be alive so he can have his due process.

Effective Disinheritance Doctrine

Some jurisdictions refuse to follow Newman v. Dore (illusory transfer doctrine) and hold that a surviving spouse cannot reach any property transferred by the decedent during life.

How long can probate last?

Statutes of a few states set time limits ranging 3-20 years.

Adoption Children Inheritance

Step Parent Rule: Adopted children cannot inherit from their natural parents unless the adopted parent is married to one of the natural parents. An adoption "cuts off" inheritance from an intestate succession.

Step Parents and Inheritance

Step parents generally can inherit, but the line stops with the step parent and does not continue with their descendants.

Adoption of Adults (Stranger to Adoption Rules)

Stranger to Adoption Rules: under the UPC, nontraditional adoptions are allowed but only to the extent in which an adult can inherit through the parent if the adoptive parent functioned as a parent of the child before the child reached 18 years of age, the adoptive parent was the adoptee's stepparent or foster parents, OR the adoption took place before the adoptee turned 18.

Remedy for Testamentary Capacity

Strike all or part of the Will based on the delusion and give the remainder of the estate by intestate succession.

Surviving Descendants Presumption

Surviving descendant presumptively includes all biological descendants that can be proven with clear and convincing evidence.

Execution of WIll Age

Testator must be of a certain age to execute a will, generally 18.

Predeceased Advancement

The child's advancement is generally charged against the intestate share of his issue (by representation) if the advanced child passes before the decedent, in the absence of a statutory provision to the contrary. There is a presumption that the issue indirectly benefited from the advancement.

Probate Court

The court who has jurisdiction over the administration of the decedent's estates.

Advancement and Partial Intestacy

The doctrine of advancement has no application if the decedent leaves a will that disposes of the entire estate OR the decedent leaves a will of partial intestacy (where part, but not all of the estate, is disposed of.) **This is because the decedent had the opportunity to "equalize" any issues.

Community Property System

The earning of each spouse during marriage should be owned equally in undivided shares by both spouses. - Key Features of Community Property: o All property acquired during marriage, other than gift, bequest, devise, or descent, qualifies as community property in which both spouses have equal, concurrent interests. (certain property does not necessarily become part of the community such as: gifts, bequests, devise, or descent.) o Property owned by either spouse before the marriage, or acquired during marriage by gift, bequest, devise, or descent, is separate property, which belongs exclusively to the spouse who required it. o Each spouse has present, existing and equal interest in community property, which arises at the moment of acquisition and cannot be defeated by the unilateral act of the other spouse. o When one spouse dies, one half of the community property passes by will or intestacy to the decedent's successors; the other half belongs absolutely to the surviving spouse. (Half to Spouse. Half to whoever the decedent devised in will)

Homestead in Statutory Allowances

The homestead is the place where the family lived. This guarantees the continuance of a home for the family of a debtor by exempting it from the claims of creditors.

Transmute

The husband and wife can freely transmute property in community property jurisdictions meaning they can agree to own some sort of property separately by written agreement.

Effects of Intent on Illusory Trust Doctrine

The illusory transfer doctrine may not apply if the transferor's intent was obvious that they were not trying to circumvent the law. In Davis v. KB&T, the decedent set up a trust to support his incapacitate wife in his death, therefore, his conveyance was not illusory.

Settlor's Right to Revoke Trust

The modern majority states that unless the trust expressly provides that it is irrevocable, the settlor may revoke or amend the trust. If the trust is silent, then it is presumed that the settlor retained the right.

Integration of Will

The process of embodying the testator's Will in one or more writings, which are physically present at the time of execution and are intended to be included in the will.

Majority Rule re Business Association/Organization-

The state in which a corporation has been organized is the situs of its share of stock, for purposes of administration, rather than the state of the decedent's domicile, and particularly so if the corporation also conducts its business in the state where it has been organized.

Ambiguity and Mistake in a Will

The will must be a complete statement of the terms. Extrinsic evidence is inadmissible to contradict the "plain meaning" of the Will, or to supplement with omitted terms. For a court to be able to challenge any will mistake there must be ambiguity.

UPC and Advancement

There is only an advancement if there is evidence in writing by the decedent or acknowledgement in writing by the heir. The value of the advancement is valued at the time that the heir came into possession.

Personal Usage Exception to the Plain Meaning Rule-

This is the exception to ambiguity and mistake where a particular word or expression in the will reflects the testator's idiosyncratic use of language.

How to Calculate Advancement

To compute the child's share, bring the advancement into the hotchpot, then reduce by the amount the parent previously advanced to that child. BUT If the advancement was more than the intestate share, then we would not add it to the hotchpot, but divide the share among the remaining heirs and not give a share to the heir who was advanced.

Separate Property System

Traditionally: Dower and Curtesy Modern: Traditional Elective Trust

Duty to Collect and Protect Trust Property

Trustee must collect and protect trust property without unnecessary delay.

Duty to Earmark Trust Property-

Trustee must designate property as trust property rather than the trustee's owns. (good record keeping).

Duty to Bring and Defend Claims

Trustee must take reasonable steps to enforce and defend claim relating to the trust.

Difference between Fraud and Undue Influence

U/I is generally taking advantage of someone of diminished intelligence while fraud can possibly take advantage of the intelligent.

UPC Failure to Provide for Children Believed to be Dead

Under the UPC and by statute in several non-UPC states, if a testator fails to provide in her will for a living child solely because she was mistakenly believed the child to be dead, then the child shares in the estate as if her were an omitted child.

Simultaneous Death

Uniform Simultaneous Death Act- the act provides generally that if there is "no sufficient evidence of survivorship, then the beneficiary is deemed to have predeceased the donor. (Presumption of Non-Survival) Occurrence of Death Under USDA- when an individual has sustained either "(1) irreversible cessation of circulatory and respiratory functions, or (2)irreversible cessation of all function of the entire brain, including the brain stem." This means one might be dead if they are being artificially kept alive. UPC 2-104- an individual who fails to survive the decedent by 120 hours (5 Days is deemed to have predeceased the decedent" for the purposes of intestate succession, and the presumption applies unless it is established by "clear and convincing evidence" that the 120 hour survival requirement was met.

