Intro and NonProbate Property

Question 1

Intestate Succession

Answer 1

• fixed set of rules which dictate where a deceased’s property goes upon death based on degree of relationship, age, sex, etc.
• still the default is no will

Question 2

Will

Answer 2

• no constitutional right to exercise dead hand control
• allow person during life to determine where property passes upon death

Question 3

Probate Avoidance Techniques

Answer 3

• some property passes outside of the probate process
  -> ex: inter vivos trust, survivorship rights, + other contractual rights
• when you distribute decedent’s estate, need to first distribute these items according to their terms before distributing rest under intestacy or a will

Question 4

Nonprobate Property - General Concept

Answer 4

• include life insurance, joint tenancies or tenancies by entirety, inter vivos trusts, bank account trusts, deeds, contracts, + inter vivos gifts (including gifts causa mortis)
• may enable indivs to avoid taxes + eliminate costs + inconvenience of probate
• property governed by probate avoidance technique does NOT pass through probate -> not governed by will or intestacy -> need to remove these assets before distributing property under will or intestacy

Question 5

Inter Vivos Outright Gifts

Answer 5

• if decedent has already given property away, it obvs will not pass under decedent’s will or by intestacy

Question 6

Inter Vivos Living Trusts

Answer 6

• property the decedent has already transferred into an inter vivos trust won’t pass through decedent’s estate
• instead, passes under terms of the trust

Question 7

Future Interests

Answer 7

• ex remainder or executory interest
• pass to named beneficiary

Question 8

Co-Ownership of Property

Answer 8

• tenancy in common -> no survivorship rights -> probate NOT avoided
• vs. joint tenancy -> survivorship rights -> decedent’s share passes to surviving joint tenant and not via intestacy or under decedent’s will

Question 9

Life Insurance

Answer 9

• the most widely used will substitute
• contract -> disposition of policy’s proceeds is governed by the terms of the contract

Question 10

Totten Trust

Answer 10

• bank arrangement
• deposit of money in a bank account “trust” for another person
• depositor retains complete control over account during their lifetime + transfer complete only upon their death
• these aren’t really true trusts, just accounts

Question 11

Joint or Survivor Accounts

Answer 11

• bank account deposits in the name of two or more persons “with right of survivorship” -> generally effective to give survivor absolute right to all of the money
• BUT under UPC, creditors can reach the money in a joint account, to the extent that the decedent deposited money in the account, if other estate assets are insufficient to satisfy their claims
  -> even at common law, creditors can reach joint account if opened for decedent’s convenience + no survivorship feature was intended
• in many states, ev is admissible to show that the joint account was set up merely as a convenience for paying the depositor’s bills + no gift to survivor was intended

Question 12

Payable on Death Designations

Answer 12

• bank accounts + corporate securities may be held in “payable on death” form, so the property passes to the designated person upon the owner’s death

Question 13

Deeds

Answer 13

• a deed deposited in escrow, w/ delivery conditioned upon the grantor’s death, may be a valid nontestamentary transfer
• similarly, if a deed, which by its terms is effective only upon the grantor’s death, has actually been delivered to the grantee, a court may sustain the transfer as nontestamentary by construing the deed as a present transfer of a future interest, subject to life estate in grantor