Professional Documents
Culture Documents
I. Intestacy
A. When someone dies without a will
1. The issue is what happens to their possessions
2. Heirs
a. Receive possessions of the decedent
b. Living people do not have heirs
c. Determined by statutes, living survivors of the decedent
1) Parents and collateral
3. Issue
a. Children of the decedent
4. Descendants
a. Anyone in the bloodline, children, grandchildren, etc
5. Spouses and children are usually given preference
a. Spouses worked to help acquire the assets
b. Minor & Adult children are treated the same
B. Statutes are Default Rules
1. Attempts to determine what the decedent would want
a. Assumption that the spouse would be provided for
2. Some cut off the distribution of property to a certain extent
3. Half-Blood vs. Whole Blood
a. Some statutes treat half blooded relatives the same as whole blooded
relatives
b. Sometimes they are treated differently
4. Some statutes treat children in utero as if they were born during the decedents
lifetime
5. Some states refer back to other laws when dealing w/ adopted children
6. Escheat
a. If no family member is found to inherit the decedents possessions, then the
estate goes to the state
C. Spouses
1. It is very difficult to disinherit a spouse
2. Elective Share: Testacy
3. Forced Share: Intestacy
4. Protection
a. Not blood relatives, given special protection under statutory law both intestacy
and testacy
b. Elective or Forced Share
1) Available to a surviving spouse
2) Not limited to property acquired w/ earnings
a) It is enforceable against all of the decedent spouses property
b) Non-probate transfers pose challenges in implementing this idea
3) When allowed:
a) If the gift is less than what the spouse would have received under the
statute
c. Probate Assets
1) Anything listed in the will
2) Anything that is titled to the decedent
3) Factors:
a) What happens if the decedent provides for the spouse outside of the
will?
b) Should the length of the marriage determine what a surviving spouse
receives?
c) Should the prenuptial agreements factor into spouses share?
d. Property Set Asides
1) For families and spouses
2) Done so that the survivors are provided for, the bare minimum
5. Disqualification of the Surviving Spouse
a. Death
b. Handout
c. Failure to provide the required support
6. Waiver
a. Prenup-PostNup Agreements
b. Waiving their rights to their claim of the estate of the deceased spouse
c. Generally permissible subject to certain limitations
1) Duress
2) Unequal bargaining power
3) Non-disclosure
4) Involuntary
D. Choice of Law
1. Real property
a. The law where the property sits is the law that will apply
2. Types
a. Inducement
1) Fooling the testator, trickery, intent to deceive
b. Execution
1) Getting the testator to sing the wrong document
F. Tortuous Interference with an Expectancy
1. An intentional interference w/ an expected inheritance or gift
a. The plaintiff must prove that the interference involved conduct tortuous in
itself, such as fraud, duress, or undue influence
b. This action is not a will contest, it is an action against the tort feasor
2. Elements
a. The existence of an expectancy
b. Intentional interference w/ the expectancy through tortuous conduct
c. Causation
d. Damages
G. Formalities
1. Writing
2. Signature by the testator
a. The fill name is preferable
b. A mark, cross, abbreviation or nickname can be sufficient
1) Usually if the testator is physically incapable or illiterate
c. The testator should sign first
2) Some jurisdictions and UPC allow for the witness to sign the will after the
testator has died
a) They are signing that the testator signed the will while he or she was still
alive
b) Follows policy of preferring testacy to intestacy
3. Attestation by the witnesses
a. Attestation Clause
1) A clause that the witness signs that they have witnessed the instrument
2) It might also be an affidavit, which would prevent the witness from being
called into court
b. Presence
1) For some jurisidcitions, for the will to be valid, the presence of the
witnesses is satisfied when the testator is capable of seeing the
witneses sign for the will to be valid
2) Line of Sight Test
a) The testator does not actually have to see the witnesses sign, but must
be able to see them were the testator to look
3) Conscious Presence Test
a) The witness is in the presence of the testator if the testator, through
sight, hearing, or general consciousness of events comprehends that
the witness is in the act if signing
4. These procedure for these requirements will depend on the jurisdiction
H. Safeguarding the Will
1. Keep wills in secure place
2. Publication
a. Required in NY
b. Lawyer asks 3 Questions:
1) Is this your will?