Suppose Husband and Wife have been lawfully married for 20 years and have two children together. Husband dies, survived by Wife, their two children together, and two children from the Husband's previous marriage. Husband's probate estate (after satisfaction) is valued at about $400,000.00.

W 275K H's children- 4, 125/4=31.25

Suppose Husband and Wife have been lawfully married for 20 years and have no children together. Husband dies, survived by Wife and the Husband's two children - from a previous marriage. Husband's probate estate (after satisfaction) is valued at about $400,000.00. How is the Husband's devisable estate likely distributed?

W= 275000 H's Children= 125K C1= 62500 C2= 62500

The Duty with Respect to Delegation of Fiduciary Obligations

We do not want the trustee to delegate unless it is for the benefit of the trust. Beneficiary would not be able to bring a case against the trustee for delegating if they used reasonable care, skill and caution.

Disclaimer and Representation

We treat the disclaimant as if they predeceased the gift unless it would unfairly control what other heirs would receive.

Presumption of Acceptance

When a gift is of value of the done the law will presume an acceptance of his part, but it is rebuttable.

Unlawful Restrictions and Dead Hand Control

Where a bequest is conditioned upon the commission of an illegal act, such as a racial restriction, or an act which is legally impossible to fulfill, then the condition is invalid on the ground of public policy, and under these circumstances, the condition will not be enforced and will be excised.

Starting Point for Attested Wills

Wills are considered on face value, meaning they are presumed to be valid unless contested. The burden in on the contestant to show failure of will formalities.

T has died with a will and has given all of his real property and residue to Y. Additionally, T has another heir, X. A dies and devises Whiteacre to T. T is already dead. Who gets Whiteacre?

X. Rule: You do not have the power to devise what you do not own. There are legal presumptions where property should go. Here, the legal presumption is that they heir should inherit the property. Because T was not able to devise the property prior to death, X would inherit the property because of the legal presumption.

Should creditors be able to reach a self-settled trust if the settlor retains the right to amend or revoke?

Yes. The settlor's creditors may, following the death of the settlor, reach in satisfaction of the settlor's debt to them, to the extent not satisfied by the settlor's estate, those assets owned by the trust over which the settlor had such control at the time of his death as would have been the settlor to us the trust assets for his own benefit.

Revocable Trust

a "will substitute" in which a settlor transfers property to a trustee who agrees to hold it in trust for the benefit of one or more beneficiaries, subject to the settler's reserved right to revoke or amend the trust. This is outside the probate system, but given the same effect as a will.

Totten Trusts

a Totten Trust is a deposit in a savings bank in the depositor's name "as trustee" for a named beneficiary and is freely revocable by the depositor on presentation of the pass book at any time. Under Newman a Totten Trust would be subject to a surviving spouse's elective share because the trustee's incredible control they hold over the trust.

Attestation Clause

a clause that states the formalities in the jurisdiction and verifies the formalities have been met. This clause usually appear immediately below the signature line for the testator and above the witness signature. The intent of the attestation clause is to place the witnesses on notice of the document they are signing.

Finality of Probate Decrees

a court order, following notice to interested parties and a hearing, is a final judgment subject only to appeal. Finality does not attach to the action of a personal representative that does not seek the direction of a court. However, FRAUD can set aside a court decision if it can be proven.

Disclaimer and Creditor's Rights

a creditor is not able to attach to disclaimed property unless the disclaimant is in bankruptcy or the government is the creditor.

Disclaimer

a disclaimer, or renunciation, is an affirmative refusal to accept a gratuitous transfer of an interest in property. Presumption of Non-disclaimer- we assume that someone does not want to disclaim.

Support Trust

a discretionary trust where the trustee is required to make distributions as necessary for beneficiaries needs. This discretionary trust insulates the trust property from some but not all of the beneficiary's creditors (child, spouse, and suppliers of necessities)

Testator's Signature

a full long hand signature is not necessary, a mark written with an intent to authenticate by the testator and intended as a signature is sufficient. Additionally, courts are lenient as long as there was some form of intent expressed by the testator.

Holographic Wills

a holographic will must be (1) written by the testator's hand, and (2) signed by the testator. If the signature is not at the end of the document then there can be a doubt to the finalization of the document. - Surplusage Test- (majority) If there are some parts of the will that are typed, you ignore them and read the remainder that is handwritten. If the part written by hand can still be understood without the typed portion, then the will is valid. If not, then the will is invalid. - UPC and Holographic Will- (modern trend) under the UPC only the material portion of the holographic will have to be hand written. Additionally, extrinsic evidence is allowed to show the testator's intent.

Probate

a judicial proceeding to determine the validity of one or more instruments, such as the decedent's will. More broadly, judicially supervised estate administration.

Satisfaction

a legacy (money bequest) under an existing Will may be satisfied in-whole or in-part by an inter vivos gift from the testator to the legatee, if the testator so intends. This is because there is a policy against double portions.

In Terroram Clause

a no contest clause that the majority holds as unenforceable against a party who has standing and probable cause for contesting the will or trust. ("Any party who contests this Will will be disinherited")

Exculpatory Clauses for Trustees

a provision of a trust instrument relieving a trustee of liability for breach of trust is unenforceable to the extent that it: (1) relives a trustee of bad faith or reckless indifference, OR (2) was inserted as the result of abuse by the trustee. Exculpatory clauses drafted by the trustee are invalid unless fully communicate to the settlor.

Cy Pres

a rule that allows the exact provisions of a charitable trust to be carried out as closely as possible when carrying out the exact provisions is impossible or impracticable. If the purpose cannot be carried out AND the settlor had a general charitable purpose, then the court can use Cy Pres.

UTC and Revocation

a settlor may revoke a trust: o By the methods provided in the terms of the trust; o If not methods are listed, then by a later will or codicil that refers to the trust or devises the property differently; OR o by any other method that shows a clear and convincing evidence that it was the settlor's intent.

Co-Trustee

a settlor might split the trustee between others. If they choose to do so, then the co-trustees must act in unison.

