TRUSTS AND ESTATES OUTLINE

INTRODUCTION POWER TO TRANSFER PROPERTY AT DEATH Intro – Macro issue is who gets your property when you die? The question of wether and should a decedent have the power to designate property after death raises many public and theoretical policy issues? Public Policy Debate – One argument is power to transfer at death is good and premotes saving and family values, other say it premotes economic disparity and unfairly rewards those lucky enough to be born into wealth. RIGHT TO TRANSFER PROPERTY AT DEATH Power to transfer – decedent has the right to dispose of his or her property at death. Although the states have a broad authority to regulate the process, the states cannot completely abrogate the right. COURSE OVERVIEW Overview – Who takes property depends first on whether the property is nonprobate or probate property. Nonprobate property is limited to 1) property held in joint tenancy 2) life insurance contracts but the modern trend has expanded to include a payable on death clause 3) legal life estates and remainders 4) intervivos trust. Nonprobate property passes through the nonprobate instrument. Probate passes according to the decedencts will or intestacy. THE PROBATE PROCESS: AN OVERVIEW Intestate is the default – decedent must take affirmative steps (execute a valid will or create a valid nonprobate instrument) to avoid having the property pass through intestate. Probate administration – probate court appoints a personal representative. He or she has the job of collecting decedents probates assets, paying creditors, and distributing property to those entitled to it. Notice to Creditors – Most states have nonclaim statutes that impose a shortened statute of limitation on claims against a decedent’s estate. Historically nonclaim statutes required only constructive notice by publication to creditors to bring their claims or be forever barred. Recently SC ruled where a creditor is know or reasonably ascertainable, the due process claus requires actually notice. Cost and delays of probate – Probating a typical estate is a costly process that can take anywhere from one to two years to completer for even simple estates and ties up the decedent’s probate assets during the process. “DEAD HAND” CONTROL “Dead hand” control – Decedent may condition a beneficiaries gift on the beneficiary behaving in a certain manner as long as 1) condition does not violate public policy 2) judicial enforcement does not constitute state action violating constitutionally protected fundamental right. Validity – Dead hand control generally upheld unless the condition constitutes a complete restraint on marriage, requires a beneficiary to practice a certain religion, encourages divorce or family strife, or directs the destruction of property.

ESTATE PLANNING: AN INTRODUCTION Key Objectives – 1) the party’s intent 2) avoiding estate tax 3) avoiding probate PROFESSIONAL RESPONSIBILITIES Common law – Under common law approach the attorney owes no duty of care to, and is not in privity of contract with, intended beneficiaries. Intended beneficiaries have no standing to sue. Modern trend – Modern trend says there is a duty of care to intended beneficiary. Intended beneficiaries are third party beneficiaries with respect to the contract between the attorney and testator. They can sue for malpratice.

INTESTACY: THE DEFAULT DISTRIBUTION SCHEME
THE INTESTATE DISTRIBUTION SCHEME Intro – Defalt distribution scheme isintestacy. If decedent fails to dispose of all of his or her property through a nonprobate office instrument or a valid will, the decedent’s property will pass pursuant to the state’s descent and distribution statute to the decendents heirs. Typical intestate distribution scheme – Basic order of who takes1) surviving spouse 2) issue 3) parents 4) issue of parents 5) grandparents/issue of grandparents 6) next of kin 7) escheats to the state. The amount is usually where it differs state to state. SURVIVING SPOUSE Marriage requirement – term spouse assumes a valid marriage( most states included putative marriage when one spouse believe the marriage is valid but it is void or voidable). Cohabitants don’t qualify unless it is a recognized common law marriage. In the event of legal separation the are still spouses for inheritance purposes until an order of dissolution. SURVIVING SPOUSE: CALCULATING SHARES Typical state statute – Surviving spouse takes 100% of decedent’s intestate property if there is no surviving issue, parent, issue of parents; 50% if decedent has one child (alive or dead but survived by issue) or no surviving issue but surviving parents or issue of parents; 33% decedent has more than one child alive or dead but survived by issue UPC – Surviving spouse takes 100% if no issue or parents or 100% if decedents issue are also from the surviving spouse. DECENDENT/ISSUE: CALCULATING SHARES Calculating share – decendents/issue includes children as well as all of one’s blood descendents. Depending on jurisdiction property is divided per stirpes, per capita , or per capita at each genration Per stirpes – first division occurs at the first generation of issue, whether anyone is alive at that generation or not. One share goes to each living party and one to each dead party if survived by issue. The shares of those who are dead but survived by issue drop by bloodline to their issue. Per capita with representation/modern per stirpes – first division of decedents property always occurs at the at the 1st generation of issue in which there is a live taker. One share goes to each living party and

one to each dead party if survived by issue. The shares of those who are dead but survived by issue drop by bloodline to their issue. Per capita at each generation – 1st dividion of property occurs at the 1st generation of issue in which there is a live taker. One share goes to each living party and one to each dead party if survived by issue. Shares for those that are dead but survived by issue are distributed by the pooling approach. SHARES OF ANCESTORS AND REMOTE COLLATERALS Collateral Relatives – decedent, spouse and issue are immediate family all other relatives are collateral relatives. If there is no issue and property is divided solely among collateral there are three ways it is done. 1) parentelic approach 2) degree of relationship approach 3) degree of relationship with parentelic tie breaker ISSUE: WHO QUALIFIES Qualifying as an issue – parent child relationship means each can inherit through and from each other. Can be established naturally regardless of marriage; by adoption severing the relationship with biological parents; or through equitable adoption. Parents – when the natural parents are married they can inherit through and from each other Adoption – establishes a parent child relationship between the adopted child and adoptive parents. It severs the relationship between the adopted child and their natural parent of the same gender as the adoptive parent. If it is a stepparent the child can inherit through both but the natural parent cannot inherit through the child Equitable adoption – arises when 1) natural and adoptive parents agree on the adoption 2) natural parents perform by giving up custody of the child 3) child performs by moving in with the child 4) the adoptive parents partially perform by taking the child in but failing to complete the adoption 5) adoptive parent dies intestate. Child is entitled to a claim equatl to the intestate share after intestate death. Child born out of wedlock – Child can inherit both from and through the natural parents. If the parents wish to inherit from the child they must claim and support the child. Advancements – at common law inter vivos gifts to a child counted against child’s chare of intestate estate. It does not count under the modern trent unless a contemporenuous gift says so. SURVIVAL REQUIREMENT Survival requirement – at common law to qualify as an heir one had to prove by a preponderance of the evidence that he or she survived the decedent by millisecond. Modern trend some jurisdiction require clear and convincing proof of survival by a millisecond while other require 5 days (120 hours) Survival requirement applies to all parties that claim a right to take by any fashion. BARS TO SUCCESSION Intro – even where an individual is entitled to take from a decedent the taker will be barred from taking under the homicide doctrine or if he or she disclaims Homicide Doctrine – If the taker killed the decedent and it was felonious and intentional, the killer is treated as if he or she predeceased the decedents for distribution purposes. This applies to all types of property. Proof is preponderance of the evidence. Jurisdiction are split on whether or not the issue get it. (SLAYERS RULE) Disclaimer – proper disclaimer of a testamentary gift changes the taker status to that of predeceased.

Slayers Rule – 5/2-6 Persons Causing Death – 5/2-6 – Person who intentionally and unjustifiable causes the death of another cannot not take from the death of that person as an heir, legatee, beneficiary, joint tenant, survivor, appointee, or in an other capacity wether the property, benefit, or other iterest passes pursuant to any form of title registration, testamentary or non-testamentary instrument, intestacy, renunciation or any other circumstance. The interest shall pass as if the person causing death died before decedent. A person convicted of 1st or 2nd degree murder is presumed to have caused the death intentionally and unjustifiably for the purposes of this section. Hold of property subject to the provision of this section are not responsible for distribution of that property prior to a determination under this section. BURDEN OF PROOF IS PREPONDERANCE OF THE EVIDENCE Do killers children take his share? Disclaimer 5/2-7 Disclaimer 5/2-7 – A right to disclaim interest in property. A person to whom property or interest passes may disclaim the property or interest in whole or in part by delivering or filing a written disclaimer as this act provides. Disclaimer may be of a written or fractional share or undivided interest, a specific asset, portion or amount, any limited interest or estate or any property or an interest from right of survivorship. Rep of decedent or ward may disclaim on decedent or wards behalf with permission from the court. Court may approve this disclaimer if it finds that desclaimer benefits estate and all interested parties even if it alters distribution. Approval for a rep of a ward is granted if disclaiming benefits those intested and is not materially detrimental to the ward. If a will or other instrument gives a rep or ward the power to disclaim court permission is not needed. Form of Disclaimer – Disclaimer shall 1) describe what is being disclaimed 2) be signed by disclaimant or their rep 3) declare the disclaimer and extent there off. Delivery of Disclaimer – delivered to the tranferor or donor or his rep, or to trustee or other person who has legal title to the subject of the disclaimer, if none of the foregoing is easily determinable to the person who has title to the property title or interest, is entitlted to, or filed or recorded in accordance with the act.If an interest passes due to death disclaimer may be filed with the clerk of the court in the county in which the estate is processed or will be probated. If the discalaimer applies to an interst in real property the disclaimer may be filed with the office of the recorder or the registrar of deeds. Effects of Disclaimer – Unless expressly provided otherwise in the instrument that created the interest or transfered the property disclaimed, the interest shall be distributed, if a present interest transferred by reason of death as if the discliament predeceased the decedent, if transfer by revocable instrument or contract, as if the discliamant had predecesased the date the maker no longer has the power to transfer the entire legal and equitable ownership in the property or interest, or in the case of other intervivos transfers as if discliamant has predeceased the date of the tansfer. If a future interest, as if disclaimant had predeceased the event which determines the taker of the interest or property or interest has become finally ascertained and his interest has become indefeasibly fixed both in quality and quantity and in each case the disclaimer shall relate back to such date for all purposes. Disclaimer only relates to the specific interest created and not to other interest created in other capacities relating to the same interest. A future interest set to take effect after a disclaimed interest is accelerated as if the discliamant predeceased the disclaimer. Disclaimer is binding and irrevocable and binds all person claiming by, through, or under the disclaimant. Waiver and Bar – Right to disclaim is barred by 1) judicial sale of the property, part or interst before disclaimer is effected 2) an assignment, or transfer by the discliamant 3) written waiver of the right to disclaim 4) acceptance of the interst or property by the disclaimant or representative. There is a

