Decedents’ Estates & Trusts

Prof. Aaron Schwabach

I. Intestate Succession
A. Occurs when:
1. Decedent has no will
2. Decedent’s will, or some part of it, is not admitted to probate or otherwise invalid or inoperative
3. Some part of decedent’s estate is not disposed of by the will
a) Can be avoided by a residuary clause
B. Surviving spouse:
1. Ways to become a spouse:
a) Statutory Marriage – every state, requires formalities, such as proper capacity, a license, and
solemnization.
b) Common Law Marriage – when all requirements of statutory marriage are met, but you lack a
license and officiant.
c) Putative Spouse – curative device, when a marriage is annulled due to a major impediment, but
the party entered the marriage with good faith.
2. Decrees severing marriage:
a) An agreement severing inheritance rights of spouses must be clear and unequivocal.
3. With decedent’s issue also surviving:
a) Most states: Surviving spouse takes 1/3 or 1/2 the estate
b) Some states: The spouse takes up to a fixed dollar amount, plus 1/3 or 1/2 of the estate beyond
that amount
c) Uniform Probate Code (UPC) 2-102: If all surviving issue are descendants of both decedent and
the surviving spouse, spouse takes entire estate.
4. With no issue of decedent surviving:
a) Most states: Spouse takes entire estate
b) UPC 2-102:
(1) Spouse takes entire estate if decedent is not survived by issue or parents.
(2) If spouse is not survived by issue but is survived by one or both parents, spouse takes a set
dollar amount plus 3/4 of the amount over that, and parents take the remaining quarter.
5. The main take-aways:
a) There are a lot of possible variations, and it’s crucial to consult your state’s intestate succession
statute.
b) The surviving spouse always gets something.
C. Surviving issue:
1. If there are surviving issue, any portion of the estate not passing to the surviving spouse (or all of the
estate if there is no surviving spouse) will pass to the issue
a) Other relatives will thus inherit nothing if there are surviving issue, whether or not there is a
surviving spouse.
b) The senior living member(s) of each line of descent will take. Thus, if decedent has two
children, A and B, and A has one child and B has two children, A1, B1, and B2, the
grandchildren will take nothing if A and B are living at the time of decedent’s death.
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2. It’s when a child predeceases the decedent that things get complicated. Descent and distribution of
the estate may be per stirpes, per capita, or some combination thereof.
3. Per capita distribution with representation (essentially modified per stirpes) is the rule in the
majority of states.
a) Property is divided into equal shares at the first generation with living takers.
(1) Thus, if decedent’s children A and B both survive decedent, each takes 50%.
(2) If A survives but B does not, A takes 50% and B’s children (B1 and B2) divide the other
50%, each taking 25%. A1 takes nothing.
(3) If B survives A but A does not, B takes 50% and A1 takes 50%.
(4) If neither A nor B survives, A1, B1, and B2 each take 33.333%.
4. Per stirpes representation: (common law approach): Division is made at the child level regardless of
whether there are living children.
(1) Thus, if decedent’s children A and B both survive decedent, each takes 50%.
(2) If A survives but B does not, A takes 50% and B’s children (B1 and B2) divide the other
50%, each taking 25%. A1 takes nothing.
(3) If B survives A but A does not, B takes 50% and A1 takes 50%.
(4) If neither A nor B survives, A1 takes 50% and B1, and B2 each take 25%.
5. UPC 2-106(b): Per capita at each generational level. “[D]ivided into as many equal shares as there
are (i) surviving descendants in the generation nearest to the decedent which contains one or more
surviving descendants and (ii) deceased descendants in the same generation who left surviving
descendants, if any.”
a) Thus, if decedent’s children A and B both survive decedent, each takes 50%.
b) If A survives but B does not, A takes 50% and B’s children (B1 and B2) divide the other 50%,
each taking 25%. A1 takes nothing.
c) If B survives A but A does not, B takes 50% and A1 takes 50%.
d) If neither A nor B survives, A1, B1, and B2 each take 33.333%.
e) The difference between the UPC approach and per capita with representation: Assume that
decedent had a third child, C, who had three children, C1, C2, and C3, and that B and C both
predeceased decedent. A and all of decedent’s grandchildren are still alive.
(1) Per capita with representation:
(a) A takes one third (~33.333%).
(b) B1 and B2 divide B’s one-third share, and take one sixth (~16.666%) each.
(c) C1, C2, and C3 divide C’s one-third share and take one ninth (~11.111%) each.
(d) On these facts, the result is the same as under a classic per stirpes approach, as A is still
alive.
(2) UPC 2-106(b):
(a) A takes one third (~33.333%).
(b) The shares of the deceased B1 and B2 are combined and divided among their children:
(c) B1, B2, C1, C2, and C3 divide this combined two-thirds share and each take two
fifteenths (~.1333%).
6. Adopted children:
a) UPC 2-119: Adoption severs all inheritance rights, either direct (from) or indirect (through) in
both directions between the adopted child and what the Code terms the child's genetic parent(s)
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 (despite drawing no distinction between the rights coming from a genetic parent-child
relationship and what it terms a gestational parent-child relationship), except:
(1) When a genetic child of one parent is adopted by the spouse of that parent, the severance is
one way: The other genetic parent loses the right to inherit from the child, but the child does
not lose the right to inherit from the genetic parent; the child can now inherit from three
parents.
(2) When a child is adopted by a family member of one genetic parent, or when a child is
adopted after the death of both genetic parents: The genetic parent's right to inherit through
the child is severed, but the child's right to inherit through the genetic parent is not.
(3) Surrogacy, IVF, and other reproductive technologies: UPC 2-119 seems a bit confused on
the question of surrogate parents and their gestational or genetic children, and is silent on the
question of IVF involving genetic material from more than two parents.
b) Foster children and stepchildren: Inheritance rights do not pass in either direction from or
through foster children or stepchildren and their foster parents or step-parents.
(1) But if the relationship becomes equitable adoption (aka adoption by estoppel) the children
may then be considered as adopted children.
(2) Note that the Maryland court in Board of Education of Montgomery County v. Browning
distinguished between:
(a) Equitable adoption, which allowed inheritance from but not through the equitable
adoptive parent, and
(b) Legal adoption, which would allow both.
c) Equitable adoption: Only applies to allow the child to inherit from purported adopter intestate.
The required elements to establish equitable adoption are:
(1) Express or implied agreement to adopt the child
(2) Reliance on that agreement
(3) Performance by the natural parents of the child in giving up custody
(4) Performance by the child and living in the home of the foster parents, acting like their child
(5) Partial performance by foster parents in taking the child into their home and treating like
their own child
(6) Intestacy of the foster parent
7. Parental Rights in General:
a) Created by consent and conduct
8. Posthumous children: Children in gestation at the time of decedent’s death are treated as alive
during the decedent’s lifetime so long as doing so is in the child’s interest.
a) Courts and legislatures have only begun to deal with the question of posthumously conceived
children.
9. Children born outside marriage:
a) Can inherit from and through the mother, and vice versa, in all states.
b) Can inherit from and through the father, and vice versa, in most states, if:
(1) The father later married the mother.
(2) The father was adjudicated as such in a paternity suit or other proceedings, including probate
proceedings.
D. Other surviving relatives: Parents, siblings, grandparents, aunts, uncles, cousins, and so forth.
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 1. In every state, if there are any surviving issue, these other surviving relatives take nothing.