2) Have your read and understood it?
3) Does it dispose of your property in accordance w/ your wishes?
c. Declaration that this will belongs to the testator
1) Shows mental capacity
3. Three Witnesses
a. It might make sense to have 3 witnesses b/c some states require 3
b. One of the witnesses might be a beneficiary
c. Self-Proving Affidavit
1) Signed so that the witnesses do not have to go to court to prove the will
2) Also done if the witness is unavailable should the will be attested
4. Subscription
a. Signed @ the bottom
b. Gives the impression that everything above the signature is what the testator
intended
I. Holographic Wills
1. One where the signature and the material provisions are in the handwriting of
the testator
2. Conditional Will
a. One where the testator is concerned about a particular type of death
3. Present vs. Conditional Intent
a. Question whether this writing has the present intent to make a testamentary
gift
4. Informal writing is not fatal, so long as it is mean to create a testamentary gift,
disposition
J. Nuncupative Wills
1. Oral will
2. Must be established by @ least 2 witnesses
K. Pretermitted Child
1. A child that has accidentally been forgotten, omitted from the will
2. This rule allows this type of child to share in the parents estate
L. Components of Wills
1. Integration of Wills
a. Papers that show testamentary intent, but are not included in the will
1) Means not stated in writing/language of the will
b. Many papers, some might not be referred to in the will, but the extraneous
papers might still be part of the will
c. Incorporation by Reference
1) When the will refers to a specific document that contains information about
property to be disposed
d. To be Incorporated into a will
1) Identified as an extension of the will, intent to dispose of property
2) The writing must have been in existence @ the time of the execution of the
will
e. General Rule: You should not be able to continuously add things to will
2. Revival
a. In order for a codicil to republish an earlier will, the earlier will must have been
validly executed
3. Acts of Independent Significance
a. Doctrine that permits extrinsic evidence to identify the will beneficiaries or
property passing under the will
b. If the beneficiary or property designations are identified by acts or events that
have a significance apart from their effect on the will, the gift upheld under this
doctrine
c. A will may dispose of property by reference to acts and events that have a
significance apart from their effect upon the dispositions made by the will
M. Ademption
1. Types
a. Extinction
1) The testator no longer has possession of the gift
b. Satisfaction
1) The gift has already been given to the intended beneficiary during the
executed and the loss of the will did not occur through fraud
a. If the will is in the possession of the testator, but it cannot be found @ the
time of death, it gives rise to the rebuttable presumption that the testator
destroyed the will, thus revoking the will
B. Revival
1. Does the revocation of a later will revive the earlier will?
a. YES, if there is evidence of intent that the testator wishes to revive the earlier
will
b. Minority Rule: There is no revival, unless the earlier will is newly executed
VIII. Non-Probate Transfers and Planning for Incapacity
A. Will Substitutes
1. Life Insurance
a. Contractual agreement
b. Can change the name of the beneficiary in writing
1) Contract describes how the beneficiary is to be changed
2. Pensions
3. Inter Vivos Trusts
a. Settlor, Trustor, Creator,
1) Person who creates the trust
2) Transfers the title/trust property to the trustee
b. Beneficiary
1) Person who benefits from the trust
2) Has equitable title in the property
c. Trust Property
1) Property that is subject to the trust
2) Will a trust fail for lack of property?