presumption that disclaimer is valid if there is no actual knowledge of the above. Accpetance must be proved. Rules of Descent and Distribution – 5/2-1 – Intestate real and personal property of resident decedent and the intestate real estate of non-resident decedent, after all just claims are fully paid, descends and shall be distributed as follows: (Intestate Succesion – Know what happens when there is no wife or no children and after that) If there is a surving spouse and surving descendent of the decedent: ½ the estate to the spouse and ½ to the descendents per stirpes. If no surviving spouse but a descendent of the decedent, the entire estate passes to the descendents per stirpes If there is a surviving spouse but no descendent of the decedent, the estate goes to the spouse. If no surviving spouse or descendent of decedent but there is a parent, siblings or descendents of siblings the estate passes to them in equal parts. If one parent is dead the other gets a double share. Descendents of a deceased siblings take per stirpes the portion the sibling would take if living. If there is no surviving spouse, descendent, parent, sibling or descendent of sibling, but there is a grandparent or descendent of a grandparent of decedent: 1) ½ the entire estate to decedents maternal grandparents in equal shares or to their survivors and if there are none than to their descendents per stirpes 2) Paternal gradparents and family get the same treatment. If no surviving paternal gradparents or descendents but there is a maternal grandparent or descendent of maternal grandparent, then the entire estate to the maternal grandparent or their survivor in equal shares and if there is none then to their descendents per stirpes. The same for paternal grandparents if there are no surviving maternal grandparents or relatives If there are no survivors of maternal and paternal grand parents, nor any of their descendents that are still alive the same distribution scheme goes to the great grand parents. If after all of the possibilities above have been exhausted and the estate has not been distributed, the estate passes to the in equal parts to the nearest kindred of the decedent in equal degree and without representation If there is no surviving spouse and no known kindred of the decedent, real estate escheats to the county in which it is located. Personal estate located in or out of the state escheats back to the county which decedent resided. If a nonresident, than to the county which it was located. Everything else escheats to the treasurer of this state.

LIMITATIONS TO THE TESTAMENTARY POWER TO THE TRANSFER
SPOUSAL PROTECTION SCHEMES: AN OVERVIEW Intro – Every jurisdiction has limitation in place affecting the power to transfer property. A surviving spouse has a right 1) to support and 2) to a share of the couple’s marital property SURVIVING SPOUSES RIGHT TO SUPPORT Spousal support – In every state, a surviving spouse has a right for support under 1) the ss system 2) private pension plan to ERISA 3) homestead exemption 4) personal property set aside 5) family allowance

SURVIVING SPOUSE’S RIGHT TO A SHARE OF THE MARITAL PROPERTY Separate property v. community property – surviving spouses right to a share of the property depends on whether it is a separate property jurisdiction (elective of forced share) or a community property jurisdiction (part of the com. Property doctrine) Spousal Award – 5/15-1 Spousal Award – 5/15-1 – The surviving spouse of deceased resident of this state, whether the estate is intestate or testate, is allowed as their own property, exempt from the judgment, garnishment or attachment, (?) a sum the court deems reasonable to support the spouse for 9 months after decedent’s death, to keep the surviving spouse in the live style they have become accustomed. Court can also grant the sum of money it deems reasonable for the support of dependent minor and adult children who reside with surviving spouse at the time of decedent’s death. Must be at least 10k for the spouse and 5k for each additional child. Must be paid in no more than 3 installments. If spouse dies before payment in full, remainder goes to the estate. If the spouse dies or abandons the child the unpaid support shall go to the benefit of the child as the court directs. Survivng spouse is entitled to the award unless decedent’s will expressly provides for the surviving spouse in lieu of the award and the surviving spouse does not renounce. Child Award – 5/15-2 Child Award - 5/15-2 – If minor or adult dependent does not reside with surviving spouse at decedents death the child is allowed, exempt from judgment, garnishment, or attachment by rep, enough money to to keep them the life to which they have become accustomed and to the condition of the estate. No less then 5k and as the court directs for the benefit of the child. If there is no surviving spouse the minors and adult dependents also get the 10k that would have gone to the surviving spouse and it shall be devided equally or as the court determines. THE ELECTIVE SHARE DOCTRINE The elective or forced share – surviving spouse is entitled to a share of decedents property regardless of the decedents will. What and how much (usually 1/3) depends on jurisdiction. Traditional approach – at common law the elective share entitles the surviving spouse to a share of the deceased spouse probate estate regardless of the terms of the will. Can be avoided by putting assets into nonprobate arrangements Modern trend – expands the elective share into nonprobate arrangements. Varies depending on jurisdiction as to what nonprobate can be attacked Illusory Test – court analyzes whether the nonprobate arrangement really constituted an inter vivos transfer or whether the decedent retained such an interest in the property that it is more testamentary – subject to elective Present donative intent test – did the deceased spouse have a real and present donative intent at the time he or she created the nonprobate transfer. The focus is on the circumstances of the transfer especially how much of the interest was given away. Intent to defraud test – Did the decedent intend to defraud the surviving spouse of his or her elective share rights in the property. Jurisdictions that follow this are splitt over subjective or objective 1990 UPC augmented estate approach – ref. notes Funding with life estate – when spouse claims an elective share, property given under the will counts first against the elective share. A life estate interest does not count against the elective share.

Exercise the elective share – a personal right only the spouse can claim. If incompetant the spouse’s guardian can with the probates appoval claim it for the spouse Waiver – can waive it inter vivos but it must be in writing, signed, and executed after a fair disclosure of the other party’s financial situation. Right to renounce 5/2-8 (Elective Share) Renounciation of Will by Spouse – 5/2-8 – If will is renounced by testator’s surviving spouse, regardless of the provision for the survicing spouse, the spouse is entitled to the following percentage after payment of all just claims: 1/3 of entire estate if the testaror leaves a descedent or ½ if the testator leaves no descendent To renounce, the testator must file in the court in which the will was admitted to probate a written instrument signed by the spouse declaring the renounciation. Must be filed within 7 months after admission of the will to probate or 2) within time allowed by the court if the spouse files with in the standard 7 months a petition stating litigation that affects the share of the spouse in the estate. This bars claim by the spouse under the will. Upon renounciation the future interest created by the instrument in the surviving spouse are accelerated unless provided as otherwise by the will. If surviving spouse renounces and the legacies to the other persons are thereby diminished or increased in value, the court, upon settlement of the estate shall abate from or add to the legacies in such a manner as to apportion the loss or advantage among the legatees in proportion to the amount and value of their lgacies. COMMUNITY PROPERTY Basics – Property acquired before marriage, by gift, by descent or devise during the marriage is each spouses separate property. Other property acquired during the marriage by either spouse is community property. Each spouse has an undivivded ½ interest in each comm.. property asset. After death of one of the spouses, the surviving spouse owns his or her one-half of each asset and the decedent’s share goes into probate from which it can go to anyone. Migrating Couples – poses some problems 1) property is characterize as separate or comm.. property at the time it is acquired according to the laws of the jurisdiction where the parties are domiciled at the time of acquisition 2) changing domicile dos not change character of property 3) applicable time of death spousal protection approach depends on the coiuple’s domicile at the time of death. Migrating from separate to comm. property – risk is surviving spouse will be underprotected, spousal protection is the comm. approach but if couple spent most of their time in a separate property jurisdiction the risk is the property will be primarily if not exclusively separate property. Quasi-comm property will be treat as comm. property for distribution Migrating from comm. to separate property – risk of over protection. Elective share will be the applicable approach. Risk is the surviving spouse will double dip in the spousal protection schemes. OMITTED /PRETERMITTED SPOUSE Omitted pretermitted spouse doctrine – where an individual executes a valid will, marries and dies, without revoking or revising the will there is a presumption that the testator did not intend to disinherit his spouse. Presumption is rebutable if 1) the will expresses the intent to disinherit that spouse 2) provided for the spouse outside of the will and intends for it to act as a substitute 3) or the spouse waived their right to claim a share of the estate. If not rebutted the spouse receive her intestate share of the probate estate.

Scope – generally courts hold 1) disinheritance clause is not sufficient to constitute an intent to disinherit that spouse 2) a gift in a will to some one who ends up being the decedents spouse generally does not bar the omitted spouse doctrine unless the testator made the gift in contemplation of the beneficiary being his or her spouse. UPC – broadens the evidence that can be used to prove intenetional omission. You can use evidence from 1) the will 2) other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse 3) a general provision in the will that it is effective notwithstanding any subsequent marriage. Limits funding of decedents share to property not devised to decedents issue 1) who were born before the testator married the surviving spouse 2) who were also not issue of the surviving spouse. Revocable trust – some states include property in probate an in revocable inter vivos trust in the omitted spouse doctrine. OMITTED /PRETERMITTED CHILD Omitted or pretermitted child doctrine – where an individual executes a valid will then has a child and dies without revoking or changing the will there is a presumption the testator did not intend to leave him out of a will. The presumption is rebuttable for the same reasons above. Children alive when will executed – some states expand the scope of the omitted child doctrine to include children alive when the will was executed but not named in the will. Some states cover omitted issue of a child who died before the testator Evidence of intent to disinherit – Missouri type statute, the evidence must come directly from the will. MA type statute, extrinisic evidence is admissible to help determine if the disinheritance was intentional Accidentally overlooked – some states provide that if a testator fails to provide for a child because of a mistaken belief in death the child recives the share he would have under omitted child doctrine. Some states also cover a child not provided for in a will because the testator did not know about the child. UPC – only applies to children born or adopted after execution of the will. Evidence of itent to disinherit is limited to the express terms of the will. If testator had no children at the execution, the child is entitled to her intestate share, unless substantially of the property was left to the surviving spouse and the omitted child is the child of the surviving spouse. The omitted child gets an equal share if left out. Covers child thought to be dead but a child that no one knew about. Revocable trust – I som states the omitted child doctrine has been extended to comver both probate property and property in a revocable intervivos trust created by deceased parent Pretermited Child 5/4-10 Effect of Child Born After Will – 5/4-10 – Unless provision in a will is made for a child born after the will es executed or it appears by the will that it was the intention of the testator to disinherit the child, the child is entitled to receive the portion of the estate to which he would be entitled if the testator died intestate and all legacies shall abate proportionally therefore. LIMITATIONS ON CHARITABLE GIFTS Mortmain statutes – statutes that limit testamentary gifts to charitable recipients. Some limited the amount one could give to charitable recipients, others voided gifts within prescribed time period before death. The modern trend embraced by virtually every jurisdition has been to either repeal such statutes or to have the courts hold them invalid under the equal protection clasue