2. In most states (but not under UPC 2-102), if there is a surviving spouse but no surviving issue, these
other relatives take nothing.
a) UPC 2-102: Surviving spouse takes a set dollar amount plus 3/4 of the amount over that, and
surviving parent or parents take the remaining quarter.
b) Even under UPC 2-102 relatives other than parents will take nothing if there is a surviving
spouse.
3. No distinction is drawn between half and full siblings for collateral inheritance purposes.
E. Advancement of intestate share
1. At common law, am inter vivos gift to one child and not to others was presumed to be an advance on
inheritance, kid bears burden of showing it was not an advancement.
2. Modern law/UPC 2-109: Presumed not to be an advance, unless intent can be shown.
a) UPC requires a writing to show intent
(1) This can be either a contemporaneous writing by the transferor, or
(2) An acknowledgement by the transferee.
3. If there is an advancement, the amount advanced is added to the net value of the estate (similar to
the civil law concept of legitim) for purposes of calculating distribution (but not for purposes of
taxation or estate fees).
a) If the advancement exceeds the heir’s share under this method, the heir need not return the
excess (in contrast to the practice in some civil law countries)
b) Calculate by:
(1) Adding advancement back into the estate
(2) Divide into equal shares
(3) Deduct the advancement from the child’s share.
4. If the advancee predeceases the decedent
a) At common law: The advancement rules are binding on the advancee’s heirs or beneficiaries as
well.
b) UPC 2-109(c): The advancement is not binding on the advancee’s heirs or beneficiaries unless
the requisite writing so provides.
5. Change in value: The advancement is valued at the time of transfer, and subsequent increase or
decrease in value has no effect.
6. Satisfaction of legacies: looks very similar to advancement, but applies to a gift under a will, made
after the will is executed.
a) As with advancement, the UPC (UPC 2-609) requires a writing.
b) When specifically named property (e.g. “My baseball signed by Hank Aaron”) is named in the
will and given inter vivos, the writing is unnecessary.
F. Problems related to intestacy as well as to other transfers at death:
1. Partial intestacy: When a will does not dispose of the entire estate (and contains no residuary
clause), the residue passes by intestacy.
a) If the will expressly disinherits a person who would be an intestate heir:
(1) Majority: No effect on intestate portion of estate.
(2) Minority/UPC: Treats disinheritance clause as a “negative bequest” and applies it to
intestacy as well.
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2. Simultaneous death: Two approaches, each widely adopted. Both rules apply not only to intestacy
but also to wills, and non-probate transfers.
a) Under the Uniform Simultaneous Death Act, when there is insufficient evidence as to which
party died first, the property of each party is disposed of as if that party had survived the other.
b) 120 Hour Rule (Revised Uniform Simultaneous Death Act and UPC 2-104): Heir or beneficiary
must survive decedent by 120 hours in order to take. Must show by clear and convincing
evidence. If you can’t show this, each will be treated as if they predeceased so both can take.
3. Disclaimers: Anyone can disclaim an intestate share, as well as any property passing under a will or
by some non-probate mechanisms.
a) Main reasons for disclaiming:
(1) The disclaimant wants another person (heir or beneficiary) to receive the property instead, or
wants to increase the other heirs’ or beneficiaries’ share.
(2) The disclaimant wants to avoid tax liability.
(3) The disclaimant wants to protect the property from creditors. (This will work against most
creditors but not against a federal tax lien against disclaimant’s property.)
b) For federal tax purposes, the disclaimer must be in writing, irrevocable, and filed within nine
months of the decedent’s death. The written disclaimer must ID the decedent, describe the
interest disclaimed, and define the extent of the disclaimer. (See also UPC 2-1107 - nine months
for joint tenant to disclaim right of survivorship.)
(1) If the potential disclaimant is under 21, the period runs until nine months after the
disclaimant’s 21st birthday.
(2) Future interests: For federal tax purposes, must be disclaimed within nine months of the
creation of the interests. (For state law purposes in some states, within nine months of
vesting in possession.)
(a) If a life estate is disclaimed, any remainders or reversions are accelerated as if the life
tenant had died.
(3) Once heir or beneficiary has accepted any benefits of the property they are estopped from
disclaiming.
4. Advancements:
a) Advancement (only if intestate succession), otherwise called a satisfaction (under a will).
b) UPC 2-109:
(1) Decedent must declare contemporaneously with the gift, his intention for the gift to be an
advancement.
(2) The property is valued at the earlier of either the decedent’s death or the time the recipient
got the property.
(3) If the writing is from the receiver of the property, need not be contemporaneous with the gift.
5. Heir or beneficiary who kills decedent (elec Rule):
a) A person who intentionally and unlawfully (in most states feloniously) causes another person’s
death cannot inherit from that person.
(1) Most states have a slayer statute to deal with this situation.
(2) Others impose a constructive trust for the same purpose.
(3) Applies to intestacy, probate, and non-probate transfers, including right of survivorship.

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 b) Standard of proof: In the absence of a conviction, a preponderance of the evidence standard is
applied.
(1) A wrongful death judgment will satisfy this standard.
(2) It may also be the subject of a separate determination.
II. Wills
A. Definition: A will is a legally executed instrument that directs that certain actions be taken upon a
person’s death.
1. Typically disposes of testator’s property, but may merely appoint a personal representative or
revoke or alter a previous will.
a) Codicil: A document that alters, amends, or modifies a previous will without revoking it, acting
as a supplement rather than a replacement.
(1) If the document has a residuary clause, it is a new will, not a codicil.
2. A will takes effect only on testator’s death; any potential disposition of property in the will creates a
mere expectancy of inheritance, rather than a legally cognizable property right, while testator is still
alive.
a) Testator can revoke, revise, or alter the will at any point while still alive.
B. Statute of Wills (1540): Will must be
1. In writing
2. Signed by the testator 
3. Witnessed by at least two other persons
C. Types of wills
1. Non-traditional will formats:
a) Nuncupative (oral):
(1) Allowed in only a few states, generally with property limits and witness requirements
(2) Not allowed under UPC
(3) Historically allowed for soldiers dying on battlefield
b) Holographic: A will written entirely in the testator’s own hand (UPC: some typewritten text
allowed as long as it is not material, p. 184)
(1) Allowed in about half the states
(2) Must be:
(a) Dated (some states, but not Arkansas)
(b) Signed (need not be at end; can be in body of text)
(c) Written with testamentary intent (can be implied rather than express) or at least in
contemplation of death
i) In most states, can later be amended by interlineation
(3) Some states (e.g. Ark.) require witnesses as proof that the document is in the testator’s own
handwriting
c) Notarized: The UPC recognizes wills as valid even in the absence of witnesses other than the
notary, if notarized; the notary is treated as equivalent to the traditional two witnesses
2. Traditional (witnessed) wills: A will that meets the other requirements of validity (as set out below)
and is witnessed by two disinterested witnesses is valid in every state
a) Statutory wills: Forms are provided in the laws of some states (e.g. CA)
b) Formalities
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(a) Signature:
i) Will must be signed by the testator or someone acting at their direction. Must be
made with the intention that that be your signature.
ii) Witnesses: Will must be signed by the witnesses (two, in almost all cases) or
someone acting at their direction.
