REVIEW TRUSTS AND ESTATES 12/4

Formal vs. Informal Probateestablishes the validity of the will.

Leads us to supervised vs. unsupervised proceeding.
- Personal property less than 25,000-no probate
- If the estate does have real property and less than specified amount
you can use a summary administration process
Intestacy: CL, State Rules
We use UPC: Chart on page 69 LOOK FOR INTESTACY RULES
Page 86breaks it up in lineages
We do not go out more than the grandparents line of descendants
that would be laughing heirs
A person who inherits under that statute is considered an heira little
different under CL (spouse never considered and heir)
Simultaneous Death:
CL rule had to figure out who died first. A lot of it depended on very
little proof
USDA: Unless there is sufficient evidence that the other person
predeceased the other
Amended Rule: Clear and convincing evidence by 120 hours
3 TYPES OF WILLS
Attested, holographic, notarized will
Notarized will: Notary republic will substitute for the witnesses. ONLY 2
states have adopted that provision
Attested Wills: Witness signs affidavit just in case they dieproof as
evidence if witness dies
INTERESTED WITNESSES
CL: devisee witness could not take under the will and could not testify
(punishment to the interested witness)
Purging statute: witness cant takehowever the will still valid.
Holographic willIssues under the holographic will.
Was this meant to be testamentary intent?
OR is it making just statements
2nd issue that arisessome of the will is not in the testators
handwriting

Two views as to exception:

o Move beyond the entire thing being written, but regard the
handwriting portion to be treated as holograph as long as
handwritten portion accomplishes disposition I leave 1/3
to Mary
o Cant just put In the names of the person
Material Portion (UPC)
o If material portion is in the testators handwriting
o Being of sound mindprinted

Revocation Will
Subsequent writing
Physical act
OR EVEN REVOKE BY IMPOSITION (if new will disposes of all
property = revoked, if only dispose some it is a codicil
Revocation of will revokes all codicils
Revocation of a codicil does not revoke the underlying will.
Physical revocation can be performed by testator or another person in
testators presence
Doctrine of Integration-Procedural Matter
Provide for disposition by acts of independent significance
Example: I leave my house to whomsoever my brother leaves his
house. Brother makes decision based on matters that pertain to the
brother
Example: I leave my house to Jon if there are two full moons in the
month of June
K not to make/revoke a will
If you a have valid will that can be probated even if in violation of K
K not to make a will comes up such as people agreeing to leave assets
to those who take care of them in old age
K not to Revoke-Joint/Mutual Wills: not per se to revoke the will
--Has to be in writing to demonstrate not to revoke
FOR MENTAL CAPACITY NEED TO KNOW:
what you own, how much of it you own, natural bounty meaning kids,
spouse, and disposition youre making
Burden on person challenging the will
PRESUMPTION if confidential relationship or suspicious circumstances
are present
THINK paramour or caretaker

DURESSS: physical/economic most common

Fraud: 2 kinds of fraud
1. fraud in the execution- Sign this, this is the letter and it happens
to be a will
2. Fraud in the inducement- Person told lie about another person
Ambiguity:
Patenttraditionally extrinsic evidence could not be brought in.
Latent ambiguity- only realize theres an ambiguity when you apply it
to the facts. Example two people relatives names George or house not
located on State Street, but Main Street. By tradition you can bring in
extrinsic evidence to resolve that ambiguity.
UPC: allows for reformation to correct a patent or latent if true intent
of testator can be proven by clear and convincing evidence
CL: beneficiary has to survive the Testatorotherwise the gift lapses
Trust can be revocable or irrevocable
If by definitionit is irrevocable
No trust has ever failed for lack of trusteedont need to designate but
you should
Revocable trusts can be amended revoked by clear intent
Unless specified by X, Y, Z
Restrictions
Revocation on divorce, spousal share, slayer statute applies
Other constructional rules apply: Abatement can apply
Medical Capacity needed to create trusttraditionally, higher than a
will, but now that we have the ability to pour overUPC lowered it to
same capacity to make a will
Common Usual of Revocable Trust: Pour over Trust
Make the Trust as a bowl Pitcher of Water and Bowl
Bowl is pour over trust
Pitcher is the Willwhen the decedent dies the assets from the
decedents estate go into the bowl
Life insurance
Term life: pay X numbers of dollarsterm only one year. You have to
renew for the next year. At the end of the each year you have no
savings

Whole life: Putting a little more in each year, but you have fixed rate.
Over time you build up cash value and you can borrow against it or
cash it in. Value never going to equal face amount of policy