Legacy

a testamentary gift of a sum of money through will (Recipient is a legatee)

Devise

a testamentary gift of land or combined property through will (recipient is a devisee).

Bequest

a testamentary gift of personal property through will. (Recipient is a legatee)

Charitable Trusts

a trust made for charitable purposes. - Charitable Purposes under the UTC- poverty, education or religion, promotion of health, governmental or municipal purposes, or purposes beneficial to the community. - Protection of Charitable Trusts- we like the idea of charitable giving because they are valuable to the public. If courts do not protect the giftings, then it would discourage charitable donations. - Who can enforce charitable trusts? Attorney Generals, Co-trustees or successor trustees, a settlor, or a person who has a special interest.

Indefiniteness

a trust requires reasonably definite beneficiaries. Under the UTC, a trustee may decide who qualifies as a beneficiary; However, persons have the right to hold the trustee responsible and the persons must be ascertainable.

Self-Settled Trusts

a trust that someone has set up for themselves, making themselves the beneficiary. These trusts are not immune to creditors and lead to a presumption of suspicion. (Self Settled Trust Rule)

Pure (Absolute) Discretionary Trust

a trust where the trustee has absolute discretion over distributions to the beneficiary. Creditors of the beneficiary have no recourse against the beneficiary's interest in the trust.

The Fiduciary Duty of Prudence

a trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

Duty to Inform and Report-

a trustee shall keep the qualified beneficiaries of the trust reasonably informed about the administration of the trust and upon request, shall report a copy of the trust instrument and it's existence.

Will Contest

a will contest challenges whether the document offered for probate is a valid will. The contestant may raise any matter tending to show that the Will is not valid and should be denied probate. - Stand to Contest a Will- means that you have grounds to contest because you would be an affected heir. Generally, those who are beyond the second parentela are not allowed to contest because they would not receive under intestacy statute unless they are listed in the will.

Nuncupative Will

a will that is declared orally by the testator in the presence of witnesses. These wills are largely not permitted.

Totten Trust

aka: pay at death account- a depositor creates a tentative trust by depositing funds in a savings account in the name of the depositor, as trustee for the beneficiary (usually evidences by a signature card or other signed writing evidencing the same).

Discretionary Support Trust

an absolute discretionary trust for limited distribution standards.

Mutual Fund

an investment vehible managed by finance professionals who raise capital by selling shares (units) of the mutual fund, and then investing in a diverse set of securities.

By Testament

an oral or written instruction properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his will.

Arbitration Clauses-

arbitration clauses are widely accepted in jurisdictions for wills and trusts, but courts tend to not allow arbitration for strictly judicial matters.

Effect of Changes in Intestacy Statutes

changes in intestacy statutes are only operative if the decedent died after the change in law became effective. If there was a change, then it would not be effective unless the decedent died after the change. (snapshot at death).

Exculpatory Clauses

clauses meant to immunize fiduciaries from liability for breaches of their duties. These clause do not fully protect a fiduciary, but they are taken into consideration.

In Terrorem Clauses

clauses that direct that any person who contests the Will is to receive no benefits under the will or by intestacy. These can be defeated by challenging the validity of the will; not the distributions.

Lapse and Class Gifts

common law doctrine of lapse applies differently to class gifts; the members of the class are ordinarily ascertained at the testator's death, and the class gift is distributed to the persons who are in existence and meet the class description at that time. (siblings- would split between all living sibling or the deceased siblings heirs; surviving siblings- would split between only the surviving siblings, not their heirs.)

Compensation of Fiduciary

compensation for fiduciaries can be determined by statutory fee schedules or if a schedule is not listed then a reasonable compensation for their services may be given. If extraordinary steps have to be taken the fiduciary can petition for additional compensation. UPC follows reasonable compensation approach.

Appreciation Damages

damages that reflect the difference between what the fiduciary obtained for the painting and the actual value of the painting at the time of trial.

Deviation and Intent

deviation is recognized as a remedy by courts but courts can be reluctant to authorize this remedy unless it is consistent with the intent of the settlor for the benefit of the beneficiaries.

Escheat

dies without a valid testamentary instrument and does not have next of kin, then the property goes to the state. There is preference to not escheat. (Typically, they will look far for next of kin- laughing heirs.)

Trustee Power Source

fiduciaries derive their power to manage the property from the terms of the instrument, statutes, and principles which can be fairly implied from the purposes for which they are holding the property. The court cannot interfere unless there are ethical reasons to do so.

Prudent Investor Standard

fiduciaries shall exercise reasonable care, skill, and caution when investing a trust's assets.

Inter vivos gift of Real Property

for an inter vivos gift of real property, donor must deliver deed during life with the present intent to convey some interest in the land.

Resignation of the Fiduciary

generally a fiduciary cannot resign due to personal inconvenience or overwork, but they might be able to resign for physical infirmities or strained relationships with the beneficiaries.

Court Removal of Fiduciary

generally courts may not deny appointment except on the grounds specified in the statute UNLESS the fiduciary has partaken in malfeasance, breach of duties, or any other ethical issue that would make them no longer fit for the office. It is generally a "drastic action" to do so and is only exercised when the estate is in danger.

Capricious Conditions and Dead Hand Control

if a condition is impulsive or unpredictable and it would be against public policy or harmful to other, then it may not be enforced. (Destroying house was a condition, but it would have affected the market for neighbors so it was not enforced.)

Constructive Trust in Latham v. Father Divine (Fraud)

if a remedy is not available in the probate proceeding, then equitable remedy of constructive trust in courts of general jurisdiction may be available (civil court). A constructive trust in favor of the intended beneficiaries to prevent unjust enrichment to those who would otherwise profit from the wrongdoer's actions.

False Demonstratio Nocet

if there is a false description in a will and it is obvious, courts will allow you to cross it off so you can create an ambiguity which would allow the entrance of extrinsic evidence. (Ex. Wrong Address listed, Wrong Building number listed, Wrong middle initial)

Disinheritance by Negative Will

instead of distributing property, it prevents someone from inheriting via intestacy law. At common law, a negative will is not effective because wills were only allowed to distribute. Under the UPC, if the will is valid and enforceable, the way we interpret the negative will is as if the person written out of the will predeceased the testator. Meaning, the person written out of the will's heirs will take their share.