(1) Witnesses must be competent at time of signing, although generally there is no
age requirement
(a) Must be mature enough to understand and appreciate the nature of what is
being signed
(2) Disinterested witness requirement:
(a) In a majority of states, any bequest or devise to an interested witness is void,
but the will as a whole is not invalidated. A state statute may “purge” your
interest, rendering you a valid witness. Even benefiting your company is
considered benefitting you.
(b) If there are more than two witnesses and two are disinterested, gifts to the
supernumerary witnesses are unaffected
(c) If the interested witness would have taken through intestacy or a prior will to
which the interested witness was not a witness, the interested witness takes
the lesser of intestate/prior will share, or share under the witnessed (current)
will.
(d) UPC 2-205(b): No requirement that witnesses be disinterested.
iii) Order of signing is not critical.
iv) Placement of signature: In most states and under UPC 2-502(a)(2), not critical.
(1) In a few states will must be subscribed - that is, signature must be at end.
(2) In every state and under the UPC text added after the time of signature is
unattested and thus not given effect as part of the witnessed will.
v) Presence
(1) Traditionally, and still in many states, all must be present at the same time:
witnesses must see the testator sign, and testator must see the witnesses sign.
(2) Some states allow witnesses to sign within a certain period of time (e.g. NY, 30
days), or while testator is still alive (CO).
(3) Most states now allow the conscious presence test - if testator and witnesses are
conscious of the presence and actions of the other party or parties and the signing
took place nearby and within their general awareness and cognizance, they need
not actually see the signing.
(4) During the pandemic some states (e.g. NY) have allowed for online presence -
testator, witnesses, and notary need not be in the same physical location, as long
as they are all present by video link. It remains to be seen whether telepresence
will continue to suffice after the pandemic subsides.
(5) Scope of vision test (minority rule): Parties must be in each other's scope of
vision at the time of signing - that is, they could have seen the signing, whether or
not they actually did.
(6) Exception for blind persons
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 (7) UPC Conscious presence AND a testator can acknowledge a signature or the will.
(b) Compliance devices
i) Attestation clause: Below testator’s signature and above witnesses’; recites elements
of due execution. Can substitute for witnesses incorrect or missing memory of the
signing years later.
ii) Self-proving affidavit: UPC 2-504 (page 217): After signing the will, the witnesses
sign, in the presence of a notary, an affidavit that the testator declared the instrument
to be their will and signed in front of the witnesses, and that the witnesses also signed
the will.
(1) Can be executed at any time after signing; typically done immediately after and
attached to the will.
(2) (Majority) Signatures on affidavit can substitute for signatures on will; a minority
of states require both to be signed, and this is the general practice.
(3) If successfully proved, the formalities become irrebuttable.
iii) Substantial compliance:
(1) UPC 2-503: Court can ignore harmless errors in execution. Must prove that
Decedent intended the document or writing to constitute …by the preponderance
of the evidence. (See page 217).
D. Mental state
1. Challenges: contestants of a will have the burden of establishing lack of testamentary intent or
capacity, undue influence, fraud, duress, mistake, or revocation. Intentionalities are presumed to be
present. UPC 3-407 (page 233)
2. Testamentary intent
a) Must be present intent: At the time of making the will, the testator intends that their property be
disposed of upon their death in the specified manner
b) Language such as “this is my last will and testament” raises a rebuttable presumption of
testamentary intent.
c) An ineffective deed cannot be a will even though it otherwise meets the formalities, because of
lack of testamentary intent.
d) Intent can be conditional, e.g. “if I die on this NASA mission…”
(1) A condition may be worded in a way that could be interpreted as motive rather than
condition: “Because I am about to leave Earth on a trip to the Moon…” The will might then
still have effect even if testator returns safely from the Moon and dies a decade later.
(a) The will is evidence of an intent not to die intestate.
(b) The preservation of the document, and failure to make a new will, is evidence of the
intent that the will not be conditional.
3. Testamentary capacity: At the time of the making of the will, the testator must be:
a) At least 18 years of age, and
b) Of sound mind.
c) Insane Delusion: If testator has sufficient mental capacity but suffers from an “insane delusion,”
any provisions of the will resulting from that delusion, up to and including the entire will, may
be invalidated in a will contest.
(1) The delusion must be the but-for cause of the challenged provision(s).
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 (2) “Insane delusion” is a legal, not medical term. It requires belief in facts that
(a) Are not true, and
(b) That no rational person would believe to be true.
(c) As with all challenges to testamentary capacity in a will contest, the burden of proof is on
the contesting party.
d) Undue influence: A will, or any part of it, can be invalid if it is the result of undue influence on
the testator.
(1) Influence must have been exerted on testator;
(2) The effect of this influence must have been to overpower the testator’s mind and free will;
and
(3) As a result, a will or provision was executed that would not have been executed otherwise.
(4) Burden of proof is on the contesting party
(a) Mere opportunity to exert influence is insufficient.
(b) Age or physical condition is insufficient.
(c) The fact that the will “unnaturally” favors some relatives over others is insufficient.
(d) However, a rebuttable (that is, burden-shifting) presumption of undue influence arises
when:
i) There is a confidential relationship between the testator and a person who
participated in procuring or drafting the will; or some other significant activity
related to the will.
(1) Criteria for finding procurement of the will can include:
(a) Beneficiary’s presence when testator expresses desire to make a will;
(b) Beneficiary recommending an attorney to prepare the will;
(c) Beneficiary instructing the attorney;
(d) Beneficiary obtaining the witnesses;
(e) Beneficiary keeping the executed will; and
(f) Beneficiary’s knowledge of disposition prior to execution of the will.
ii) A minority of states add a requirement that the distribution be “unnatural.”
(1) Unnatural distribution alone is not grounds for finding undue influence.
iii) There is no automatic presumption of undue influence between spouses ; for undue
influence to be found between spouses,
(1) One spouse must have asserted influence over the other (the testator) so as to
overpower the free will of the testator, and
(2) the disposition must reflect the desires of the spouse asserting the influence.
iv) If the presumption is established, then the proponent of the will must quell it with a
preponderance of the evidence.
v) If there is attorney misconduct in execution of the will, proponents must overcome
the presumption of undue influence by the preponderance of the evidence.
e) Fraud is grounds for invalidating part or all of a will if the testator was deceived by and acted in
reliance on the fraudulent misrepresentation.
(1) Fraud requires:
(a) A statement
(b) That is false
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 (c) Which the inducer knows to be false
(d) Which is material which is made with the intention of deceiving the testator
(e) Which deceives the testator
(f) Which causes the testator to act in reliance upon the statements.
(2) Fraud in the execution, aka fraud in the factum, is a misrepresentation as to the nature of the
contents of the instrument.
(3) Fraud in the inducement is fraud which causes the testator to include a provision or
provisions in the will that would not have been included but for the motivation provided by
the inaccurate information.
(4) Fraudulent prevention: Where execution of a will is fraudulently prevented by a person who
would take as an intestate heir,
(a) Some states apply intestate succession laws.
(b) Others impose a constructive trust for the benefit of those who would have taken under
the will, and against the intestate successor(s).
f) Mistake resembles fraud in that it is based on testator's incorrect information as to the facts, but
differs in that there is no fraudulent intent.
(1) Mistake in the inducement: If the will is otherwise valid, no relief is available.
(a) Exception: Mistake as to inducement on the face of the will.
(b) Mistake as to child’s death: Extrinsic evidence admissible and relief available under UPC
2-302(c) and many state’s laws.