TESTAMENTARY CAPACITY
GENERAL TESTAMENTARY CAPACITY Overview – traditional method of opting out of intestacy is executing a will. The first requirement for creating a valid will is testamentary capacity. The testator must have testamentary capacity at the time he or she executes or revokes a will. Testamentary Capacity – the ability of the testator to know 1) nature and extent of his property 2) natural objects of his or her bounty 3) nature of the testamentary act being performed 4) how all of these relate to constiture an orderly plan of disposing of his or her property. Absent evidence to the contrary there is a strong presumption of testamentary capacity Defects in capacity – if the will or any part is caused by a defect in capacity (insane delusion, undue influence, or fraud) the court will strike as much of the will as was affected by the defect. Capacity of Testator - 5/4-1 Capacity of testator – 5/4-1 – Every person who is 18, is of sound mind and memory can bequeath by will his real and personal estate at the time of death. INSANE DELUSION Defined – a false perception of reality that the testator adheres to against all reason and evidence to the contrary. Majority approach – if a rational person could not reach the same conclusion under the circumstances, the belief is an insane delusion Minority view – if there is any factual basis to support the belief, the belief is not an insane delusion (more protective of the testator’s intent) Causation – the delusion must cause the testators to dispose of their property in a way that he or she would not have done otherwise. Some jurisdiction apply “might have affected” and others apply “but for” approach UNDUE INFLUENCE Defined – when another substitutes his or her intent for the testators intent and where there is coercion (typically mental or emotional not physical) Traditional rule statement – P bears the burden of proving 1) testator was susceptible 2) defendant had the opportunity 3) defendant had a motive 4) causation Presumption doctrine – If P meets the requirment of the presumption doctrine the burden will shift and the influencer will have to show there was no undue influence. Presumption doctrine if P can prove 1) d and testator were in a confidential relationship 2) testator was of weakened intellect 3) D takes the buld of testator’s estate. The presumption of undue influence will arise and the burden will shift to the D to rebut the presumption. No contest clauses – if testator expect that some one will challenge their will the testator can include a clause that provides that if the beneficiary challenges the will or any provision, the beneficiary is barred from taking under the will. Generally valid but narrowly construed. Some jurisdiction will not support the clause if there is probable cause that it is invalid while others will not enforce the clause if 1) there is reasonable cause to support the claim 2) the challenge is based on a claim of forgery, revocation, or misconduct by a witness or the drafter.

Gifts to drafting attorney – any time an attorney who drafts an instrument receives a substantial gift under it, a presumption of undue influence arises unless the attorney is related to or married to the client. Most jurisdiction reguire clear and convincing evidence that the gift was the true intent. FRAUD Rule statement – an intentional misrepresentation, made knowingly and purposely to influence the testator’s testamentary scheme, that causes the testator to dispose of his or her property in a way in which he or she would not have done otherwise. There are two types of fraud. Fraud in the execution – a person intentionally misrepresents the nature of the document that the testator is signing Fraud in the inducement – a person intentionally misrepresents a fact to the testator to induce the testator to execute a will ( or to amend or revoke a will) in reliance upon that misrepresentation Tortious interference – tortuous interferance with an expectancy is a tort action. P still has to prove fraud or undue influence. This can be a way around challenge clauses.

WILLS EXECUTION, REVOCATION AND SCOPE
EXECUTING A VALID WILL Overview – Asuming testamentary capacity, the next requirement for a valid will is proper execution. Proper execution is a function of two variables 1) the jurisdictions Wills Act formalities 2) how strictly the courts require the testator to compy with those formalities COMMON LAW APPROACH TO ATTESTED WILLS Attested wills – three basic requirements for an attested will are that it is a writing that is signed and witnessed. Each jurisdiction adds another requirements found in the jurisdictions Wills Act. Judicial approach - Traditionally strict compliace has been required. Strcit compliance is 100% absolute compliance. Regardless of how clear intent is the slightest error will invalidate the will Typical statutory requirements – common to most states Signature – anything testator intends to be his or her signature will constitute his or her signature. Most states permit another to sign for the testator as long as it is made in the testators presence and at the direction Witness – must sign or acknowledge their signature in the presence of two witnesses present at the same time. The witnesses must sign the will Presence – one must perform in the presence of another party. Testator in thte presence of witnesses and witnesses in the presence of testator. Must be capable of seeing the act performed if looking while it is performed (line of sight approach) Consiousness approach, must understand the act is being performed. Order of signing – many courts hold there is an implicit order of signing requirement in that the testator must perform before either of the witnesses can sign. Modern trend is that it does not matter as long as it is part of one transaction Writing below attestation – the validity of writing below the signatures depends on 1) whether the state requires the testator and/or witness to suscribe the will and 2) if the will need not be signed at the end, the validityof the writing depends on when the git was added to the will

Delayed attestation – the witness had to sign immediately after the testator signed or acknowledged the will. Modern trend is a delay is ok as long as the witnesses sign within a reasonable time of the testator signing or acknowledging Interest witness – If a witness to a will takes under that will there is a conflict of interest. At common law the whole will was void. Some jurisdictions void the gift, others purge the interested witness of the excess interest that he or she would take and some say it creats a presumption of wrongdoing that must be overcome and purge it if it cannot be overcome. Swapped wills – two testators with the same scheme sign each others wills by mistake nder the modern trend the instrument may be probated under scrivener’s error. MODERN TREND APPROACH TO ATTESTED WILLS Overview – modern trend is to facilitate the execution of attested wills by reducting the number of statutory requirements and or by reducing the degree of compliance the courts require with respect to execution UPC execution requirements – Acknowledgement – if testator uses the acknowledgement method of execution the testator ca acknowledge either signature or the will in front of the witness. Witness present at the same time – doesn’t have to be at the same time the testator can sign or acknowledge infront of each witness separately Conscious presence – when another signs for the testator the conscious presence approach applies to the requirement that the party sign in the testator’s presence and at his direction Writing below signature – witness or testator is not requited to suscribe the will Delayed attestation – witness may sign the will with in a reasonable time after witnessing the testator sign or acknowledge. UPC Judicial approach – repudiates strict compliance. Origianally advocated substantial compliance but now it advocates the harmless error/dispensing power approach Substantial compliance – a will is properly executed as long as 1) there is clear and convincing evidence that the testator intended the document to be their will 2) there is clear and convincing evidence that the testator substantially complied with the Wills Act formalities Harmless error/dispensing power – hold the will was properly executed as long as there is clear and convincing evidence that the testator intended the document to be his or her will Interested witness – doesn’t exist under the UPC Signing and Attestation Signing and Attestation – 5/4-3 – Every will shall be in writing, signed by testator or by someone in his presence at his direction and attested in the presence of the testator by 2 or more credible witnesses A will that classifies as an international will under the Unifor International Wills Act is considered to meet the requirement of subsection (a). HOLOGRAPHIC WILLS Rule statement – holographic will need not be witnessed but, 1) there must be a writing 2) the writing has to be in the testators handwriting (either completely or at least the material provisions – split) the writing must be signed by the testator 4) writing must express testamentary intent. Some jurisdiction require a dated document. SCOPE OF THE WILL

Intro – there are a handful of doctrines that define the scope of a will and permit intent not expressed in a will to be given effect Intergration – those pieces of paper physically present when the will is executed and that the testator intends to be a part of the will constitute the pages of a will Republication of codicil – a codicil has the effect of reexecuting, republishing, and thus redating the underlying will, but if redating the underliying will seems inconsistent with testator’s intent the courts do not have to redate the will. Incorporation by reference – may be done if the will expresses intent to incorporate the document 2) the will describes the document with reasonable certainty 3) the doc. Was in existence at the time the will was executed. Facts of independent significance – a will may refer to a fact or event that is to occur outside of the will, that fact or event may control with who takes under the will or how much a beneficiary takes, as long as the referenced fact has its own significance independent of it’s effect upon the will. REVOCATION Intro – a valid executed will attested or holographic can be revoked by act, by writing if it qualifies as a will, by presumption, or by law Rev. by act – 1) the act is destructive by nature 2) testator has the intent to revoke when the act is performed. Can be performed by someone else along it is in the testators presence and at their direction. At common law the act had to affect some of the words of the will. Not so under the modern trend, just part of the will. Rev. by writing – if the writing qualifies as a will either attested or holographic it acts as a revocation. A subsequent will can revoke a prior will either expressly or implicitly through inconsistantcy, either in whole or in part, which is a codicil Rev. by presumption – where a will was last in the teatators possession and cannot be found after the testator’s death a presumption arises that the testator revoked the will by act. The presumption can be rebutted if the proponenets prove by a prepnderance of the evidence that a more plausible explanation exists for why the will cannot be found. If rebutted the will is not revoked and it will be probated under the lost will doctrine if its terms can be established by clear and convincing evidence. Extrinsic evidence is used to determine the provision of the will. Partial rev. by act – jurisdiction are split over whether to permit partial revocation by act because of the potential for fraud because partial revocation is intrinsically a new gift. Revival – English approach will #2 never revoked will #1 so when #2 is revoked will #1 is uncovered. Majority in America #2 revokes #1 when it is executed. Jurisdictions are splitt over what it takes to revive #1. Jurisdiction are split on the requirements for revival. Some require the will be reexecuted while some only require the intent to revive #1. Key is how it is revoked, if by act any evidence of intent to revive is acceptable. By writing (3#) must be expressed in #3 Dependent relative revocation – even when properly revoked if 1) testator revoked the will in whole or in part 2) based upon a mistake 3) the testator would not have revoked for the mistake the revocation will not be given effect under the dependent relative revocation. Courts require that either 4A) the mistake must be set forth in the revoking instrument and be beyond the testator’s knowledge or 4b) there must be a failed alternative scheme Revocation by operation of law – where the testator divorces, all provisions of the wil in favor of the x spouse are automatically revoked by operation of law. In some jurisdictions it this applies to x spouse’s family members and to nonprobate instruments. Revocation of wills – 5/4-7