Dead Hand Control

limitation the testator may place on land that he is devising that may run for several generations.

Acknowledgement of Witnesses

most states allow the testator to sign the will in advance but the testator must be present when the witnesses sign.

Order and Time of Witness Signing of Will

most states follow UPC 2-502 with no specified time requirement except that it be in the "presence" of the testator.

Comingling of Separate Property and Community Property

o 3 Approaches to Comingling: § Inception of Right- Considers something community or separate property based on the character of the property at the time the party signs a contract of purchase. (from the beginning, subject to reimbursement from community) § Time of Vesting- you do not look to see who the owner of the asset is until the item is paid off. (Future husband buys a home and then gets married, then pays the home off while married, the house is the communities BUT the community reimburses him.) § Pro Rate Apportionment- How much was paid with separate property and how much was paid with community property?

Class Closing Rules of UPC

o A child in utero at a particular time is treated as living at that time if the child lives 120 hours after birth. o If a child of assisted reproduction or a gestational child is conceived posthumously and the distribution date is the deceased parent's death, the child is treated as living on the distribution date if the child lives 120 hours after birth and was in utero no later than 45 months after the deceased parent's death. o An individual who is in the process of being adopted when the class closes is treated as adopted when the class closes if the adoption is subsequently granted.

United States National Bank of Portland v. Snodgrass- (Cannot marry a Catholic by age 32)

o A restriction on marriage in a will is valid as long as it does not break the law, it is reasonable, and does not cause undue restraint. § What if they were already married at death? A condition designed to disrupt an existing family relationship may contravene public policy.

Administration

o Administration- The collection of assets, particularly personal assets, and with them paying debts, including taxes and costs of administration, until all are paid or the assets exhausted.

Where Administrator May Be Appointed in Case of Intestacy

o An administrator will customarily be appointed in the case of intestacy in any state in which a Will would have been admitted to probate.

Suppose that T orally offers to leave her entire estate to A in return for A's services as housekeeper, companion, and nurse. In reliance on T's promise, A leave her previous employer and moves in to take care of T. T subsequently dies intestate, leaving no written memorandum of her promise. Is T's promise enforceable? What remedies are available?

o Contractual Restriction Remedies: o Constructive Trust- Garret v. Read- Will law and Contract law act independently of each other. The probate court could say that the possessor by intestacy holds the property in "constructive trust" in contract law for A, but it would need to be enforced within another court. o Specific Performance- The court could enforce T to perform for A, but it wouldn't really matter in this case because T is dead. o Quantum Meruit- This is an equitable remedy to prevent an unjust outcome.

Husband and Wife write out their respective wills by hand and invite some neighbors over to witness the wills. Husband signs his will but wife fails to sign hers. The omission goes unnoticed, and the neighbors sign both wills as attesting witnesses. After wife's death the husband offers his wife's will to probate. What results under the harmless error rule?

o Could be yes or no. There is no way of know based on the hypo because we do not know why she did not sign the will. Most h/e jx would probably say no if there is not clear and convincing evidence to her intent.

- Workflow for Holographic Wills:

o Did they identify it as a will? o Did they keep the instrument in a safe place with other important papers? o Is there another explanation for the instrument that would negate testamentary intent?

Presence at the Sign of Will

o Different Views of in the Presence of the Testator: § Line of Sight- the testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look. § Conscious Presence- The testator, through sight, hearing, or general consciousness of event, must comprehend that the witness is signing. § UPC- the UPC does not require presence at all. o Three Types of Presence Required: § Signature of the T must be in the presence of W § Signature of the W must be in the presence of T. § Signature of the W's must be in presence of each other. o Test for Presence: could the T have seen the witnesses sign the will and how much effort would have been required to do so?

Dividends and Capital Gains

o Dividends- a portion of a companies earnings or profits distributed pro rata to its shareholders, usually in the form of case or additional shares. (return on investments) o Capital Gains- Profits realized when a capital asset is sold or exchanged. (sold at a higher rate than what is invested). o Trust Interpretation of Dividends and Capital Gains- Generally, dividends are considered income and capital gains are considered principal unless the trust instrument says otherwise. Courts are reluctant to allow fiduciaries to re-draw the lines of income and principal unless the trust instrument allows it (such as power to adjust or unitrust) or there is doubt issues regarding the income/principal.

General Gifts of Real Property Require:

o Donative Intent o Delivery by written instrument o Acceptance.

- General Gifts of Personal Property Require:

o Donative intent o Delivery- actual, constructive, or symbolic o Acceptance

Methods of Express Trusts:

o During life (transfer of property or declaration of trust), or at death (validly executed will or testamentary trust)

Trustee Duties:

o Duty to take no personal advantage/no profit. (Duty of Loyalty) o Duty not to delegate o Duty to keep and render accounts o Duty to exercise reasonable care and skill o Duty to retain control of and preserve the property o Duty to enforce claims o Duty to earmark and separate their property from the trust's o Duty to make the property productive o Duty to deal impartially with beneficiaries

Partnership Theory

o Elective share justified because surviving spouse contributed to decedent's wealth. o Surviving spouse should be entitled to one-half of decedent's property acquired during marriage.

Purpose of WIll Formalities

o Evidentiary Function- supply satisfactory evidence to the court. o Channeling Function- standardization of form simplifies administration. o Ritual/ Cautionary Function- The performance of some ceremony for the purpose of impressing the transfer with the significance of his statements. o Protective Function- purpose of safeguarding the testator.

Release or Assignment of Expectancy

o Expectancy- a person has no heirs until death, thus an heir-to-be of a living person has a mere expectancy, which is a prospect of succession that may vanish if the potential heir dies or is disinherited by the will. Thus, a gratuitous transfer of expectancy is unenforceable. o Release or Assignment of Expectancy- A release (to the living owner) or an assignment (to a third party) is generally held to be enforceable in equity if made for fair and adequate consideration.