(2) Mistake as to nature of instrument: Extrinsic evidence can be introduced to show testator
misunderstood the nature of the instrument signed (and thus lacked the requisite
testamentary intent).
(3) Wrong will signed (e.g. between husband and wife at same time):
(a) Traditional view: Wills are both invalid because there is no testamentary intent.
(b) Modern view: Wills can be swapped because the couple had the requisite intent at the
time of signing but simply signed the wrong documents by mistake.
g) Tortious interference with an expectancy is a separate claim from fraud, mistake, or undue
influence, recognized in some states. Elements:
(1) A valid expectancy,
(2) Intentional (not negligent or reckless) interference with that expectancy,
(3) Independently conduct (including but apparently not limited to other grounds for challenging
a will such as fraud, duress, or undue influence)
(4) Reasonable certainty that absent the tortious interference the plaintiff would have received
the expectancy, and
(5) Damages.
E. Revocation: Any person with testamentary capacity also has the capacity to revoke a will. A revocation
is not invalid simply because it violates a contract to make a will, although in that case contract damages
may be available. UCC 2-507 (page 279).
1. Physical act:
a) A will can be revoked by:
(1) Burning, tearing, obliterating, lining out, blacking out, Xing out, shredding, or otherwise
physically destroying a material part of the will - that is, the text or the testator’s signature-
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 and not merely the blank portions of the paper, (if words are used to revoke, they must be
placed to physically affect a written portion of the will) with
(2) Present intent to revoke.
b) (Majority and UPC 2-507(a)(2)) The physical act can be performed by a proxy, at the testator’s
direction and in the testator’s presence.
c) (Majority and UPC 2-507(a)) Revocation can be partial as well as total.
(1) Any increase as a result of partial revocation falls to the residue.
2. Subsequent instrument: A will may be revoked by a subsequent will, ambiguity, or other written
document.
a) Requires:
(1) Present intent to revoke, and
(2) Instrument is executed with the same formalities as required for a will in that jurisdiction,
(a) Thus can include holographic wills in jurisdictions recognizing them.
b) Revocation can be implicit: An inconsistent provision in a later rule revokes the earlier
provision, even without express revocation. Look to see that all of the property has been
accounted for. If it has not, then you may have a codicil.
(1) Where no express language of revocation is included and the provisions are not inconsistent,
the later will can be read as a codicil.
3. Revocation by operation of law: State laws vary significantly, but in general significant changes in a
family situation (marriage, divorce, birth or adoption of children) may partially or totally revoke a
will.
a) Marriage:
(1) (Majority) Marriage following execution of a will has no effect on the will, because that
spouse is protected by the state’s elective share or community property laws.
(2) (Minority and UPC): Omitted spouse takes an intestate share.
(3) Note that the effect of these two approaches will often be the same.
(4) Revocation is partial, applying only to the spouse’s portion. Abatement rules apply -
spouse’s portion will be satisfied from, in order:
(a) Property passing by intestacy,
(b) Residue,
(c) General legacies,
(d) Demonstrative legacies, and
(e) Specific devises and bequests.
b) Divorce or annulment: UPC 2-804 (page 287): Upon divorce of the testator or settlor (but not of
beneficiaries or other persons),
(1) (UPC and most states): All gifts and fiduciary appointments in favor of former spouse are
revoked.
(a) Will is read as if ex-spouse predeceased testator.
(b) UPC: Extends to relatives of former spouse who are not relatives of testator.
(2) Statutes apply only to wills and in some cases revocable trusts. Life insurance polices and
other non-probate transfers may not be affected.

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 c) Children: Most states have pretermitted child statutes. Any child born or adopted after the
execution of the will receives an intestate share, drawn from estate according to the usual rules
of abatement.
4. Presumptions
a) If the will was last seen in testator’s possession or control and is not found after the testator’s
death, the will is rebuttably presumed revoked.
(1) If the will was last seen in the possession of someone else, including a person adversely
affected by the contents, no presumption of revocation arises.
b) If the will was last seen in testator’s possession or control and is found in a mutilated condition
after the testator’s death, the testator is rebuttably presumed to have done the mutilation with the
intent to revoke part or all of the will.
c) Rebuttal: Extrinsic evidence can be introduced to rebut presumption of revocation.
5. Effect of revocation on other instruments:
a) depRevocation of a will revokes all codicils to that will.
b) Revocation of a codicil revokes only the codicil, not the underlying will.
c) Where two or more executed copies of the will exist, destruction of one in a manner sufficient to
revoke has the effect of revoking all copies.
d) Destruction of an unexecuted copy has no effect.
6. If a will is lost or destroyed but NOT revoked, it can nonetheless be entered into probate (in all
states) provided these elements can be proved:
a) Contents of the will (e.g. by photocopy or unexecuted copy, or testimony of witnesses)
b) Valid execution; and
c) Reason for unavailability or non-production of the original will.
F. Revival
1. Revoking a will that revoked a prior will:
a) Common law: revives the revoked will.
b) UPC 2-509 (page 290) and some states: Does not automatically revive the prior will.
c) Some states: Cannot revive the revoked will regardless of circumstances; revoked will must be
re-executed to be valid.
2. Mistake and dependent relative revocation: Court may equitably disregard a revocation if:
a) Revocation was premised on a mistake of law or fact, and
b) Would not have occurred but for testator’s mistaken belief that another disposition was valid,
and
c) Negating the revocation and preserving the original disposition would come closer to achieving
testator’s wishes than would intestate succession.
d) Effect: If the other disposition is ineffective, the revocation is also ineffective and the will
remains in effect.
3. Republication by codicil: If the prior (revoked) will has not been physically destroyed, it can be
revived by execution of a valid codicil referring to it. Revoking a codicil leaves the will valid, but
revoking a will revokes all codicils to that will.
4. Re-execution/new will: A revoked will can be re-executed and become a new will, in effect reviving
the original, by signature or acknowledgement by the testator and attestation by two witnesses. Best
practice is to just create a new will.
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G. Meaning of words used in wills
1. Incorporation by reference: (UPC 2-510, page 298) (Majority of states) An extrinsic document not
present when the will is executed may be incorporated by reference if:
a) It is already in existence at the time of execution;
(1) Some states may allow an exception for a list making dispositions of items of tangible
personal property prepared after the time of execution, especially where the value of the
items is primarily sentimental
b) The will sufficiently describes the extrinsic document to allow it to be identified; and
c) The will manifests an intent to incorporate the document. Intent is determined by:
(1) Considering the language used by the testator to express his testamentary designs; and
(2) The circumstances existing at the time of the execution of the will
2. Acts of independent significance (aka non testamentary acts) doctrine (UPC 2-512, page 307): A
will may dispose of property by reference to acts and events that have significance apart from their
significance to the dispositions. These acts may serve to:
a) Identify beneficiaries
b) Identify property
(1) Note: “My house and its contents” serves to identify tangible property within the house, but
not intangible property represented by documents (stock certificates, bank account records)
located within the house
(a) Example: if you make a will giving your car to A, then you die 40 years later, A would
get your car at the time of death. The fact that you got a new car is a fact of independent
significance.
c) Specify that property be disposed of as determined by some other person, e.g. “according to the
provisions of my wife’s will.”
