Will, Trusts, and Estates Flashcards
Intestacy (Dying without a will)
Law of intestacy applies to any property in a probate estate that passes after death without a valid will
Probate Estate: All of a person’s real and personal property
- NOT probate estate: Revocable trusts and life insurance policies
Heir: Anyone lawfully entitled to share of probate estate
- Typically: Reasonably close relatives
- Temporal: Heir must survive decedent by at least 120 hours
Inheritence priority:
- Only a surviving spouse = spouse gets 100%
- Surviving spouse + parents = Spouse gets $300,000 +3/4 AND parents get whats left
- Surviving spouse + descendants (all descendants are joint from surviving spouse and decedent) = Surviving spouse gets 100%
- Surviving spouse + descendants (all decedents descendents are with Surviving Spouse BUT Surviving Spouse has descendents with someone else) = Surviving spouse gets $225,000 + half of whats left
- Surviving spouse + descendants (decedent has descendents NOT with surviving spouse) = Surviving Spouse gets $150,000 + half of whats left
WHATEVER IS LEFT AFTER SURVIVING SPOUSE = goes to surviving descendants
- if descendent dies before decedent, their descendents “take by representation”
— “per stripes” representation: Estate divided into equal parts for each of decedent’s children, if there was predeceased child who had their own children, then that child’s share is divided equally among that child’s children, if there was predeceased child who had no children their share goes away
— (default under UPC) “per capita” representation: Estate divided into equal parts for each of decedent’s surviving children and predeceased children (any predeceased children with no children are disregarded), surviving children take their shares, then the shares allocated to the predeceased children with children is pooled and divided equally among all children of the predeceased children
IF NO HEIRS AT ALL: to the state
Wills
(1) testamentary intent (intent it functions as their will),
(2) Jx’s formal requirements (a) (writing, signed, witnessed) OR (b) (in testator’s handwriting, signed and dated by testator)
(3) testamentary capacity (age, sound mind)
- witness: (some jx: interested witness (someone who gets something under will) doesn’t count to witness count) (some jx: interested witnesses count)
- (some jx) Formality requirement exception: “harmless error rule”: despite formality errors, valid will if proponent can show by clear and convincing evidence testator intended it to be their will, (other jx: strict formality requirements)
- capacity: Understand: (a) nature and extent of property, (b) who will receive the property, (c) understand they are creating will, (d) disposition of the property
Choice of law: Location of domicile upon death
- BUT: laws of state where real property (land) is located regarding any real property given away in the will
Wills: Family Protections
Surviving Spouse’s Elective Share = Spouse’s ability to elect to take a share of the estate
- Only some Jx allow this
- Typically 1/3 of the estate
- Spouse can choose to take their elective share even if they were technically left something in the will, but they can only chose one or the other, meaning the amount left normally in the will or the elective share
- Purpose: To protect spouse’s who were intentionally disinherited
“Surviving spouse’s intestate share” = spouse may elect to receive portion of the decedent’s estate that they would have received had the decedent died without a will
- WHY: This share is typically used in situations where decedent marries the surviving spouse, but had a will prior to the marriage and didn’t update it after the marriage, meaning the surviving spouse would now receive nothing and isn’t mentioned in the will
- calculating: share is calculated ONLY AFTER removing the portion of the estate that would pass to a child of the decedent from a prior marriage that isn’t also a child of the surviving spouse, or a decedent of that child
- EXAMPLE: Decedent estate 1 million, has a child from prior marriage that will leaves 100,000, thus surviving spouse’s share is calculated using a total estate value of 900,000 (thus apply the intestacy rules from above only to the 900,000 remaining)
- surviving spouse may elect to take her “intestate share” of the estate even if the will makes no provision for such a share
- can only chose the elective share, or the intestate share here
- UPC: any prior gift to the surviving spouse is irrelevent to determining whether surviving spouse can take an intestate share, EXCEPT it will count towards satisfying the total amount the surviving spouse should receive under the intestate share
- 3 EXCEPTIONS that prevents intestate share from applying at all: (a) will made in contemplation of decedent’s marriage to surviving spouse, (b) no intestate share if will specifically states it is to remain effective despite any later marriages, (c) no intestate share if decedent provided for surviving spouse outside of the will, and decedent intended this provision to operate in lieu of the will
Omitted children: ONLY means (a) child out of will because born/adopted after will created, or (b) child alive when will created but left nothing because decedent erroneously though child was dead
- MY NOTE: essentially only applies to children left out by accident, not intentionally left out children
- Amount received: (a) if decedent had no other living children at will’s execution, ommitted child may elect to receive forced share that they would have been entitled to had decedent died with no will (so apply intestacy rules for kid from above), (b) if decedent’s other children in the will got something, then ommitted child gets the same amount as them with everyone’s amount reduced proportionately
- EXCEPTIONS: (a) if decedent left substantially most of will to ommitted child’s other parent (b) if decedent had other living children at time of will creation yet left other children nothing, then omitted child also can’t received anything (c) ommitted child intentionally left out of will (d) ommitted child received some non-will gift from decedent that was intended to be their gift rather than anything in the will
Trusts
fiduciary relationship in which trustee holds legal title to property that a person placed in trust for the benefit of a beneficiary
(1) capacity, (2) intent, (3) transfer property to trustee, (4) fiduciary duty regarding property, (5) trust has valid ascertainable purpose, (6) beneficiary alive and ascertainable
- capacity = understand (a) nature/extent of property, (b) heirs/beneficiaries, (c) significance of the act, (d) disposition of property in trust
- trust doesn’t usually fail if designated trustee doesn’t want to do it, court will just appoint someone else
- If terms/purpose/beneficiary too vague or indefinite to ascertain with reasonable certainty, then trust fails for indefiniteness
- valid/ascertainable purpose = lawful and not contrary to public policy. Trusts that encourage crimes/torts/intereferes with marriage/religion violates public policy.