Remedies of Cy Pres

o First, the court will consider "deviation." Then, if necessary, the court will rewrite the charitable gift or trust so that it is no longer unlawful, impracticable, impossible, or wasteful. If the court cannot find a general intent, then the remedy will be a resulting trust back to the settlor. § Deviation- switching the trustee to a party that is not in conflict with the issue at hand. (Example: Constitutional issue, switching from state actor to bank trustee) o Gift Over- If the trust completely fails and cannot be deviated or rewritten, then it is a resulting trust. § Expressed Giftover- If a settlor makes a provisions that a charitable gift cannot be given other than the provisions of the trust, then the purposes are limited and the trust cannot be rewritten via cy pres.

Gift vs. Trust

o Gift- a Legal gratuitous transfer, with intent, delivery, and notice via acceptance. o Trust- an equitable gratuitous transfer, with intent, delivery or declaration, but no notice or acceptance is necessary. (Beneficiaries do not have to know it is there).

Income and Principal

o Income- money received by beneficiaries periodically over time from employment, business, investments, royalties, gifts, and the like. o Principal- The corpus of an estate or trust. o Main Issue with Income and Principal- The usual "gripe" with the trustee involving income/principal is the duty of impartiality.

- Types of Trustees:

o Individual Trustee- when a settlor ask a friend or relative to serve as trustee. o Corporate Trustee- when a settlor names a bank or trust company as trustee.

Creation of Trust:

o Intent by the settlor to create a trust; o Ascertainable beneficiaries who can enforce the trust; o Specific property, the res, to be held in trust; AND IF the trust is testamentary or is to hold land,then to satisfy the Wills Act or Statute of Frauds

Attorney prepares "mirror wills" for husband and wife. At a joint execution ceremony in the attorney's office, each spouse mistakenly signs the will prepared for the other. The mistake comes to light after husband's death when the will is offered for probate. What result under the harmless error rule?

o Matter of Snide. Under the harmless error rule there is an unequivocal intent to approve the will copies despite the mistake.

- Mentally Competency for Testamentary Capacity

o Mentally Competent Test: § Testator must know the nature of his property. § Testator must know the natural object of his bounty. § Testator must form an orderly plan of disposition AND § Understand the disposition made by his will. § ** If any of these are missing then the testator does not have the mental capacity to execute the will. o Lucid Intervals- A person who is mentally incapacitated part of the time, but has lucid intervals during which he or she meets the standards for mental capacity may make a valid will or valid inter vivos transfer, provided such will or transfer is made during a lucid interval.

Types of Ambiguities in WIll

o Patent Ambiguities- evident on the face of the will. o Latent Ambiguities- when terms of the will are applied to the fact. § Equivocation- multiple people or things with different name. § Personal Usage- if the T used a term a specific way. § No Exact Fit- a description that does not fit any specific person or thing. o ** If ambiguity arises, then extrinsic evidence can be brought in to explain.

Power to Adjust and Unitrust

o Power to Adjust- A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor. This is to help with impartiality. § Unitrust- the settlor may set a percentage of the value of the trust corpus that must be paid to the income beneficiary each year. The corpus is then revalued each year. (controversial)

Two Types of Challenges for Trustees:

o Power- the trustee lacked the power to act as they did (ultra vires). o Duty- the trustee did not do what they were supposed to do, but they had the power.

Testator prepares a typewritten will and signs it, but fails to have it witnessed. After the testator's death, the signed unwitnessed will is offered for probate. What result under the harmless error rule?

o Probably yes under the harmless error rule if there was clear and convincing evidence that this was the T's intent, though it would be a broad interpretation.

Self-Settled Trusts and Public Aid

o Self-Settled Trusts and Public Aid- Settlors should not be able to qualify for public aid until they have "spent down" their trusts. Allowing settlors to be eligible for public aid by hiding their money in trusts would undermine public aid's purpose. § Exceptions To Self-Settled Trusts and Public Aid: · Discretionary trusts created by spouse for a surviving spouse. · Trust for disabled persons from the person's property by parent, grandparent, or guardian, provided that the state gets the remainder up to amount of state assistance.

Classification of Dispositions Under a Will

o Specific- devise of a specific piece of property (blackacre, jewlery) o General- devise of a certain amount or quantity which is payable from general assets. o Demonstrative- devise of a specified amount or quantity to be paid from a designated source. (X amount in Y bank account) o Residue- Whatever remains after all other disposition are satisfied. o ** These are all treated differently in certain aspects.

Remedies for Mistakes (Curative Doctrines)

o Substantial Compliance- The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of the formalities were served. (purpose) o Harmless Error Rule- The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will. (intent)

Remedies for Breach of Duty of Loyalty

o The court may remove the fiduciaries and replevin all items taken from non-bona fide purchasers. Property within the estate/trust that cannot be returned can be considered as damages against the fiduciary.

Factors to Determine Abuse of Discretion by Trustee:

o The extend of the discretion conferred upon by the trustee. o The purposes of the trust. o The nature of the power o The existence or non-existence of definiteness or indefiniteness. o The motives of the trustee o Conflicting interests of the trustee/beneficiary.

Remaindermen Under Spendthrift Exceptions

o The innocent beneficiaries would be harmed in an exception situation.

Self-Proving Affidavit

o The testator and the attesting witnesses sign the Will, and then sign sworn affidavit before a notary republic reciting that the testator (1) declared to the witnesses that the instrument was her will, and (2) the testator and the witnesses all signed in the presence of each other. There are two types of self proving affidavits. One only requires one step, in which the affidavit is combined with the attestation clause. The other requires two steps in which the affidavit and attestation clause are not combined.

Where the will may be probated and representative appointed:

o The will of a decedent will customarily be admitted to probate and an executor or administrator appointed in a state: § (a) where the decedent was domiciled at the time of his death; § (b) where there are assets of the estate at the time of the decedent's death or at the time of the appointment of the executor or administrator; § (c) where there is jurisdiction over the person or property of one who is alleged to have killed the decedent by his wrongful act, if the statute under which recovery is sought permits suit by an executor or administrator appointed in that state.