(1) If the wife’s will is already executed this can be handled under incorporation by reference
(see above)
(2) If the reference is to a will to be executed at some point in the future, it must be treated as an
act of independent significance if it to be a valid source of information as to the disposition
of the original testator’s estate
d) Legal list: (UPC 2-513, page 309) allow a will to refer to a written statement or list making
disposition of items of tangible personal property (other than money) even if the list is not in
existence at the time of the execution of the will and has no other independent significance. The
list must:
(1) Describe the items and devisees with reasonable certainty;
(2) Be signed by the testator; and
(3) Be in existence at the time of the testator’s death.
3. Plain meaning and ambiguity: If a will unambiguously specifies a distribution, that distribution must
be carried out; extrinsic evidence to prove another intent by testator is inadmissible.
a) If the will is ambiguous the court should first try to find the testator’s intent within the four
corners of the instrument. If this cannot be done, extrinsic evidence may be introduced to clarify
what is in the will. Extrinsic evidence cannot be used to:
(1) Contradict the contents of the will;
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 (2) Supply new provisions, distributions, or beneficiaries;
(3) Remove provisions, distributions, or beneficiaries;
(4) Completely alter the meaning of the will or part of it.
b) Ambiguity may be either patent or latent. In either case evidence of surrounding circumstances -
amount and nature of property owned, relationships with family members and others, and so
forth - is admissible.
(1) If the ambiguity is patent, evidence of testator’s declarations as proof of intent is not
admissible.
(2) If the ambiguity is latent (e.g. the description in the will could refer to more than one piece
of property or more than one person) evidence of testator’s declarations is admissible.
(3) As always, the time at which testator’s intent should be assessed is the time of execution of
the will.
(4) Court should not and cannot find gifts by implication.
c) Plain meaning rule and mistake (RS 3d 12.1, Page 344): Even in the absence of ambiguity, a will
or other donative document may be reformed to conform to donor’s intent if:
(1) It can be established by clear and convincing evidence that a mistake of fact or law (affected
specific terms of the document, and
(2) The donor’s intent can be established by clear and convincing evidence.
H. Contracts and wills
1. Contrasting claims: Breach of a contract to make, alter, not make, or not alter a will should result in
a contracts action, not a wills action; any issue about the validity or terms of the resulting will
should result in a wills action. Thus the same event can result in both wills and contracts claims.
These related claims may be addressed in an integrated state statute. (See Cal. Probate Code 21700)
2. Usual contract rules apply
a) In order for a promisee to have enforceable contract rights, there must be consideration.
(1) Contract to make a will in exchange for promise to care for testator satisfies this requirement
b) Contract can be proved by
(1) Provisions in the will stating the material terms of the contract
(2) Express reference in the will, plus extrinsic evidence
(3) Writing signed by the decedent
3. Joint and mutual wills
a) Joint wills: A single instrument executed by two or more testators, admissible in probate on the
death of each.
b) Mutual (aka reciprocal) wills: separate substantially similar or reciprocal documents separately
executed by two or more testators
c) Both are revocable at any time during a testator’s life
(1) If executed pursuant to a contract there may be a resultant breach of contract action
(2) (Majority of states) There is no presumption that joint wills are contractual
(3) (Nearly all states) No presumption that mutual/reciprocal wills are contractual
4. Disclaimers by spouses (mostly but not entirely prenuptial agreements):
a) In the absence of an agreement to the contrary, surviving spouse may have the right to:
(1) Elect against or contest the will
(2) Receive an intestate share in the absence of a will
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 (3) Take as an omitted spouse
(4) Receive family maintenance, dower, or other surviving spouse rights
(5) Take pension benefits under ERISA
b) All of these rights can be disclaimed, renounced, or contracted away.
c) Uniform Premarital Agreements Act:
(1) Must be in writing and signed by both parties (UPMA 6)
(2) (UPMA 9) Unenforceable if:
(a) No voluntary consent
(b) Duress
(c) Party did not have access to independent legal representation, or
(d) Agreement did not include
i) Notice of waiver of rights, or
ii) Explanation, in plain language, of rights waived or modified
(e) Party did not receive adequate financial disclosure.
(f) (UPMA 9(e)) Party would become eligible for public assistance as a result of
enforcement
(g) (UPMA 9(f)) A court may refuse to enforce a term in the agreement if:
i) Unconscionable at the time of signing, or
ii) Would cause substantial hardship due to a material change in circumstances after
agreement was signed.
5. Remedies for breach
a) During testator’s life: Generally none
(1) If T repudiates contract after substantial performance by promisee, promisee may claim part
performance, promisor estoppel, or quantum meruit damages
b) After T’s death: T can seek
(1) Damages equal to value of the promised devise or bequest, or
(2) For specific non-fungible property, a constructive trust
6. Contracts not to revoke a will are subject to the same rules, with the additional provisos that where
the contract involves mutual wills:
a) If the first party dies in breach, the survivor ordinarily has no remedy because they can still
change their will
b) If the survivor dies in breach a constructive trust may be imposed for the benefit of the contract
beneficiaries
I. Ademption and exoneration: When specifically bequeathed property is no in the testator’s estate at
death, the bequest is adeemed.
1. There are 4 types of property:
(1) Residuary – prop ID’d as that which remains after everything else has be distributed
(2) General – prop. Given to another comes from general assets of estate w/o regard to source.
(3) Demonstrative – prop. Given comes from particular source (like from my BOA account).
(4) Specific – when transfer all of something, or a unique item. (highest degree of intent).
2. Ademption by extinction: The property has been sold, lost, destroyed, or given away to someone
other than the beneficiary.
a) UPC 2-606, Page 366: Sometimes a money devise is created if the property is addeemed.
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 b) A substantial change in the nature or character of the subject matter of a bequest will operate as
an ademption, a merely nominal or formal change will not
3. Ademption by satisfaction: (UPC 2-609, Page 367), while still alive, has given the property to the
beneficiary
4. Ademption applies only to specific devises and bequests, not to general or demonstrative legacies
(e.g. “My 1912 Rolls Royce Silver Ghost,” not “my car.”)
a) A devise of securities (“50 shares in XYZ Corp.” is treated as general rather than specific where
possible, to avoid ademption; “my 50 shares” would be specific
b) The same could apply to money in extreme circumstances: “The 50 Susan B. Anthony dollars in
the box in my top right desk drawer” would be specific, while ordinarily a gift of money would
be general)
5. Ademption may apply to proceeds of sale
a) Where the proceeds are of the sale of specifically named item, the bequest is adeemed
b) But may not apply (majority) if the gift in the will is of the proceeds rather than of the item itself
(e.g. “I direct my executor to sell my 1912 Rolls Royce Silver Ghost and deliver the proceeds to
Antigone”; if T sold the car inter vivos, Antigone would still be entitled to the proceeds)
6. Gift of T’s interest in property is not adeemed (e.g a gift of “Blackacre” is adeemed if T has sold
Blackacre, but a gift of “all my interest in Blackacre” is not adeemed if T has sold Blackacre and
taken back a mortgage; the interest is then the mortgage interest)
7. Insurance: if proceeds are paid before T death, addeemed, if paid after T death, then X gets the $.
8. Ademption can be partial (e.g. “Blackacre to A,” where Blackacre is a 100 acre tract and T has sold
off ten acres; A would get the 90 remaining acres)
9. Testator’s intent (in no longer owning the property)
a) (Majority) Irrelevant; all that matters is whether the specifically bequeathed property is part of
T’s estate at death
b) Statutory s:
(1) Insurance proceeds for loss of the property are payable to beneficiary (e.g. where Blackacre
has burned down), if paid after T’s death
(2) Proceeds for property taken by eminent domain are payable to the beneficiary, if paid after
T’s death
(3) Where the property is subject to an executory contract, beneficiary is entitled to T’s rights
under the contract
(4) Where there is a specific bequest of stock or related securities and the company issuing the
shares has undergone merger, reorganization, or consolidation, the beneficiary may be
entitled to equivalent shares in the resulting company
(5) Where T becomes incompetent after executing the will and the property is sold or otherwise
disposed of by T’s guardian, the devisee is entitled to the proceeds
10. Exoneration: Under UPC 2-607 (page 368), property passes subject to debts.
J. Accession: Accession is the inverse of ademption, allowing the beneficiary to benefit from increase.
(UPC 2-605, Page 367).