Revocation – Revival – 5/4-7 – Will may be revoked only 1) by burning, canceling, tearing, or obliterating it by testator or some person in his presence under his direction, 2) by execution of a later will declaring revocation 3) by a later will to the extent that it is inconsistent with the prior will 4) execution of an instrument declaring the revocation and signed and attested to in accordance with precedure for signing and attestation of a will. No will or any part of a will is revoked by change in circumstances, condition of marital status of testator except in the case of dissolution of marriage or declaration of invalidity of marriage, in which case the will takes effect as if the ex-spouse had died before the testator. Will must have been executed before dissolution. A will wich is totally revoked is not revived other than by re-execution or by an instrument declaring its revival and signed and attested to in accordance with this act. If a will is partially revoked by an instrument, which is itself revoked, the reoked part of the will is revived and takes effects as if there had been no revocation. CONTRACTS CONCERNING WILLS Contracts relating to wills – a person may contract to execute a particular will, make a particular devise, or not to revoke a particular will or devise. If it is a valid contract it will be enforced against the estate before the estates is distributed Under the modern approach the contract has to be in writing for it to modify the will. Under the common law it did not. If not in writing there may be a claim for quantum meruit for services rendered. Joint/mutual will – joint will is a will executed by two different people that each intends to constitute his or her will. Mutual wills are separate wills that have the same basic dispositive sheme. Joint or mutual will do not give rise to even a presumption of a contract not to revoke, it must be expressed. Where there is a contract not to revoke it typically applies to all property acquired by either spouse and the surviving party has a life estate with a right to reasonable consumption. Courts are split whether the beneficiaries must sirvive the passage of time. Contract rights v. spousal protection rights –

CONSTRUING WILLS
ADMISSIBILITY OF EXTRINSIC EVIDENCE GENERAL RULE Over view – assuming a properly executed will upon the testator’s death it has to be probated. Probating a will means construing and giving effects to its provisions Admisibility of extrinsic evidence – starting assumption is the will is the best evidence of the testators intent and extrinsic evidence should not be admissiable to vary its meaning. It is admissible only if there is an ambiguity in the will. Modern trend – courts have repudiated the plain meaning rule and take evidence of the circumstances surronding the testator at the time he or she executed the will to help determine if there is an ambiguity in the will. Abolished the distinction between latent and patent ambiguities admitting extrinsic evidence anytime there is ambiguity. Ambiguity is language in the will that is reasonably susceptible to two or more interpretations. Only extrinsic evidence that is consistent with one of the reasonable interpretations is admissible to help construe the ambiguity

Personal Usage Rule – where a testator uses a personal phrase or name to refer to a person and it is in the will extrinsic evidence is admissible to show testator used that name to mean something different. (Common Law) SCRIVENERS ERROR Rule – if there is a clear and convincing evidence of a scrivner’s error, and clear and convincing evidence of its effect upon testator’s intent, extrinsic evidence is admissible to establish and to correct the error CHANGES IN TESTATOR’S PROPERTY Types of gifts – 3 different types made in a will 1) specific gift is where a testator intends to give a specific item 2) general gift is a gift of a general pecuniary value, where any item or items matching the gift will satisfy the gift 3) demonstrative is a general gift from a specific source and they are a subset of general gifts 4) residuary gift is a gift or all the testator’s property that he have not given away specifically or generally. Ademption – under common law if testator makes a specific gift and the item that is the gift is not part of the estate at the time of death, under identity approach irrebuttable presumption arises that the gift was revoked and the beneficiary takes nothing. Under the UPC a presumption arises that the gift was revoked and the beneficiary is entitled to any replacement property the testator owns at time of death if none the monetary equivalent Avoidance doctrines – dealing with the harshness of ademption 1) classify the gift as general, not specific 2) if still in testator’s estate but it has changed argue that the change is merely one in form not substance entiting the beneficiary to the item 3) construe the will at time of death not execution an give the beneficiary the matching item in testator’s estate at death even of that is not the item to which the testator was referring when the will was executed Softening doctrines – 1) if as a result of the transfer of the item that was the subject of the specific gift, the testator is owed and outstanding balance, the balance goes to beneficiary 2) if the specific gift was transferred while a conservator or durable power of attorney agent was acting ro the testator the beneficiary wi entitled to the monetary equivalent of the net sale price UPC – where a specific gift is no longer in the testator’s estate, the gift should not be adeemed. If testator has acquired property to replace the original specific gift the beneficiary gets replacement property. If replace property is not acquired, beneficiary is entitled to monetary equivalent unless it is inconsistent with testator’s will Stocks – Common law the beneficiary got the benefit of any change between time of execution and time of death if a specific gift. Modern trend is to presume gift was in a percentage and that translates to a gift of the change as well. Satisfaction – common law if beneficiary under a will receives an inter vivos gift from the testator of the same type of property as the gift in the will, and beneficiary is testator’s child rebuttable presumption arises that the inter vivos gifts counts against the childs testamentary gift. Under the UPC if testator makes an inter vivos gift to any beneficiary of the will the gift does not count against the beneficiary unless a writing says so. If the donor creates the writing it must be contemporaneous with the gift if the donee creates it can happen anytime. Abatement – more gifts than assets the doctrine of abatement states residuary gifts are reduced first, general gifts second, and specific gifts last. States permit interpretation if it appears against testamentary scheme

Exoneration of liens – at common law if a specific gift is burdened with debt the beneficiary should get the gift free and clear by using the residuary if possible. The modern approach says you get the gift as is unless a clause says otherwise. CHANGES IN THE BENEFICIARY Lapse – when a beneficiary predeceases the testator, the gift is said to lapse and fail Failed Gifts – fall to the residuary clause, if there is one and if not to intestacy. Failed residuary gifts fall to intestacy. Under the modern trend if part of a residuary failed it goes to the other residuary takers Anti-lapse – may save a gift that would otherwise lapse and fail, where there is a lapsed gift 1) the predeceased beneficiary meets the requisite degree of relationship to the testator and 2) the predeceased beneficiary has issue who survive the testator then 3) the gift to the predeceased beneficiary will go to the issue of the predeceased beneficiary 4) as long as the will does not express an intent that anti-lapse should not be applied Spouse excluded – does not apply to spouses because the spouse does not meet the requisite degree of relationship requiremet Class gifts – a built in right of survivorship. There are 4 factors used to determine if it is a class gift 1) how the beneficiaries are described 2) how the gift is described 3) whether all the individuals share a common characteristic 4) testator’s overall testamentary scheme Anti-lapse and class gift – Modern trend is to apply antilapse first giving it to the deceased’s issue before appling class gift docrtrine and giving it other members of the class. Lapse – 5/4-11(?) Legacy to a Deceased legatee – 5/4-11 – Unless testator expressly provides otherwise in their will a) if legacy of present of future interest is to descendent of testator who dies before or after testator the living descendents of legatee at the time the legacy is to take effect in possession and enjoyment take per stirpes b) if legacy is to a class and any member of the class dies before before or after the testator, the remaining members living when the legacy is to take effect, take the share or shares the deceased member would have taken. The exception is if the deceased member is descendent of the testator, decendents of deceased class member take per stirpes c) except as provided in a) and b) if the legacy lapses because of death of legatee before testator, the share shall pass to the residue under the will and those who take from the residue shall take from the share proportionally to their respective interest. Does not apply to future interest which becomes indefeasibly vested at testator’s death or at any time there after before it becomes effective in possession and enjoyment. Per Stirpes passes down till it goes no further than it passes up how? Is it to the biological parents or both sets of parents?

NONPROBATE TRANSFERS: `TUTES
INTER VIVOS GIFT Intro – where one gifts their property while still alive the donor typically retains no interest that will pass into the donor’s probate estate upon death. Valid inter vivos gift requires intent to presently relinquish dominion and control over the item and delivery. Generally delivery must be actual if possible, but if impossible or impracticable it may be symbolic or constructive. If it is real property there should be a writing complying with SOF in not the gift may still be enforceable under partial performance

Gift Causa Mortis – inter vivos gifts made in contemplation of impending death. Gift is conditional, donor intends that the gift is automatically revoked if donor does not die as expected, gift is revocable while donor is alive, donee must survive the donor, creditors may reach the property if donor’s estate is insufficient to satisfy their claim. OVERVIEW TO NONPROBATE TRANSFER Intro – can opt out of intestacy by 1) executing a valid will 2) creting a valid nonprobate instrument. CONTRACTS WITH PAYABLE ON DEATH CLAUSES Common Law – the only type of contract with a payable on death clause that qualified as valid nonprobate transfer was a life insurance contract Modern Trend – expands the life insurance nonprobate exception to include all third party beneficiary contracts with payable on death clauses. MULTIPLE PARTY BANK ACCOUNTS Multiple party bank account – traditionally banks forced parties interested in creating multiple party back accounts into joint tenancy accounts. Three possible intent parties may have when creating the account 1) true joint tenancy 2) an agency account 3) payable on death account. Upon death of one party court uses extrinsic evidence of parties true intent and treat the property accordingly if there is clear and convincing evidence of an intent other than joint tenancy. Modern trend is parties own in proportion to their contribution and there is a right of survivorship. Presumption can be rebutted if there is clear and convincing evidence of a different intent and that intent will control disposition of funds. Totten Trust – precursor to the payable on death account, they arose when depositor took title to the account in trust for benefit of others. Revocable in most jurisdictions and withdrawls by depositor or allowed. Beneficiary has to survive the depositor and depositor can devise subject to totten trust JOINT TENNANCIES Joint Tennancies – right of survivorship, upon the death of one tennat their share is extinguished and the share of the remaining joint tenants are recalculated. No property is passed at death, so nothing passes through probate. REVOCABLE DEEDS Revocable deeds – functions like a will and as such at common law they were seen as invalid attempts at avoiding the Wills Act. Modern trend generally holds them as valid will substitutes INTER VIVOS TRUSTS Intro – Trustee holds legal title. Beneficiaries hold equitable title. Even if revocable and settlor is life beneficiary no need to transfer legal title on death of settlor. Property in the trust passes pursuant to the terms of the trust outside of probate. POUR OVER WILLS