a) No, especially if the assets for this trust will flow over from the property
of the estate
d. Trustee
1) Holds legal title
2) Holds the property for the benefit of the beneficiary
3) Has fiduciary duties to the beneficiary
4) Make prudent decisions/investments
5) Impartiality
6) Collecting and protecting the trust property
7) Segregates trust from personal property
8) Powers
a) Decided by statutes
b) Make prudent investments
c) Fee simple owner, but cannot co-mingle property
9) Breached Duty Personally Liable for:
a) Negligence
b) Deals may be invalidated
c) Removed as trustee
e. Takes property out of the probate estate which is costly and time consuming
f. Can be revocable or irrevocable
g. Interest created @ the time the property is delivered to the trustee
4. Testamentary Trusts
5. POD: Payable on Death Accounts
a. Savings
6. Concurrent Ownership
a. With Rights of Survivorship
1) JTWROS
a) Time
b) Title
c) Interest
d) Possession
b. Tenancy by the Entirety
1) Time, Title (Cannot be personal Property), Interest, Possession, Person
(Only available to married persons)
7. General
a. Whether they would be included in the estate
b. Whether they should follow the same provisions detailed in the Wills Act
B. Planning for Incapacity
1. Power of the Attorney
a. Principal gives the agent the authority to act on his or her behalf
1) Terminates upon incapacitation
2) Sometimes done for limited time periods
3) Usually done for financial reasons
4) Done for members of the military
5) Done for physical incapacity
b. Agent owes the principal a fiduciary duty
1) Loyalty
2) Care
3) Obedience
4) Must act on behalf of the principals interest
5) The agent cannot act in self-dealing
6) When the agent dies, the power is terminated, unless the principal has
named someone else to become the agent
2. Durable Power of Attorney
a. Principal gives the agent the authority to act on his or her behalf
b. Endures after incapacitation of the principal
c. In some jurisdictions there is a presumption of this type of power of attorney
unless otherwise stated
1) NY
d. Death of the principal terminates durable power of attorney
e. If the principal becomes competent, the principal may terminate the power of
attorney
3. Advanced Directives
a. Living Will
1) Medical Directive
2) Speaks directly to the medical professionals from the principal
b. Health Care Proxy
1) Durable power for health care decisions
2) Allows the agent to make medical decisions
a) However, the agent has to make decisions that the principal would want
i) May cause issues if the principals intentions are unknown
4. Disposition of the Body
a. Usually goes to the next of kin or spouse
XI. Trusts
A. Future Interests
1. Fee Simple Absolute
a. Highest of the present estates
b. The interest in the property is potentially infinite
c. Most robust bundle of sticks
d. No future interests in this property
2. Fee Simple Determinable
a. Defeasible fee
b. Possibility of reverter retained by grantor
1) Future interest retained in grantor
c. So Long As
unconstitutional
a. Still might violate state or federal statutes
3. The trust can fail if the settlor is a bona fide racist and would prefer that the trust
fail rather than be used by those who were discriminated against
J. Donor
1. The person who creates the power of appointment
K. Donee
1. The person who holds the power
2. Beneficiary
3. Not a trustee in most cases, no fiduciary that attaches
L. General Power of Appointment
1. A power which is exercised in favor of the donee, the estate, his creditors, or the
creditors of his estate
M. Special Powers of Appointment
1. Special Power
a. A power not exercisable in favor of the donee, his estate, his creditors of his
estate
b. Limited power
c. Non-general power
N. Presently Exercisable
1. Deed during life
O. Testamentary Power
1. Created in a will
P. Specific Reference Requirement
1. To prevent an unintentional power of appointment, the donor will sometimes
provide that the power can be exercised only by an instrument executed after
the date of the creating instrument that refers specifically to the power
2. Courts sometimes require this
X. Class Gifts
A. Is the settlor group minded?
1. Evidence of Group Mindedness
a. Specific names indicate dispositions to individuals, not a group of people
B. Class closing
1. When the gift is available for distribution AND
2. When @ least one member of the class qualifies for distribution
3. Result
a. Anyone born at the time the class closes, is considered a member of the class,