1. Stock splits and stock dividends - increase goes to beneficiary

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 a) Note that a bequest of shares can be classified as general for purposes of ademption (thus
avoiding ademption) yet specific for purposes of accession (to allow the beneficiary to benefit
from a stock split)
2. Increase in value during T’s lifetime goes to general estate
3. Increase in value after T’s death goes to beneficiary, who is deemed owner of the property from the
moment of death
K. Lapse: If beneficiary predeceases testator, the gift to the beneficiary lapses.
1. Beneficiary already dead when will executed: Lapse applies to a beneficiary who dies after
execution of the will. If the beneficiary is already dead when the will is executed, the gift is void
rather than subject to lapse. The gift may nonetheless be saved by anti-lapse statutes.
2. Anti-lapse statutes (nearly all states), must be a relative: The gift is saved from lapse if
a) Beneficiary was within a specified degree of relationship to T, and
(1) Traditionally: Descendants
(2) UPC 2-603(Page 390) and some states: expanded to include stepchildren, ancestors up to
grandparents, and other descendants of grandparents (aunts, uncles, cousins)
b) Left descendants who survive T.
c) Anti-lapse statute does not prevail over a contrary provision in the will
(1) Most states: Words of survivorship are a sufficient contrary provision
(2) UPC: Words of survivorship alone are not sufficient
d) (Majority) Applies only to gifts by will
e) UPC 2-706 & 2-707 (page 388): Applies to some non-probate transfers
3. Lapse in the residue
a) Common law: No residue of a residue
(1) Instead the share devised to the deceased beneficiary passes under intestacy rather than to the
remaining residuary beneficiaries
b) Modern majority: Deceased beneficiary’s share passes to surviving residuary beneficiaries
(1) If anti-lapse statute applies, it takes precedence and deceased beneficiary’s share passes as
specified by the statute
4. Class gifts: Where a class member predeceases T, surviving class members take the gift.
a) Generally, naming an individual prevents the gift from becoming a class gift, but if the rest of
the will shows that testator intended it to be a class, testator’s intention will prevail. A gift from
A to X and a class of persons represents a class gift.
b) Unless anti-lapse statute applies, deceased class member’s heirs take nothing. (Class is
determined at moment of death, not moment of execution.)
c) If deceased class member was within scope of anti-lapse statute, the statute applies as usual.
L. Restraints on testator’s power
1. Protection of children
a) No requirement to bequeath anything to children
b) Children omitted accidentally rather than intentionally may be protected by pretermitted child
statutes
(1) Usually this includes children born or adopted after the execution of the will, but may also
include children mistakenly believed to be dead at the time of execution

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 (2) Exceptions: (UPC 2-302, page 420): Most statutes will not allow the pretermitted child to
take an intestate share if
(a) The will indicates that the child was intentionally omitted;
(b) T provided for the omitted child by a transfer outside the will (such as a non-probate or
inter vivos transfer) with the intent that the transfer substitute for a testamentary gift; or
(c) At the time of execution T had other children and devised all or substantially all of the
estate to the other parent of the omitted child
(3) In nearly all states, applies only to children, not to more remote descendants
2. Protection of spouses: Nearly every state allows a spouse to tortious against the will to receive either
1/2 or 1/3 of the estate. (See UPC 2-301, Page 434)
a) Typically 1/2 if no children or one child, 1/3 if more than one children
b) In some states (including Ark.) the amount may depend on the length of the marriage
c) In community property states the spouse already has a right to 1/2 of the property acquired
during the marriage
d) Elective share usually calculated as a share of net estate
(1) In some states it may be calculated as a share of the augmented estate (similar to civil law
legitim) to prevent the use of inter vivos transfers to defeat the surviving spouse’s elective
share
e) Notice of intent to elect against the will must be filed within a statutorily set period (typically six
months after the will is admitted to probate)
f) Ordinarily only the spouse may make the election
(1) Guardian may make the election for a spouse under a disability
(2) If spouse dies after T but before making the election, the guardian or other personal
representative may not make the election for the spouse. The election is for the benefit of
the spouse, not of spouse’s heirs
g) Elective share should be paid in manner that causes least disruption to overall distribution.
(1) First in cash or kind from assets that would have passed to the spouse under the will
(2) Second subject to abatement rules applicable to creditors’ claims
(a) Must elect within 9 months, UPC 2-211, Page 440
(b) Calculating Elective Share:
i) At common law, spouses could not elect against a trust:
ii) UPC 2-203 (page 457):
(1) Elective share percentage (50%)
(2) Marital estate (use table)
(3) Calculate elective share amount (marital estate x 50%)
(4) Apply any voluntary transfers to the spouse
(5) Meet the balance
iii) Custodial trust option (UPC 2-212, Page 458)
h) Statutory entitlements
(1) Social Security & ERISA: Preempt state statutes
(a) Social Security: Surviving spouse is entitled to the greater of their own or their spouse’s
benefits

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 i) If the surviving spouse receives a government pension 50% greater than they would
receive from Social Security, the Social Security benefit is eliminated
(b) ERISA: Surviving spouse is primary beneficiary of a pension plan regardless of who is
named as primary beneficiary in the will, unless
i) Waived by spouse and waiver witnessed by notary or plan representative
ii) Beneficiary designation not affected by divorce
(2) Homestead: In most states family residences and family farms are shielded from decedents’
creditors
(a) Statute will set a maximum acreage protected
(b) May allow surviving spouse and/or minor and dependent children to continue to occupy
the homestead despite any disposition of the residence in the will
(c) UPC does not recognize, but allows a monetary exemption of $22,500 which goes to the
surviving spouse or children. (See page 438).
(3) Family maintenance: UPC 2-204 (page 438) and nearly all states authorize the payment of a
family maintenance allowance to the surviving spouse and/or minor children
(a) May be limited in amount and/or time
(b) Provides support during time of probate administration only
(c) Is in addition to, not deducted from, any amount passing to those persons under the will
or intestate share
(4) Tangible personal property (household furnishings, appliances, personal effects, farm
equipment, personal effects, and possibly vehicles) may also be set aside for the surviving
spouse and/or minor and dependent children; these are not deducted from the share of those
persons, and are exempt from creditors’ claims either than security interests. (see UPC 2-
403, Page 438).
(5) Dower and curtesy: At common law, one-third of a deceased husband’s land was set aside
for his widow (dower), and one-third of a deceased wife’s land was set aside for the widower
(curtesy), if issue were born of the marriage. Now largely replaced by elective share.