Intro – pour over will and trust combo is the most popular estate planning scheme today, thought the property pouring over from the estate to the trust does not avoid probate. Where will has a pour over clause giving probate property to trustee of testators separate trust, pour over clause may be validated by either incorporation by reference, facts of independent legal significance, or Uniform Testamentary Additions to Trusts Act Facts of independent significance – must have its own significance independent of its effect upon the decedent’s probate estate. Trust must be funded intervivos and have property in it when the testator dies. Incorporation by reference – trust instrument is being incorporated by reference into the will. Trust instrument must be inexistence when the will is executed. Doesn’t have to be funded intervivos but the trust created is a testamentary trust subject to probate court supervision for the duration of its life. Subsequent amendment must have a codicil UTATA PLANNING FOR THE POSSIBILITY OF INCAPACITY Overview – most common tool with respect to property is power of attorney and in cases of personal decisions about ones health either a living will or power of attorney for health care decisions

TRUST: CREATION, LIFE, AND TERMINATION
INTRO: CONCEPTUAL OVERVIEW Bifurcated gift – a trust. One party (settlor) gives property to a second party (trustee) to hold and manage for the benefit of a 3rd party (beneficiary). Trustee holds legal title to trust property and manages it. Beneficiary hold equitable title. Trustee owes fiduciary duty to beneficiary to manage in beneficiary’s best interest. Same party can be settlor, trustee, and beneficiary as long as there is a cotrustee or beneficiary. Trust is created when it is funded. Will not fail for lack of trustee, will be court appointed if necessary. Trust is an ongoing gift that can last for decades. Meaning trust property is bifurcated between income and principle, the equitable interest typically is bifurcated between the beneficiary who holds the possesory estate (typicallay a life estate) and the beneficiaries who holds the future interest (typically remainder) REEQUIREMENT TO CREATE A VALID TRUST Trust Requirements – 1) settlor must have intent to create a trust 2) trust must be funded 3) must have ascertainable beneficiaries 4) terms of trust may have to be in writing Remedial Trust – Constructive trust and resulting trust are remedial trust that arise from operation of law as a matter of equity, not subject to traditional trust requirements. Constructive trust are imposed usually to prevent unjust enrichment. Court will order party holding title to transfer title to the party the court determines is entitled to the property. Resulting trust when ever a trust fails in whole or in part. Court orders property transferred back to the settlor or settlor’s estate. (can only a part of thte trust be deemed invalid without destroying the entire trust?) Intent – Intent to create arises anytime one party transfers property to 2nd party for the benefit of 3rd party. Use of term of art such as trust, trustee or intrust is enough to demonstrate intent. Precatory trust – a donor makes a gift to a donee with wish or hope the property will be used for the benefit of another. Not a trust, no legal obligation to us the property for the benefit of a 3rd party. Only moral obligation.

Gifts that fail for want of delivery – Intent to make a gift in the future without actually making that gift cannot be converted into a present declaration to create a trust with declarant as trustee Funding – trust is funded when property is transferred to the trust/trustee. Almost any property interest qualifies except for future profits and expectancies. Ascertainable beneficiaries – if identified by name or there is an objective method of identifying the beneficiaries. Exception is for unborn children, court will monitor trustee’s action. Honorary trust – would otherwise fail but the purpose is such that it is impossible to have ascertainable beneficiaries and purpose is specific and honorable and not capricious or illegal. Will continue as long as the trustee agrees to honor the trust. Vulnerable to the rule against perpetuities Writing – terms must be in writing if 1) it is inter vivos and includes real property and 2) it is testamentary Remedy – failed inter vivos trust – Settlor and trustee orally agree to transfer property to trust, deed is silent about transfer, trust fails for want of writing. Common law trustee kept the property are their own. Modern trend constructive trust is imposed to prevent unjust enrichment (particularly where the trustee procured the transfer as a resulf or fraud, undue influence, or trustee stood in a confidential relationship with donor). Trustee order to transfer property to intended beneficiaries. Remedy – failed testamentary trust – Beneficiary under the will agrees to hold property in question for the benefit of others but the terms of the testamentary trust are not in the will or incorporated by reference, testamentary trust fails for lack want of writing. Common law approach, key is whether the trust is secret or semi-secret. Secret trust is one in which the face of the will makes not mention of the trust or terms. When it is secret, constructive trust is imposed and intented beneficiary takes receives property. Semi-secret trust is when the will hints at or expreses testator’s intent that the beneficiary is to take for the benefit of others but identity and trust beneficiaries are not set forth in terms that can be given effect. Common law leads to a resulting trust and modern approach lead to a constructive trust. LIFE OF TRUST : EXTENT OF BENEFICIARIES’ INTEREST Trust life – once a trust is validly created, primary issue is extent of beneficiaries interest during the life of the trust. Each beneficiary can have a mandatory or discretionary interest and can be in the income or the principle Mandatory trust – the trust is mandatory if the trustee must distribute all of the income to a beneficiary on a regular basis. Discretionary trust – when the trustee has discretion when to distribute the income and/or principal. Because of trustees fiduciary duty, trustee has a duty to inquire and act in good faith while exercising discretion. Generally, attempts to give a trustee sole control are invalid. In excercising discretion trustee should take into account settlers intent in setting up the trust and purpose of beneficiaries interest. Spray/sprinkle trust – the trustee must distribute all of the income among of group of beneficiaries and has discretion as to how uch each beneficiary is to take. LIFE OF TRUST: CREDITORS RIGHTS/SPENDTHRIFT CLAUSES Creditors rights – depend on whether the creditor is a creditor of 1) a beneficiary other than the settlor 2) a beneficiary who is also the settlor Creditors of beneficiaries not the settlor – steps into beneficiaries shoes and acquires the exact same rights beneficiary had. If mandatory, creditor has same right to receive that property. If beneficiaries interest were discretionary, cannot force the trustee to execrcise his or her discretion. Spendthrift trust – contains a clause that prohibits beneficiary from transferring their interest. If there is spendthrift clause generally creditors cannot reach the beneficiaries interest.

Exceptions – Generally children entitled to child support, ex-spouses entitled to alimony, creditors providing basic necessities, gov. entitled to taxes not excluded by spendthrift clause and step into beneficiary’s shoes. Can reach it if it is mandatory but cannot force a trustee to exercise discretion. Support trust – requires trustee to pay as much income (and if expressly provided in the trust, principal as well) as necessary for beneficiaries support and education. (What is necessary?) Can only transfer as much as necessary for support. Beneficiary cannot transfer interest in a support clause even without spendthift clause. Only creditors who provide basic necessities are entitled to reach the beneficiaries interest. Creditors of beneficiaries who is also the settlor – against public policy to permit one to shield its assets from creditors. Creditors of a beneficiary who is also the settlor can reach beneficiaries interest in the trust to the full extent that trustee could use the trust property for the benefit of the beneficiary/settlor. Spendthrift clauses in favor of a beneficiary who is also the settlor are null and void. TRUST MODIFICATION AND TERMINATION Intro – Trust ends when all trust principal is disbursed pursuant to terms of trust. Under special circumstances term of the trust may be modified or trust may be terminated prematurely. Assumes irrevocable trust. If it were revocable modification would only have to revoke. Revocability – if silent as to revocability in almost all states it is irrevocable. If revocable. If revocable and it expressly provides for a particular method of revocation, only that method will suffice. If revocable and does not provide for a particular method of revocation any method that adequately demonstrates the settlor’s intent to revoke should suffice. Settlor and beneficiaries consent – if settlor and all beneficiaries consent trust can be modified or terminated regardless of trustee’s objections. Securing consent of all beneficiaries – if beneficiaries are minors or are unborn can attempt to secure consent by petitioning the court to appoint a guardian ad litem to represent minor or unborn beneficiaries. Can attempt to secure consent by the doctrine of virtual representation. If minor or unborn child’s interest are virtually identical to a living adult beneficiary court may permit latter to represent former. Trustee and beneficiaries consent – if trustee and beneficiary consent, trust can be modified or terminated regardless of settlor’s objections. Beneficiaries consent but trustee objects – beneficiaries can overcome trustee’s objections under limited circumstance Termination – Clafilin Doctrine – common law courts would order a trust to be terminated prematurely even if trustee objected if 1) all beneficiaries consent 2) no unfulfilled material purpose. Material purpose is fact sensitive and turns on the purpose and wording of each trust. There are a handful of trust purposes that almost all courts have held to constitute unfulfilled material purpose:1) discretionary trust 2) spendthrift trust 3) support trust 4) trust in which the property is not to be distributed to beneficiary until they reach a specific age. Modification – common law courts order terms of a trust to be modified if 1) all beneficiaries consented 2) unforeseen change in circumstances that materially frustrated settlor’s intent. Trust would be modified to promote settlor’s presumed intent under circumstances. “Unforseen” and “materially frustrated construed narrowly to protect settlor’s intent. Modern trend construes broadly to give beneficiaries greater contol of trust property.

CHARITABLE TRUSTS
CHARITABLE PURPOSE

Charitable trust – has charitable purpose. A purpose is charitable if it is for 1) relief of poverty 2) advancement of education 3) advancement of religion 4) promotions of health 5) gov. or municipal purposes 6) any other purpose the accomplishment of which is beneficial to the community at large. Benevolent trust, trust that perform kind acts, are not charitable trusts unless they accomplish one to the specific charitable purposes Benefits – two advantages to classifying a trust as charitable. Not subject to the Rule Against Perpetuities – because they serve charitable purposes to the community at large. No ascertainable beneficiaries requirement – they must serve the community at large or a good portion. Cannot have ascertainable beneficiaries because it defeats their purpose. CY PRES Rule Statement – where a trust with a general charitable purpose expresses a particular charitable purpose and it becomes impossible, impractical, or illegal to carry out, modify the particular purpose to particular charitable purpose with in general charitable purpose. (How can you modify charitable trust?) Administrative deviation – If accomplishing purpose becomes impossible or impractical for administrative reasons, courts can order and should apply administrative deviation to remove the obstacle before modifying settlor’s intent under cy pres. ENFORCING THE TERMS OF A CHARITABLE TRUST Enforcing charitable trust terms – State AG has duty of supervising administration of each charitable trust. Stading grated to member of community to sue because most AG office are swamped.