Attorney prepares a formal will for testator, who is ill in hospital. Testator reads the will and approves its contents, but ask the attorney to correct the spelling of one beneficiary's name. Attorney takes the will back and returns later the same day with a retyped will for the testator to sign, only to discover that testator has died. The unsigned will is offered for probate. What result under the harmless error rule?

o There would be no valid will because the second will was never reviewed by the testator so we do not know if he would have approved it (no intent to use it as his final will). We know the first copy had a clear error. Here, there is no deliberate final testamentary instrument.

Testator prepares a will on his computer, including his name at the end, and saves the document as a digital file entitled "Will.doc." After the testator's death, no printed copy of the document is found, but the digital file is found on a thumb drive. What result in a harmless error jurisdiction? What if the T typed it up on a text message? What if the T recorded a "video will"?

o This would likely be admissible as long as there is clear and convincing evidence that this was his intent. A text message may be evidence of intent if the testator sent the message. More evidence would need to be gathered. A video message would likely be accepted under a harmless error jurisdiction if there is evidence that it was his intent.

Transfer in Trust vs. Declaration of Trust

o Trust by Agreement (delivery)- the funding of the trust occurs upon a transfer of property by the settlor to the trustees (a completed gift). o Trust by Declaration (no delivery)- no transfer of legal title is necessary because the settlor already owns the property with which the trust is to be funded. § Transfer of Land via Declaration of Trust- The mere declaration that real estate is held in trust, without the transfer of a deed, is sufficient. However, keep in mind that if the res is land, then the SoF requires a writing (not necessarily a deed) to properly evidence trust.

The Duty to Diversify

o Trustees should avoid a concentrated position when investing and should invest based on the beneficiaries needs or requirements § Surcharge- the remedy for failure to diversify. Surcharge is calculated by the difference between when the trustee should have diversified and the amount they actually received UNLESS there is self dealing. If there is self-dealing then the court would follow the more stringent "lost profit" approach. Lost Profits is the difference between when the fiduciary should have sold and the potential gain that could have been if invested properly. § Diversifying the Trust and Intent- the trustee has a duty to diversify the trust unless there is direct language stating that the settlor intended the trust to remain intact. (Like splitting farmland in Inman was not his intent).

- Suppose T properly executes a will in favor of A. Shortly afterwards, A becomes disenchanted and ceases taking care of T. If T dies without revoking or amending the will, can A keep the estate? - What if T becomes dissatisfied and dismisses A, and then changes her will?

o We could argue that A breached the will contract but the fact the T did not change the will would give rise to question T's intent. o We would have to argue that T's intent was clear, but A could still pursue her equitable remedies.

UPC Scenarios for Revival of Will

o Wholly Revoked- If W2 (the revoking instrument) wholly revokes W1, the revocation of W2 by a revocatory act does not revive W1 unless the proponent of W1 shows that the decedent intended the revocation of W2 to revive W1. (2 kills 1 unless intent to revive) o Partly Revoked- If W2 only revoked W1 in part, then the revocation of W2 by a revocatory act does revive the rest of W1, unless the party arguing against revival shows that the decedent did not intend the revocation of W2 to revive those parts of W1 revoked by W2. (W1 revives unless there is intent to kill) o Will 3- If W2 is revoked by a later will, W3 does not revive W1 unless the text of W3 indicates such a result is what the T intended.

Waiver

o a contractual agreement out of a spousal right to inherit such as prenuptial agreements or antenuptial agreements. If the provision is not reasonable as of the time of the contract, then it must appear that the deprived spouse knew what he or she was doing when he or she signed the contract and did so voluntarily, and it was not unconscionable. § UPC and Waiver- The deprived spouse would need to have his/her own representation in order for a waiver to be valid. If they do not, then the provision is considered unconscionable because of unequal bargaining power. § Majority Under UPAA (1983)- Burden of Waiver: Party opposing premarital enforcement must prove the agreement was (1) not voluntary; OR (2) unconscionable when executed.

Augmented Estate (Elective Share Under the UPC)

o a reference for measuring the amount of the elective share and for identifying the sources from which it is payable § Purpose of Augmented Estate: To prevent the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share. § Under the Augmented Estate, the surviving spouse will receive a percentage of the elective share based on the number of years that they were married.

Duty to Not Mingle Trust Funds with Trustee's Own

o trustee must not commingle trust funds with his own, even if trustee does not use the trust funds for his own purposes. § Exception to Comingling- Corporate fiduciaries are an exception to comingling due to the burden of keeping funds separate. BUT they cannot invest in their own stock.

Discretionary Invasion

o when the trustee is allowed to distribute the principal instead of the income. Generally, it is presumed that the trust instrument does not allow this because it devalues the trust, but if it is clear that it was the settlor's intent to invade then it might be allowed.

Intestacy

occurs when an individual dies owning property which is not effectively disposed of by will.

How far can one use Representation?

only permitted as far as brothers and sisters, and their descendant's by representation. (No claimant of a more remote degree can contest the will).

Remedies for Undue Influence

partial or total invalidity of will- where specific provisions of a will are the product of undue influence, courts usually ignore the tainted provisions and give effect to the remaining provisions. The will itself is not necessarily void unless such influence directly or impliedly affects them.

Representation

permits the living descendant of a predeceased relative to "represent" their ancestor for purposes of inheritance.

Pretermitted Heir

pretermission is when a individual is accidentally omitted from a testamentary instrument. This is different than elective share because elective share is purposeful.

Temporal Division of Gift-

property can be divided substantively and temporally, meaning you can give property for a set listed time.

Property as Beneficiaries

property cannot be considered a beneficiary unless it is a purpose trust (a trust set for a specific purpose such as up-keep)

Exempt Property and Family Support Allowance

provide a limited amount of personal property (i.e.: household furniture, clothing, and personal effects) as well as temporary support from the estate for surviving family members during the time of administration.

Power of Attorney

provides that a power of attorney for health care must be in writing and signed by the principal when they have capacity. After complete, the POA "stands in the shoes" of the principal and can act on their behalf.

Gifts in Contemplation of Marriage

similar to gifts causa mortis, gifts in contemplation of marriage are subject to the implied conditions of divestment if the marriage does not in fact take place.

