Michael Mroczka Wills, Estates, and Trusts Outline3
first proceeding was essential to the judgment of that court.
2. Conflicts of Interest
A. v. B.
Law firm, represented both husband, H,respondent, and wife, W. Both executed mutual wills transfer all the property to the survivor with the reasonable expectation that eachwould provide for their children. Meanwhile,the firm mistakenly took on another client, awoman who sued H for paternity. Theexistence of the additional child was vital to
and W’s estate plan. The firm withdrew
from representation in the paternity suit and ordered H to tell W of his other child or the firm would. H sued firm to prevent disclosure.
A firm that represents a husband and wife mayonly disclose to the wife the fact that the husbandhad fathered another child but may not disclose theidentity of the other woman or the child. The Courtwill allow the firm to tell the wife that her husbandhas a child by another woman because it is crucialto her needs in her won estate planning. However itmust protect the confidentiality of its client, theother woman, because it also owes her a duty because they had formerly represented her.
Chapter 2. Intestacy: An Estate Plan by Default
Section A. The Basic Scheme
Probate property of a person who dies w/o a will is governed by the state’s statute of descent and distribution.
If a will disposes of only part of the probate estate, then the result is a partial intestacy.UPC Intestacy Statutes
UPC §2-101: Intestate Estate
Any part of estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as
prescribed, except as modified by the will.
(b) Decedent may expressly exclude or limit the right of an individual or class to succeed to property of the
decedent passing by intestate succession…Passes as if that individual or class had disclaimed his intestate share.
UPC §2-102: Share of Spouse
Spouse inherits whol
e estate if no descendant or parent survives the decedent OR all of the decedent’s
descendants are also descendants of the surviving spouse. Outlines shares if there are some other descendants.
UPC §2-103: Share of Heirs Other Than Surviving Spouse
Any part of the estate that does not pass to the surviving spouse, descends in this order. Children
descendants of one’s parent
UPC §2-105: No Taker
If there is no taker under these provisions, the estate passes to the state.Meaning of Heirs and the Transfer of an Expectancy
Under law, a living person does not have heirs. They are called
This is so because they have no interest atall
they have an expectancy, but that can be altered by will or deed.
Because it is not an interest, an expectancy may not be transferred. However, under equity, such an interest may be granted bythe court where it is just under the circumstances.
2. Share of Surviving Spouses
In designing an intestacy statute, the primary policy is to carry out the probable intent of the average intestate decedent.
Studies show that when there are no children from a prior marriage, most persons want everything to go to the surviving spouse,thus excluding parent and siblings
Under the current intestacy laws in most states, the surviving spouse usually receives at least one-
half share of the decedent’s
If there is no descendant, nearly half of the states provide, as does the UPC, that the spouse share with the decedents parents, if any.
A person succeeds to the property of a decedent only if the person survives the decedent for an instant of time.
It is presumed that the beneficiary died first and thus, neither inherits from the other. If two joint- tenants die together, each getstheir half to transmit. Same applies to property held in tenancy by the entirety or community property.Janus v. Tarasewicz
This declaratory judgment action arose out of the deaths of a husband and wife who died after ingesting Tylenol capsules laced withcyanide. H was pronounced dead shortly after he was admitted to the hospital. However, W was placed on life support systems for almost two days before being pronounced dead.Claiming that there was not sufficient evidencethat W survived H, P brought this action for
In Illinois, if the title to property depends on the
priority of death and there’s no sufficient evidence
that the persons have died otherwise thansimultaneously and there are no other provisions intestamentary or other governing instruments for distribution of the property, the property of each person shall be disposed of as if he had survived. Itwas not necessary to determine by how longTheresa survived Stanley. After viewing the record