POWERS OF APPOINTMENT: DISCRETIONARY FLEXIBILITY
INTRODUCTION Power of appointment – adds flexibility to administration of a trust. Similar to a power to revoke in the hands of a beneficiary other than settlor. Gives donee power to override distributive terms of trust and direct trustee to distribute all of trust to appointees. Generally power is discretionary and there is no fiduciary duty on the party that holds. Party holding the power has discretion to change distributive provision by overriding original terms. General Power – a power is a general power if the group of appointees in whose favor the power can be exercised includes either the donee, the donee’s estate, donee’s creditor, or creditors of the donee’s estate. Special power – a power is a special power if the group of appointees in whose favor the power can be exercised excludes the donee, the donee’s estate, the donee’s creditors, and creditors of donee’s estate. Inter vivos v. Testamentary – donor can specify when the power can be exercised. Only inter vivos, only upon donee’s death (testamentary) or either. Creditors rights – If it is a special power donee is treated like an agent and creditors of the donee have no right to reach the property subject to the power. If it is general, donor’s creation of the power is treated like an offer to make a gift to the donee. If donee exercises the power, donee is treated as having accepted the gift and creditors of the donee can reach the property of to whom it was appointed. If it has not been exercised creditors of the donee cannot reach it.

CREATING POWER OF APPOINTMENT Intent to create – if one party attempts to give another party power to appoint property, no technical words are necessary to create power Power to consume – if beneficiary is given life estate and power to consume, power to consume deemed general power of appointment unless limited to ascertainable standing relating to health, education, support, or maintenance of the holder of the power to consume RELEASING A POWER OF APPOINTMENT Release – Donee may release a power of appointment in part or in whole, either in whose favor the property may be appointed or when the powermay exercised Inter vivos exercise of testamentary power v. release – testamentary power of appointment can be exercised only upon donee’s death. Inter vivos attempt is invalid, so is an intervivos contract as to how donee will exercise the power at death. If inter vivos contract is substantially similar to the release of power many courts will enforce as an inter vivos release as testamentary power. EXERCISING OF POWER OF APPOINTMENT Exercise – power is exercised anytime donee intends to exercise the power. Instrument creating the power may stipulate how express donee must be to exercise the power. Testamentary power and residuary clauses – if testator holds a testamentary powerof appointment and their residuary clause makes no express reference to a power of appointment jurisdictions are split as to whether the residuary clause exercises the power. Majority rule – majority rule is that standard residuary clause does nto exercise either a general or special testamentary power. Some jurisdiction hold where testator held testamentary power of appointment there is sufficient ambiguity to admit extrinsic evidence to determine whether testator intended residuary clause to exercise the power. Minority rule – minority of states, standard residuary clause adequately expresses the testator’s intent to exercise a general power of appointment that testator held but not a special power of appointment. UPC – standard residuary clause expresses intent to exercise a power of appointment the testator held only if 1) power is a general power of appointment and creating instrument does not contain an express gift over in the event the power is not exercised or 2) testator’s will manifests an intention to include the property subject to the power. Blended residuary clause – many residuary clauses include a generic reference to any power of appointment the testator may hold. Where instrument creating power does not require a specific reference to the power. Jurisdictions are split. UPC requires it to be specific Lapse and anti-lapse – If testamentary power is properly exercised but appointee predeceases the donee application of anti-lapse turns on the type of power. When it is a general power of appointment courts apply antilapse – if appointee meets degree of relationship with donee. When it is a special power of appointment traditional approach is not to apply antilapse if the issue of predeceased appointee are not eligible members under the instrument creating the power. Modern trend applies antilapse to issue even if they are not members. Limitations – general powers of appointment can be exercised as the donee sees fit ( outright in trust, or even subject to a new power of appointment, generally absent the authority in the instrument creating the power to do otherwise, holder of special power must appoint to the property outright. Modern trend permits holder of special power to appoint either in trust or subject to a new power as long as both the donee and the objects of the new power were included in the original class of possible appointees.

CONSTRUING TRUSTS: FUTURE INTEREST AND CLASS GIFTS
POSSESORY ESTATES 5 Free Hold Estates: there is ownership (seisin) Fee Simple Absolute Fee Tail Life Estate Fee Simple Determinable Fee Simple Subject to a condition Subsequent FEE SIMPLE ABSLOLUTE FSA: ownership without qualifications owner has a right to: posses forever transfer (convey) devise  leave in a will requires: Words of Purchase: “To A” Words of Limitation: “and his Heirs” order of the words is important “to the heirs of A”  diff result Modern Law : “To A” is enough to convey a FSA A deed is construed to pass the largest estate Intestacy Law: is applied when there is no will describes how property is distributed if there is intestate * Heir: (does not take under a will) Those who succeed to the property of the intestate decedent  are decide under States Statutes of Intestacy Typical Probate Code Spouse  Children Parentssiblings collateral relatives Issue: synonymous with “lineal descendants” children grantchildren Per Stirpes Distribution: is the general rule that if a child pre-deceases the intestate (but has their own children) children of the heir stand in their parents shoes ex: O dies leaves no spouse, a child A and a Child B. B predeceases O but has Kids. A and B’s children divide the property

children out of Wedlock: Modern law is they can inherit from their Mother and the Father (if proved) Primogeniture: (never the law in the U.S) oldest sone inherits if he predeceases then his oldest son FEE TAIL FT: develops as a way to keep property in the hands of a certain people * “to A and the heirs of his body” grants a life estate to the grantee followed by a life estate in their children until no more children only inheritable by the grantees issue (no collateral kin) there is reversion FI in the grantor when the fee tail expires Disentail: the FT is only in 4 states but at anytime the FT can disentail and become a FSA by deed Abolition of the Fee Tail: What happens today if there is language of a Fee Tail? Minority: A takes a life estate with a remainder to A’s issue in FS Majority: ½ : A takes a FSA idea that A can disentail at anytime so it should be treated that way ½ : A takes a FS but a remainder if A leaves no issue LIFE ESTATE LE: is an estate that has the potential duration of one or more human lives Life Grantee: usual estate is measured by the grantee’s life “to A for Life” Pur autr vie: the estate is measure by the life of someone else “to B for the life of A” “ to A for life”  A can convey his interest to B for his life Alienability: A Life tenant is free to transfer, lease. alienate their interest (but only their interest) they can never convey more than what they have Construction Problems: arise when the language is not clear on what estate is created each case largely depends on the INTENT OF GRANTOR Common Law default rule: construes conveyances as life estate Modern Law: says if is a Fee Simple unless there is language saying it is not Words of description or indicative of purpose merely state the reason for the gift
ex: White v. Brown Where the will was Holographice and therefre, equivocal “to live in” court held it was a FSA and not a LE (language was indicative of purpose)

Life Estate and the Remainders F.I (problems)

How do we determine the value of life estate and the remainder when the property is sold? life tenant is assumed to die by actuarian tables need an interest rate life tenant is owed the interest rate x property value (annually) need a sum that invested will yield that amount every year until she dies when a life estate creates a remainder, and all the parties are ascertained  they all have present interest in the property Equity may intervene and order the sale of property when it is in the best interest of all the parties Equity may intervene when there WASTE of the property NECCESSITY: before the court orders a judicial sale
ex: Baker v. Weedon Court held that the sale of the land was not in the best interest of all the parties (remainders) , but the parts should hypothecate and support the Π ( life tenenat) , in the event they cannot agree a judicial sale will be ordered

Problems with Restraints on Alienation restraints make Property unmarketable concentrates wealth discourages improvement stops creditors from reaching the property efficiency concerns 3 Restraints Forfeiture R. : if grantee trys to transfer interest it is forfeited elsewhere Disabling: withholds from the grantee the power of transferring interes Promissory: grantee promises not to transfer the interest Void Restraints: Any Total restraint on a Fee Simple  VOID Racial Restaints Void Usually Valid Restraints: Rights of first refusal Restrains on Use: raises the questions  can you place a restriction the purpose of a property that effectually makes it inalienable? Policy Question restrains on use have usually been upheld (courts want to encourage gifts) ex: Mountian Brow Lodge v. Toscano
Language: “to be used by R only ” “cannot sell or transfer the property” Court looked at the intent of the grantor and construed intent from the surrounding circumstances court said restriction is on the land and not the owner are not one in the same if we follow this logic no land can be conveyed where there is a restriction on purpose

DEFEASIBLE FEES F.S. Determinable: Grant in fee that may or may not last forever F.S. with a condition attached that if breached it can end the estate

Possibility of Reverter : estate ends immediately and goes to the grantor or Words of limitation: So long as, until, during. while A FS Determinable is transferable but is subject to the limitation no matter who holds it F.S. Condition Subsequent: grant in fee that may or may not last forever estate does not end immediately Right of Entry: estate continues until person who has the right to claim it re-enters and claims Words of Condition: but if, grantor has a right, upon the condition, in the even of, provided, however FS Condition Sub is transferable Mofern Trend : Right of Entry/Possibility of Reverter : Are ALIENABLE ( they are property rights ) Diff legal Consequences: FS Determinable: Statute of Limitations begins running as soon as condition is breached FS Subsequent: statute begins when grantor claims their right *** When there is ambiguity courts favor construction of FS condition Sub
ex: Mahrenolz v. County Board of School illustrates the ramifications of dertimnable/ conditions sub. If its FS Det.--> interest is conveyable because property reverted back to Harry as soon as the property ceased to be uses for school purposes. If it is a FS Con Sub it is not conveyable because Harry would have to claim is title first and then convey it.

FUTURE INTEREST Future Interest: is a nonpossessory interest capable of becoming possessory in the future Grantor Reversion Possibility Reverter Right of Entry Grantee Remainders Executory: Contingent Vested Shifting Springing Indefeasbale Vested Sub. to Open Vested Sub. to Complete Divestment V. Sub. to both open and C.D.