(6) Universal Succession: In many civil law countries an estate may pass by universal
succession directly to the heirs, without probate or other administration. Found in limited
instances in 6th US, such as Cal. Probate Code 13500-13660 (between spouses only) or UPC
3-312 to 3-322. (see page 439).
M. Administration of estate
1. Administrative process: Any interested person may file a petition to open probate. Necessary
documents to be opened with or soon after the petition include
a) Proof of death (usually a death certificate)
(1) Without proof of death the probate court has no jurisdiction
b) Will, if any
(1) Custodian of a will must produce it within a specified, fairly short time (30 days is typical)
after T’s death
(2) Proof of the contents of a lost or destroyed will may be introduced in lieu of the will itself
(3) Will must be offered for probate within a specified time (3 years under UPC 3-108)
c) Venue and choice of law
d) Personal representative
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 (1) Administration powers of the personal representative
e) Many states allow for informal probate of uncontested estates below a certain size
f) Once will has been probated and a short statutory period has passed afterward, the will is
immune from collateral attack
2. Personal representative: Any legally competent adult with contractual capacity may serve as
administrator of an intestate estate or executor under a will unless otherwise disqualified. The
personal representative serves as an officer of the probate court.
a) Bond: The personal representative must post a bond with the court, unless the will provides that
the personal representative is to serve without bond.
(1) Once the bond is filed or waived, the court issues letters testamentary or letters of
administration certifying the personal representative’s authority to act on behalf of the estate.
b) When an executor is named in the will that person will ordinarily be appointed, unless
disqualified, deceased, or declining to serve
c) When the will names no executor or the executor named in the will is unable or unwilling to
serve, the court will appoint an administrator cum testamento annexo
d) In general, the order of preference for an executor, administrator cum testamento annexo or an
administrator of an intestate estate is
(1) Person named in the will as executor
(2) Surviving spouse, if a beneficiary
(3) Any beneficiary
(4) The surviving spouse, if not a beneficiary
(5) Any other heir
(6) A creditor
e) Powers and duties: The personal representative is a fiduciary who takes all steps necessary to
wind up the decedent’s affairs, including but not limited to
(1) Notifying beneficiaries, heirs, and creditors
(2) Discovering and collecting the decedents assets and filling an inventory with the court
(3) Managing estate assets
(4) Paying expenses of and claims against the estate
(5) Filing tax returns and paying income taxes, property taxes, and other taxes owed by the
estate or on estate assets
(6) Distributing the property to the beneficiaries or heirs
f) Compensation
(1) Set by statute, increasing with size of the estate
(2) May also be set in the will, in which case the personal representative may elect either the
statutory amount or the amount set in the will
(3) The personal representative may waive compensation
(4) May be denied for dishonesty, fraud, bad faith, willful neglect, or other wrongful conduct
3. Payment of claims
a) In most states the personal representative must give notice to creditors
(1) May be by publication

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 (2) Must be mailed or delivered in person to known or reasonably ascertainable creditors (incl.
hospitals, public utilities, and other creditors with whom the decedent is known to have had
recent or ongoing dealings)
b) Nonclaim statutes: In most states creditors’ claims are barred unless filed within a set time
(1) Usually a fairly short period of time after notice is given or a longer period of time after
decedent’s death
c) Order of preference
(1) Administration expenses
(2) Funeral expenses and expenses of the last illness
(3) Family allowance
(4) Tax claims and similar preferred debts under federal law
(5) Secured debt
(6) Judgments entered against the decedent during his lifetime
(7) All other claims
d) Exoneration of liens: At common law beneficiary could demand payment from the residue of
liens on devised property, Under UPC 2-607 and in most states this is not done unless the will
specifically directs; otherwise property passes to the beneficiary encumbered by the lien
4. Abatement: If the assets of the estate are insufficient to pay all claims and satisfy all devises,
bequests, and legacies, the payment is reduced by abatement. An order of abatement may be
specified in the will; absent such specification, the order of abatement is generally:
a) Property passing by intestacy
b) Residue
c) General legacies, pro rata
d) Specific devises, bequests, and legacies
(1) Where the property from which a demonstrative legacy is to be satisfied is in the estate at
death, the demonstrative legacy is treated as a specific legacy for abatement purposes. To
the extent that funds from that source are insufficient, however, the demonstrative legacy is
treated as a general legacy
e) Within each category some states specify that personal property is abated before real property
5. Closing the estate
a) After a minimum of one year, the personal administrator or any interested person may petition
the court for an order of complete settlement of the estate, closing the estate.
(1) Most states: Final accounting is required
(2) Some states and UPC 3-1003: Not required
N. Future Interests
1. Interests retained by the settlor, testator, or grantor: (not subject to RAP):
a) Possibility of reverter: Created when a transferor conveys a determinable estate, using words of
temporal limitation
b) Right of entry (aka power of termination or right of termination): Created when a transferor
conveys an estate subject to condition subsequent, using words of condition (toA, but if X, then
to B)
(1) Unlike other future interests, the right of entry does not function automatically

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 c) Reversion: Created when a grantor or testator transfers a vested estate of a lesser quantum than
that which they have and does not retain a possibility of reverter or right of entry
(1) Hierarchy of estates, from greater to lesser:
(2) Fee simple
(3) Fee tail
(4) Life estate
(5) Leasehold
2. Interests created in parties other than the settlor, testator, or grantor:
a) Remainders: Whenever a document conveying an interest in land could have created a reversion
because the grantor conveyed a lesser estate than that which they owned, but instead conveys
that interest to a third party, the interest created is a remainder.
(1) A remainder need not be co-extensive with the interest retained by the grantor; a document
may create a present possessory estate, a remainder and a reversion.
(2) Remainders may be
(a) Vested or
(b) Contingent.
(3) Remainders may follow a fee tail, life estate or (in modern US law) a leasehold. Remainders
may not follow a fee simple.
(4) Vested remainders are certain to become possessory upon the expiration of the prior estate
created at the same time. That is, they are
(a) Given to an ascertained person AND
(b) Not subject to a condition precedent (other than the natural termination of the preceding
estates, of course)
(c) Types of vested remainders:
i) Indefeasibly vested remainder;
ii) Defeasible vested remainders:
(1) Vested remainder subject to total divestment (aka vested remainder subject to
condition subsequent);
(a) A remainder is subject to total divestment if the occurrence of some condition
subsequent can create an interest in some other party that can divest the
remainderperson’s interest, e.g. “To A for life, then to B and her heirs, but if
B does not survive A to C and his heirs.”
(2) Vested remainder subject to partial divestment (aka vested remainder subject to
open)
(a) Created in a class of persons one of whose members is already ascertained,
(b) There is no condition precedent, AND
(c) New persons may still be added to the class:
(d) Example: “To A for life, then to A’s children and their heirs” where A already
has at least one child at the time of the grant
(3) A remainder may be subject to both partial and total divestment.
(5) Contingent remainders: A remainder is contingent rather than vested if it is
(a) Given to an unascertained person OR

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 (b) Made contingent upon the occurrence of a condition precedent (some event other than
the natural termination of the preceding estates.)
i) Examples:
(1) “To A for life, then to the heirs of B,” where B is still alive. The takers are
unascertained because no one is heir to the living.
(2) “To A for life, then to B and her heirs if B survives A, and if B does not survive
A to C and her heirs.” The words “if B survives A” create a condition precedent,
as do the words “and if B does not survive A.”