Statutory Allowance

surviving family members are entitled to allowances from the decedent's estate for homestead, exempt property, and family support. This takes priority over creditor's rights.

Traditional Elective Share

surviving spouse has a right to claim (elect) a share of property owned by the decedent at death, often on condition that the spouse renounce the decedent's will. o Elective Share Amount in Most States: In most states, the amount is 1/3 of the net probate estate (probate minus creditors' due) if the decedent is survived by issue, and ½ if the decedent is not survived by issue. This amount may vary depending on the duration of the marriage. Elective Share Under UPC (2-202)- The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this, to take an elective share amount equals to 50% of the value of the marital property portion of the augmented estate.

The UPC and Lapse

the UPC does not follow the "no residue of the residue" rule. Meaning, the residue that lapses would fall back into the residue for living devisees to take.

Power of Appointment

the addition of future trustees at a future date to handle "any stick in the bundle" of trust rights.

Exempt Property Under UPC

the decedent's surviving spouse is entitled from the estate to a value, not exceeding $15,000, in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects; if there is no surviving spouse the decedent's children are entitled jointly to the same value.

Disposition of Disclaimed Interests

the disclaimed interest generally passes "as if the disclaimant had predeceased the decedent."

Title Disputes

the fiduciary is under a duty to clear up title disputes to the property and may, if necessary, resort to court processes to do so.

Constitutional Limitations

the government can take land if they please, but they have to pay just compensation based on the 5th amendment.

Appointment and Qualifications of a Fiduciary

the instrument itself may specify whom the testator or settlor wishes to place the responsibility of administering the estate as executor, or the trust as trustee.

Will

the instrument that controls the disposition of the testator's estate.

Lapse

the intended beneficiary must survive the testator under the survival of wills. At common law, if the intended beneficiary is to be given a specific or general devise and dies, then their gift will fall into the residue. At common law, If the intended beneficiary is to receive the residue and lapses, then the heirs of the testator take by intestacy (No Residue of the Residue Rule). The modern majority do not follow the no residue of the residue ruling and have anti-lapse statutes.

Mandatory-Income Trust

the opposite of discretionary trust in which there is a trust agreement that has a schedule of distribution. The trustee has to follow the discretion of the settlor.

Jurisdiction of the Probate Court

the probate court in the county in which the decedent resided at the time of death. Even though they may have land in a different county it is governed where they resided at death.

Remedy for Indefiniteness of Beneficiaries in a Trust

the remedy is a resulting trust in which the testator's intestate successor would take if the settlor has passed.

Statute of Frauds and Gifts of Real Property

the requirement that certain kinds of contracts be memorialized in writing, signed by the party to be charged, with sufficient content to evidence the contract. For real property there are two exceptions to the statute of frauds; Partial performance with evidence of possession, improvements, or payments, OR Equitable Estoppel.

Procedure for Election of Elective Share

the right to elect a share is personal to surviving spouse. The election must be made during the spouse's lifetime and it cannot be made by a personal representative after the spouse's death. (UPC 2-212a)

Duty to Conserve Trust Property

the trustee must take necessary step to conserve the property of the trust (such as Mayo. Corporate Investment standard was not appropriate 20 years prior but to conserve the value of the fund it had to be allowed).

The Duty To Treat Beneficiaries Impartially

the trustee must treat all beneficiaries, current and future, equally and for everyone's benefit. This includes remainderman beneficiaries.

Witnesses Knowledge of Contents of Will

the witnesses need to know that the document is a will. They do not need to know the contents thereof but they need to have knowledge that they are signing a will. The instrument does not have to state it is a will, only the witness would need to know it is.

The Word Trust

the word "trust" is not required, but is also not necessarily sufficient to establish a trust. We only need to show that there was an intent to bifurcate the assets.

Trust Separation of Legal and Equitable Title

this distinction between legal and equitable title is the most important characteristic of a trust. A trustee is the legal owner of the property. The beneficiary is the equitable owner of the property. This is called bifurcation of title.

Intent of Protection of Pretermitted Heirs

to provide for children who are unintentionally left out the law presumes omissions are unintentional. Though, this presumption is rebuttable.

Undue Influence

undue influence over a person exists if he is subject to such psychological domination by another that he cannot help but do what the other wishes. Undue influence assumes that the testator had the capacity to execute, but did so by another's will and not the testator's free will. (Thus, you cannot argue both incapacity and u/i) - 3 Core Issues of Focus for Undue Influence (Raise an inference): o (1) a person who can be influenced; o (2) the fact of deception practiced—or improper influence—exerted; AND o (3) submission to the overmastering effect of such unlawful conduct. o **Once an inference is raised, then the burden shift to the proponent to rebut the inference with Clear & Convincing evidence. - Evidence to establish proof of Undue Influence: o Confidential Relationships o Susceptible Testator o Unusual Benefits o Suspicious Circumstances

Homestead Allowance Under UPC

up to $22,500 for surviving spouse; if no surviving spouse, minor and dependent children divide a $22,500 allowance.

Wills are Not Self Executing

wills must be admitted to probate in order to operate in favor of the testator's beneficiaries. If the will does not reach probate or is denied probate, then the estate passes to intestacy.

Item Theory

you look at every (item) individual asset, transfer, and gift, then the surviving spouse would be entitled to their half of it in a community property system.

o UTC and Discretionary Trusts

§ "A creditor of a beneficiary may not compel a distribution that is subject to the trustee's discretion, even if: · The discretion is express in the form of a standard of distribution; or · The trustee has abused the discretion. § To the extent a trustee has not complied with a standard of distribution or has abused a discretion: · A distribution may be ordered by the court to satisfy a judgement or court order for support or maintenance of the beneficiary's child, spouse, or former spouse; and · The court shall direct the trustee to pay the child, spouse, or former spouse such amount as is equitable under the circumstance."

Augmented Estate Elective Share is payable in the following order:

§ (1) decedent to the surviving spouse; § (2) spouse's own property and non-probate transfers to others; then, § (3) property passing from decedent to other beneficiaries.