Future Interest in Grantor Reversion: is FI in the grantor after the grantor conveys a lesser possessory estate ex: O gives black Acre “to A for life” A gets a life estate (a lesser estate) there is a reversion FI in O when A dies can be certain or conditional (can be a contingent 3rd party or reversion to grantor) Transferabiltiy: inheritable, alienable, devisable Possibility of Reverter: cuts short an estate of the same quantum ( arises after a FS determinable) ex: O gives Black Acre “to A so long as it is used as a Whore House” A has a Determinable Fee, O has a possibility of Reverter Fee Simple conditioned on circumstances Right of Entry: cut short the estate when the grantor creates an estate subject to a condition subsequent ex: O gives Black Acre “to A, but if it is not used as a whore House” A has a FS Con. Sub. O has a Right of Entry Future Interest in Grantees Remainder: a future interest in the grantee that has the capacity of becoming possessory at the expiration of the estate Never divests another interest (NEVER CUTS SHORT AN ESTATE) Must follow a preceeding estate: Fee Tail, Life Estate, term of years ex: To A if A marries B no remainder (no preceeding estate Never follows a Fee Simple: cg: To A and his heirs, but if A dies without issue to B (B has an executory interest) cg: “To A for life, if B gives a proper funeral (NOT A REMAINDER) the estate must go back to O at the time of A’s death and then when B gives the proper funeral, B divests O Vested Remainder: 1) remainder has to be born 2) has to be ascertained 3) cannot follow a condition precedent Indefeasibly VR: the holder of the remainder is certain to acquire the possessory estate in the future ex: “To A for Life, Then to B his heirs” (B has a VRI, if B dies before A it goes to B’s Heirs Vested Remainder Subject to open: is a remainder in a class of people (one of whom must be alive. Class is open because more can be born

ex: “To A for Life” then to A’s children” (if A has no children it is a contingent remainder) or (if A has a child B it is VRSO The class is open as long as A is alive Vested Remainder Subject to Complete Divestment: The remainder is subject to divestment by a condition subsequent: may or may not occur Always Divested by a Executory Interest ex: “To A for Life, then to B, but if B dies before A then to C” (B has VRSCD, C has a exexcutory interest that will divest B if the subsequent condition happens (B dying) Inherent Limitation ex: “To A for life, then to B for life, then to C and his heirs” (B has a VRSCD  the divestment occurs because there is an inherent limitation on B’s life estate Vested Remainder Subject to Both: remainder can be both Subject to open and CD ex: “To A for life, then to the children of A, but if no child survives A then to B” If A has children, they have a VRSO, but it is SCD if they die before A Contingent Remainders: is 1) limited to a an unascertained person 2) condition precedent Unascertained Person: person not yet born or cannot be determined until the happening of an event ex: “To A for Life, Then to A’s Children” (A has no children) the remainder is contingent because the takers are not ascertained If A has child the remainder vest to a an open to let other children in * In the ex: supra: There is REVERSION IN THE GRANTOR Condition precedent: express condition set forth in the in the instrument that that must be met for the remainder to become possessory The condition precedent is incorporated into the description of the gift Read in sequence look at comas ex: “To A for Life, Then to B if B survives A, but B doesn’t survive A, to C” B and C have alternate contingent remainders * (grantor has reversion) if neither B nor C survive A ex: “To A for Life, then to B, but if B does not survive A, to C” :VRSCD * No Reversion in Grantor if neither B nor C survive A, it goes to C’s heirs When Ambiguity of Vested/contingent Law favors Vested
ex: Swanson v. Swanson issue: Vested or Contingent

“To A for life, then to my nine children, if any of my nine children die before A, their share will go to his or her children” “To A for life, then to each of my surviving nine children” If it is Contingentthe nine children would have to be alive(condition precedent) to take thus his children(and if he had none (wife) would not get anything if he died before A If it is Vested the nine children would get there share because there is no condition precedent places on them (being alive). thus it will vest in the children and in the event there was none--. the wife

Court held it was Vested Remainder and the wife could take Legal differences Vested/ contingent Most vested are not subject to rule of perpetuities Contingent remainders are not taxed Vested are taxed (there is certainty) EXECUTORY INTEREST Characteristics no preceding estate follows a fee simple does not follow the natural termination of the estate Shifting: future interest in the grantee that divest a preceding estate in another grantee (3rd party) Always divest the transferee (grantee) ex: “To A and his heirs, but if B gets laid, to C” C has an Shifting Ex. Interest. Springing: is a future interest in the grantee that springs out of the grantor at a date subsequent to gift always divest the grantor ex; “ To A and his heirs if A gets laid” A has a springing Ex interest that will divest grantor if he gets laid

FUTURE INTEREST Overview – Equitable interest in a trust are made up of a combination of future interest and possessory estates. Possessory estate is the right to possess the property right now; future interest is the present right to possess and enjoy the property in the future FI usually created in a trust. FI is a legal possesory estate if not created in a rust and equitable possesory estates if they are created in a trust Future interest in settlor – if settlor hold the future interest the interest must be a reversion, possibility of reverter or a right of entry. Most commonly is reversion which follows a life estate, fee tail or a term of years in which the future interest is expressly or implicitly retained by the grantor Reversion – Settlor has the right ot posses the property after a finate estate ends Finite Estate – an estate that must end. Three possible at common law, life estate, fee tail, term of years Implied reversion – reversion can arise implicitly if a settlor does not convey entire estate. Any FI not conveyed is presuemed retained. Vested – Reversions are vested FI.

Possibility of reverter – if settlor conveys fee simple determinable settlor will be deemed to have retained a possibility of reverter Right of entry – if settlor conveys a fee simple subject to condition subsequent settlor will be deemed to have retained a right of entry in the event the condition subsequent occurs Future interest in beneficiary – if beneficiary holds the future interest, the interest must be a vested remainder, a contingent remainder, or executory interest. The most common is the remainder it follows a life estate, a fee tail, or a term of yearsin which the future interest is given expressly to a party other than the grantor. Remainder is contingent unless it is vested. It is vested if 1) the holder is ascertainable 2) there is no express condition precedent (expressed in the same clause creating the remainder or the preceding clause) that the holder mus satisfy before he or she has the right to take possession PREFERENCE FOR VESTED REMAINDERS Intro – Common law court favored constuing an ambiguous remainder as vested as opposed to contingent. Vested remainder have a number fo benefits over contingent remainders Destructibility – At common law if a contingent remainder did not vest before or at the moment the finite estate ended, the contingent remainder was destroyed. This doctine does not apply today. Vested remainders were never subject to this doctrine Accelerating into possession – Vested remainders are entitled to immediate possession regardless of how or when the preceding estate ends. At common law, a contingent remainder could not become until all conditions precedent were satisfied. If the contingent remainder did not vest in time, it would be destroyed under the destructibility of contingent remainders doctrine. Disclaimers – If a life tenant disclaimed, under the common law, whether a remainder accelerated into possession turned on whether it was contingent or vested. Under the modern trend some courts hold it depends on the testator’s/settlor’s probable intent if they knew the life tenant would disclaim. Some statutes treat disclaimers as if they predeceased the decedent and determine acceleration that way Transferability – at common law, vested remainders were transferable but contingent remainders were not. Under the modern trend both are transferable Transmissibility – If a party holding the remainder dies before the end of the preceding estate, the remainder passes to the remaindermans probate estate where he or she can devise it or it will pass to the heirs. Preference for early vesting – when the language of the instrument is ambiguous as to whether the remainder is to vest upon the death of the transferor or the death of the life tenant, the preference is to construe the language so that the remainder vests upon the death of the life tenant Remainderman predeceases the life tenant – if this happens, at common law the remainder interest passed into the remainderman’s probate estatewhere it was devisible and inheritable. Under the modern trend, lapse and anti-lapse applies where the remainderman predeceases the life tenant Express Survival – Where grantor includes an express survival requirement and th language is ambiguous as to whether the remainderman must survive the grantor, the life tenant, or one or more remainderman, it is a question of the grantors’s intent. More often than not, the courts construe the language as requiring the party in question to survive to the moment they are entitled to possession. Die without issue divesting condition – Where remaindermans interest is expressly divested if he or she “dies without issue”, but the instrument is ambiguous it applies only if the remainderman dies before the life tenant or whenever the remainder dies, asent evidence of the grantor’s preference the courts tend to construe the divesting condition as applying only if the remainderman dies before the life tenant. Rules in Clobberies Case – established three rules of construction concerning gifts with ambiguous language delaying delivery 1) with all the income to X, with principal to be paid when he of she reaches a specific age or upon marriage, if neither of the conditions is met the interest is transferable 2)

If the gift is “to x at a specific age” if x dies before reaching that age the gift fails. 3) Where gift is “ to x , to be paid when x reaches a certain age, if x dies before reaching that age the interest is transmissible. UPC – applies lapse/anti-lapse approach to all future interest in trusts unless the interest provides otherwise. CLASS GIFTS Class Gift – When given to a class construction issues arise Class Closing – Class must close at some point. Can close naturally when no one else can enter the class or it can close by the rule of convenience, automatically, by operation of law, as soon as one person is entitled to possession of their interest. No one else can enter the class, even if he or she otherwise appears eligible to entder. (?) Direct outright gifts – Class closes upon the transferors death where the instrument, usually a will, provides the class with an outright gift. Gift of specific amounts – Class closes at the time of distribution where the instrument, usually a will, provides for an outright gift of specific amounts for each class member. Gifts of future interest – where an instrument creates a future interest in a class and the gift is a periodic payment of income, the class closes upon each periodic date for distribution of the income and reopens with the beginning of the next period for the duration of the period. Where gift is a one time distribution of principal, the earliest the class will close is upon the end of the preceding estate. Implied survival requirement – Court tend to imply survival requirement where a gift is to the grantor’s heirs, issue, descendants, or similar multigeneration gifts, but not where the fist is a single generation gift such as children or siblings. Express survival requiremet – gifts to surviving children – If child dies before taking possession and the instrument does not provide for what happens to the childs interest, the general rule is the issue of the surviving child do not take. Adopted children – Transforers intent determines whether adopted children qualify as issue under the written instrument, if the instrument is silent the common law excluded them while the modern trend is to include. Gifts to heirs – Remainder to a designated parties heirs create problems concerning who is included and when should the class of heirs be determined (when the designated individual dies or when the remainder becomes possessory). The Common law favored determining the designated parties heirs when the party dies, regardless of when distribution is to occur. Modern trend/upc determines who qualifies as an heir when the property is to be distributed to the heirs. Doctrine of worthier title – if the doc purports to create a remainder in the settlor’s heirs, the remainder is converted into a reversion in the grantor Rule in Shelley’s case – if a doc purports to create a remainder in real property in the heirs fo a life tenant, the remainder is given to the life tenant. Per capita v. per stirpes v. per capita at each generation – Gifts to issue are ambiguous where the instrument fails to differentiate between the types of distribution listed. Majority applies the jurisdictions default approach Income to class, single member dies – rebuttable presumption that th gift to the class is in joint tenancy with the right of survivorship such that the income is to be redistributed among the surviving members of the class. Presumption is rebutted if the instrument expresses a contrary intent, either expressly or implicitly.

RULE AGAINST PERPETUITIES

INTRO The Rule Against Perpetuities – A future interest must vest if at all, within the lives in being at the time of its creation plus 21 years, or the interest is void. Traditional approach – applied in the abstract at the moment the interest is created, doesn’t wait to see whether the interest ill vest within the perpetuities period, not concerned with probable scenarios. If thre is one scenario no matter how improbable in which the iterest will vest but not until after the perpetuities period, it is void from the moment of its attempted creation. Scope – applies to contingent remainders, vested remainders subject to open, executory interest and powers of appointment. Creation – future interest must vest within the lives in being when the interest is created plus 21 years. Interest are created under a deed when it is deliverd, under a will when the testator dies, under an irrevocable trust when it is funded, under a revocable trust when it becomes irrevocable, and special rules covered below apply to interest created under powers of appointment. CLASSIC RULE AGAINST PERPETUITIES SCENARIOS Intro – Fertile octogenarian – common law court assumed conclusively that a person was fertile until death regardless of age. EX – Settlor creates an irrevocable trust for the benefit of a woman, W, who is 80. The trust says, “ to W for life, then to her children for life, then to her first grandchild.” The woman has two children, and when the interest is created, neither of them has any children. The interest in the first grandchild violates the rule against perpetuities because the woman could have another child ( who would not be a life in being at the time the interest was created), and more than 21 years later the child could have a child who would be the first grandchild, vesting the interest but not until after the perpetuities period. Unborn widow – A person’s widow cannot be identified until the designated person dies. Any future interest following a future interest in a widow needs to be analyzed carefully to see if it violates the rule. EX – “ to H for life, than to H’s widow for life, then to H’s children then surviving. If you assume H’s widow is living the interest in H’s children then surviving would be valid, but because H’s widow could be unborn at the time the interest is created, the interest in H’s children surviving whe the unborn widow dies violates the rule Slothful Executor – potential for delayed and or prolonged administration of a decedent’s estate means that gifts to be made to unnamed generic takers upon distribution of the decedets estate usually violates the rule. EX – If T’s will provides that she leaves her estate “ to my heirs who are alive when the court orders distribution of my estate” that interest would violate the rule against perpetuities because all of the lives in being plus 21 years may pass before the court orders distribution of T’s probate estate. NOTES FOR FINAL Classification of claims – 5/18-10, 5/18-7 Classification of Claims Against Decedents Estate – 5/18-10 - Claims are divided into in the manner following 1st Funueral and burial expenses, administration expenses and statutory custodial claims. Funeral and Burial expenses encompass pretty much everyting involving the funeral and burial and thse fees can be

paid by the spouse. Intest begins to accrue on those fees 60 days after issuance of letters to the office of the rep. 2nd Surviving spouse of childs award 3rd Debts due to the U.S. 4th Money due to employees of the decedent of no more than $800 a claimant for services rendered withing 4 months of the death of decedent and expenses fromtending to the last illness 5th Money and property held in trust by decedent which cannot be identified or traced 6th Debts due to this state or any other local gov. 7th All other claims Procedure on Hearing of Claims - 5/18-7 On the call of the claim it may be allowed, set for trial, continued ot dismissed. A claim which is consented to by the rep or his attorney or to which no answer has been filed may be taken as proved or the court may require proof of the claim. If at the hearing of a counter claim, filed in favor of the estate against the claimant, that he is indebted to the estate after allowing all credits, deduction, and set-off the court may enter judgment for the amount of indebtedness. Persons entitled to preference 5/9-3 Persons Entilted to Preference in Obtaining Letters – 5/9-3 – In the following order persons are entitled to preference in obtaining letters of administration 1st Surviving spouse or their nominee 2nd Legatees or any person nominated by them with preference to legatees who are children 3rd Children or any person nominated by them 4th Grandchildren or any person nominated by them 5th Parents or any person nominted by them 6th Brothers or sisters or any person nominated by them 7th Nearest kindred or ay person nominated by them 8th Representative of the estate of a deceased ward 9th the public administrator 10th Creditors of the estate Only a person qualified to act as administrator under this act may nominate, except the guardian. Guardian of a person who is not qualified to act as administrator because of minority status or legal incapacity may nominate in order of preference under this statute. When one or more persons are claiming and are equally entitled to administer or to nominate, court may grant multiple letters or to the nominee. If the court grants to only one, how is that determined? Does it come down to a question of intent derived from the will? Know preference. Preference to be appointed the administrator of the will. Creditor is the last in order to receive preference Adopted Child Stattute 5/2-4 Adopted Child - 5/2-4 – An adopted child is the legal descendent of the adopting parent and inherits accordingly, unless the child was adopted after the age of 18 and never resided with the adopting parent before reaching the age of 18. If the child has not met these two conditions, the child is still considered a child of the adopting parent but is not a descendent for the purpose of inheriting from lineal or collateral kindred of the adopting parent. If the adoptive child has more than one tie to the decedent the adopted child is only

entitled to the largest share. The share to which the child is not entitled will be distributed as if the child never existed. Adopting parent and lineal and collateral kindred shall inherit from the adopted child as if the child were theirs naturally to the exclusion of the biological parent and their lineal and collateral kindred. The natural parent and the lineal and collateral shall take from the child and their kindred the property the child has taken from or through the natural parent or the lineal or collateral of the natural parent, by gift, by will, or under intestate laws. Inheritance from the adopted child or their kindred. Spouse of an adopting parent is an adopting parent. A child is adopted when a court declares it or when the child has been declared or assumed to be the child by any instrument passing property to the child. Inheritance from or through a natural parent. Not a child of the natural parent or a descenedent of the natural parent or the lineal or collateral kindred unless three exceptions are met. 1 Spouse is adopted by a descendet or spouse of a descendent of a great grand parent. This makes the child the child of both natural parents. (?) Natural parent died before the completion of adoption in which acse the child is of that deceased parent and an heir of the lineage and collateral of the deceased parent. Instruent demonstrates contrary intent through clear an convincing language Heir of an adopted child who is not a child of a natural parent is not an heir of that parent. Adopted child inherits from the adoptive parent unless 1 of 3 conditions is met. Through clear and convincing term of the instrument the intent to exclude is evident. Adoption and adult adoption – adopted child is a nature child for purposes of inheritance Statute requires that you lived with decedent prior to death for …(/) Posthumous 5/2-3 Posthumous Child – 5/2-3 – A posthumous child of a decedent shall receive the shame share as if that child were born during the decedents lifetime. Simultaneous Death – 5/3 No Sufficient Evidence of Survivorship – 5/3-1If title of property or its devolution depends upon the order of death, and there is no sufficient evidence that persons have died other than simultaneously and there is no other provision in the instrument for distribution of the property Different from this section: Property of each party shall be disposed of if he had survived If multiple beneficiaries are designed to take successively by reason of survivorship under another person’s disposition of property, the property shall be divided into as as many equal portions as there are beneficiaries. And they will be distributed as if each designated beneficiary had survived. If 2 person held property in joint tenancy the property is distributed half as if one had survived and half as if the other had survived. Distribution is proportional to the death of X number of Joint Tenants If the insured and the beneficiary die at the same time the proceeds from the policy pass as if the beneficiary predeceased the insured. Advancement Proof of intent to make advancement 5/2-5 Advancement – 5/2-5 – In division and distribution of an estate intestate, real or personal property given by decedent in his lifetime as an advancement to a descedent is considered part of decedents estate to be applied on the share of the person to whom the advancement was made, or id dead before decedent, on the share of descedents on the person whom the advancement was made. Gift is not an

advanceent unless expressed in wrting by decedents or unless so acknowledged in writing to whom the gift was made. If the advancements value was expressed in the writing made by decedent, or if not so expressed in the written acknowledgment by the person to whom the advancement was made, it is that value, otherwise the value of the gift when given. If the advancement exceeds the person share that person doesn’t hjave to give a refund. Testamentary additions to trust - 5/4-4 Testamentary additions to trust – 5/4-4 – Under a will in accordance with this act a testator may bequath or appoint real and personal estate to a trustee of a trust evidenced by an instument, including someone else’s will who predeceases the testator, made before testator’s will is created, identified in testators will eventhough the trust is subject to amendment, modification, revocation or termination. Unless testators will says otherwise the bequeathed estates shall be governed by the the instrument creating the trust. If the trust is terminated before the bequest shall take affect it will be controlled by the language of the original trust. Challenges to wills Undue influence Incapacity Fraud Tortious Ademption Abatement Claims against the estate – 5/18-13 Priority of Payment – 5/18-13 – rep of decedents estate shall pay from the estate all claims entitled to be paid, in order of there classification and when the estate is insufficient to pay the claims in any one class, the claims in that class shall be paid pro rata. Class Gifts – just know how to identify them, and what happens if a member of aclass does not survive Extrinsic evidence – when will a court allow extrinsic evidence? Two different systems – Probate and Intestate (default TRUST Inter Vivos and Testamentary Trust – What is the difference? Know element of the trust Reservation that the settlor can reserve to himself. Power to invade, p Precatory language Various trust – Mandatory, support, discrectionary Predators rights – whether or not they can attack the trust. Determined if there is a spendthrift provision Trust modification and termination Duties of Fiduciaries – Honesty, reasonable and prudent investor rule. Duty to account. Illusory Trust- when all of the power in the trust is reserved to ones self. Constructive Trust Ci Pres Doctrine RAP and FUTURE INTEREST

FORMAT 5 Essay questions SAMPLE QUESTION #2 – Wife’s valid will bequieths he rintire estate to husband it does not provide for na alternative gift if husband predeceases her. They recently die in a fire in their home. Fire was set by son in his second frloor bed room at 2 wife was found in night clothes in her room. Husband was found downstairs with indication that he had been crawling down the stairs. They were survived by son, daughter and son’s daughter. Son claims fire was not purposeful and the fire marshal has foud evidnce otherwise. Local prosecuter declined to seek an indicment because the evidence is insufficient ot support a conviction. If title to prop or id devolution depends on order of death and there is no evidence that the person have died otherwise than simultaneous ly and there is no other provision in the will than the property of each will be dealt with as if each had survived. To whom should husbands estate be distriubred To whom should the wife’s estate be distributed