Elements of Cy Pres

§ If it becomes unlawful, impossible, or impracticable to carry out the purpose of the designated trust OR § If it become wasteful to apply all the property to the designated purpose, § THEN the charitable trust will not fail but instead the court will direct the application of the property to a charitable purpose that reasonably approximates the designated purpose.

Services and materials furnished to preserve the benefit to the beneficiary exception to spendthrift provision rationales:

§ It prevents a judgement-proof beneficiary, who obtains such services, from being unjustly enriched; and § It also ensures access to such services for needy beneficiaries.

Is the Estate or the Fiduciary liable for claims against the estate?

§ Majority (Onanian)- Creditors can pursue the executor of the estate to recover from disputes of the estate. Why? The estate should not have to pay for the mis management of the fiduciary. § Moden Trend (Vance)- Creditors can pursue the estate to recover for disputes under the estate. Why? The fiduciary may be insolvent to answer while the estate is not.

Four Different Categories of The Augmented Estate

§ Purpose of Augmented Estate: To prevent the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share. § Four Different Categories of The Augmented Estate: · (1) the decedent's net probate estate (UPC § 2-204); · (2) certain property transferred by the decedent outside the will to beneficiaries other than the surviving spouse (UPC § 2-205); · (3) certain property transferred by the decedent outside the will to the surviving spouse (2-206); and, · (4) property owned by the surviving spouse at the decedent's death, and property that would have been included in the spouse's augmented estate under (2) above if the spouse would had failed to survive the decedent. (2-207)

Spendthrift Protection Exceptions:

§ Self-Settled Trusts § Public Policy (Extraordinary) § Spousal or child support; § Necessities furnished or served to the beneficiary § Services and materials furnished to preserve the benefit to the beneficiary (such as attorney fees); § United States or State claims.

When do we use Elective share?

§ Separate Property Jurisdictions where a spouse does not believe that he/she is provided enough for in the will. You do not use elective share if someone dies intestate to gain more. § If the decedent could "touch" the amount then the elective share percentage is effective on that amount.

Homicide Disqualification for Inheritance

§ Slayer Statute- Bar a killer from taking the deceased victim's property by will or intestacy. The premise of slayer statutes is nobody should be able to take advantage of their own wrong. § In Re Tarlo- Can a person who was not adjudged a murderer still inherit? Majority- Yes. Minority- No. § Criminal Convictions & Inheritance- certain statutes may make evidence of criminal proceedings "admissible evidence" in civil proceedings to determine succession of right. § Disposition of Forfeiture Share- If a killer forfeits the right to inherit from the victim, most slayer statutes provide that the victim's property passes as if the killer predeceased the decedent. · Joint Tenancies & Murder: survivorship rights are severed. · Life Insurance & Murder: the beneficiary of a life insurance policy who kills the insured is not entitled to the resulting life insurance proceeds.

Successor Fiduciary Appointment:

§ The Will/Trust may nominate a successor § The surviving fiduciary may nominate a successor § The Will/Trust nominates a person to name a successor. § The court nominates a successor.

Knowledge of Trustee's Conduct by Beneficiaries

§ The knowledge and approval of the fiduciary's conduct by the beneficiaries may constitute a ratification of that conduct, which estops the beneficiaries from making a challenge. Though, mere silence does not constitute knowledge. · Virtual Representation- An adult standing in the place of a child beneficiary's making decisions may be binding to for the beneficiary.

Multiple Fiduciaries

§ The stated rule with regard to several co-trustees of private trusts is that they must act with unanimity. This does not apply to co-executors or co-administrators.

§ W takes care of her ailing cousin C, who agrees to leave her a bequest of $10,000. At C's death, W receives the promised bequest. Alternatively, C dies intestate and W recovers $10,000 from the estate. What happens in a community property jurisdiction?

· Any asset that is through gift, bequest, devise, or decent is not a community asset.

§ Before marriage, W took out an ordinary whole-life insurance policy on her own life in the fact amount of $100,000 and designated her child C as beneficiary. W paid the annual premiums from her own separate funds until her marriage to H, and then paid subsequent premiums from community funds during marriage until her death. Of the total premiums paid before W's death, $4,000 came from W's separate funds and $6,000 came from community funds. How would this be handled in the different approaches to comingling?

· Inception of Right- H would be entitled to $3,000 because $6,000 came from community funds and would need to be reimbursed. The beneficiary would be entitled to the $90,000 remainder. · Time of Vesting- the life insurance policy was never "paid off" or vested, therefore this would not apply. · Pro Rata App.- 4/10 of the 10K was paid with separate property. 6/10 was paid with community property. Therefore, H would receive 3/10 of the funds from the community property and the beneficiary would receive the remaining 7/10.

§ Before marriage, W purchased a house in her own name for $200,000, paying $20,000 in cash and taking $180,000 mortgage loan to finance the balance of the purchase. At the time of her marriage to H, W paid down $20,000 of the mortgage principal from her separate funds. During the marriage, she paid down another $40,000 from community funds. A W's death, the outstanding mortgage principal is $120,000 and the value of the house is $300,000. How would this be handled in the different approaches to comingling?

· Inception of Right- W's property but the community is entitled to reimbursement. Here, 40,000 was pulled from community funds so the husband would be entitled to 20,000 (1/2). · Time of Vesting- The property would be the communities once the item was paid off. Because W died before the item was paid off, then this is not an issue. · Pro Rata- Depends on how much the house would have been worth when the couple was married, then it would be pro rated from there.

§ Before marriage, H stated a property management business with minimal capital. At the time of his marriage to W, the business was worth $100,000. During the marriage, H continued to manage the business and drew a reasonable salary for his services. At H's death, the business is worth $500,000. How would this labor intensive situation be handled with comingling?

· Perira- Really Intensive Job- Following the Perira view, if the business was labor intensive, then the community is allowed a high amount. · VanCamp- Not As Intensive Job- the community is not allowed a fair amount because it was not labor intensive. o Take-Away: if the business is labor intensive, then the community property should be allowed more and the separate property should be allowed less. If the business is not labor intensive, then the separate property should be allowed more and the community property should be allowed less.