(3) B and C thus each have a contingent remainder. Only one of these can ultimately
become a possessory estate; these are alternative contingent remainders.
(c) Where an instrument is ambiguous, courts will prefer to construe it in favor of creating a
vested remainder rather than a contingent remainder.
b) Executory interests are divesting interests created in a person other than the grantor or the
grantor’s heirs. In order to become possessory, the executory interest must
(1) Divest or cut short some interest in another transferee (a shifting executory interest), OR
(a) Where the grantor could have retained a possibility of reverter or a right of entry, but
instead gave that interest to a third party, that party holds a shifting executory interest.
(2) Divest the transferor in the future (a springing executory interest).
(3) Whether an executory interest is springing or shifting has no legal consequence; the two
types are treated identically.
(4) Both are ordinarily treated as contingent interests.
c) Rule Against Perpetuities (RAP): No interest is good unless it must vest, if at all, not later than
twenty-one years after some life in being at the creation of the interest.
(1) Interests subject to the rule:
(a) Contingent remainders
(b) Executory interests
(c) Gifts to a class of people (i.e. vested remainders subject to open)
(2) Interests not subject to the rule
(3) Vested remainders
(a) But note that gifts to a class are treated for RAP purposes as not vested in any member of
the class until vested in all.
(4) Interests retained by the transferor (reversions, rights of entry, and possibilities of reverter)
even though they are subject to conditions precedent
(5) Effect of the rule: Interests that may vest too remotely are stricken from the conveyance; in
effect, the conveyance is read as if the portions granting such interests have been lined out.
(6) The Rule Against Perpetuities today: The RAP has been modified or abolished in the
majority of US jurisdictions
(a) Some states have a wait-and-see RAP: The question is not whether a future interest
might vest outside the measuring period, but whether it actually does.
(b) More states (including Arkansas) have adopted the Uniform Statutory Rule Against
Perpetuities (USRAP), which takes a wait-and-see approach for ninety years rather than
for a life in being plus twenty-one years.

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 (c) The cy pres doctrine: In some states conveyances of interests that violate the RAP are not
stricken from the grant, but reformed with the goal of carrying out, to the greatest extent
possible, the grantor’s intent within the limits of the rule.
(d) Many states combine these modifications of the RAP in various ways.

III. Trusts
A trust is a fiduciary relationship in which a trustee holds legal title to property (the trust corpus) for the
benefit of the beneficiaries, who hold equitable title. Trusts can be express, implied, or resulting.
A. Express: Arising from the expressly stated intention of the owner of the property (settlor). Settlor,
Trustee, and Beneficiary cannot all be the same). Requires (e.g. UTC 402(a) Page 508):
1. A settlor
a) Must have capacity, as for wills
b) Must not be subject to duress, undue influence, or fraud
c) Must have the power to convey the property to the trust
2. Present intent to create a present trust relationship
a) Can be manifested by words, writing, or conduct
b) Delivery of a deed may manifest intent
c) Intent must be manifested at a time when the settlor owns the property
(1) Thus the intent must be manifested before the conveyance
d) Must be intended to take immediate effect
(1) The corpus can be a future interest
(2) A contract to make a trust in the future will also suffice, although a gratuitous promise will
not
e) Precatory language (expressing a hope, wish, or suggestion): “to A in the hope that A will use
the property for the benefit of B” does not satisfy the intent requirement unless:
(1) Directions are definite and precise, or
(2) Directions are addressed by a decedent to their personal representative, or
(3) Failure to impose a trust results in an unnatural disposition, or
(4) Settlor had already been supporting beneficiary prior to executing the instrument, and
beneficiary would be unable to support themself if a trust were not created
3. Competent trustee
a) Must have legal and administrative capacity to take title to and manage property
(1) Minors and mentally disabled persons are thus disqualified
(2) Some states may limit the right of a business entity (partnership or corporation) to act as
trustee
b) Trustee can be replaced during operation of trust, unless a specific trustee is necessary to achieve
the trust purpose
c) Trustee accepts trusteeship by accepting delivery of the trust property or by method set out in
trust document, within a reasonable time (UTC 701)
d) Person designated as trustee can reject trusteeship
(1) If the trust is created in a will (a testamentary trust), the executor can designate another
trustee

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 (2) If the transfer is inter vivos, it fails for want of delivery; the settlor can try again with a new
trustee
e) Trustee must have duties
(1) If duties are not stated in the trust instrument they may be implied by court
4. Identified beneficiary (UTC 103, Page 530)
a) Any natural or artificial person can be a beneficiary
(1) As long as there is at least one ascertained beneficiary, there can also be unascertained
beneficiaries (e.g. unborn children)
(2) Class as beneficiary: May be open, but must be reasonably definite
(a) If insufficiently definite, gift to class may be viewed as a gift to or power of appointment
in the trustee
(b) UTC 402(c) allows trustee to select beneficiaries from an insufficiently definite class
(e.g. “relatives” or “neighbors”)
(c) An open class inevitably means that the group beneficiaries may increase or decrease
(3) A current beneficiary or first-line remainderperson can enforce the terms of the trust
(4) Designated beneficiary may refuse, by words (including a formal disclaimer) or conduct
(a) If the trust is testamentary, the disclaimer is treated in the same way as disclaimer of
other benefits under a will
(5) Anti-lapse statutes typically apply only to wills, not to trusts, although many states and UPC
2-707 apply anti-lapse to some future interests created in trusts
(a) If the future interest is contingent on the survival of the interest holder, anti-lapse only
applies if there is no alternative provision in the event of non-survival
(6) UPC 2-804 and some states treat divorce as revoking provisions in a revocable trust in favor
of the ex-spouse, as with wills
b) Charitable trusts can have broad purposes rather than specific beneficiaries (e.g. “to fund the
education of law students in the state of Arkansas”) UTC 405, Page 533
(1) A charitable trust can be enforced by the state attorney general, but a trust protector can also
be appointed.
(2) If the trust is not for a class of indefinite beneficiaries, it must be for a specific charitable
organization
(3) A trust for a political cause can be charitable, but a trust for a particular political party cannot
be
(4) Charitable trusts are not subject to the Rule Against Perpetuities
(5) Mixed trusts (with both charitable and noncharitable purposes) do not benefit from the
special rules applying to charitable trusts
(a) However, a court may find that two separate trusts were created by the settlor, if the
settlor assigned some property or period of time to each of the two classes of purpose
(6) Cy Pres: equitable power to reform a charitable trust by finding a general charitable purpose.
c) Honorary trusts: Have no beneficiary.
(1) Common purposes are:
(a) Care of a grave
(b) Care of animals, who must be alive at your death, and the trust will cease at the animal’s
death.
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 (2) May be void under the Rule Against Perpetuities
(3) UTC 409(1) limits charitable trusts to 21 years, other than trusts for the care of an animal
(4) UTC 408(a) Page 542: Trusts for the care of an animal are valid for the life of the animal.
(5) UTC 408(b), 409(2): A person other than the trustee can be designated to enforce the trust.
d) An unincorporated association cannot be a beneficiary
e) A trustee can be a beneficiary, but a sole trustee cannot be the sole beneficiary
(1) If the sole trustee is also the sole beneficiary, legal and equitable titles merge and the trustee
is the owner of the property
5. Express trusts can be created:
a) Inter vivos, by declaration of trust
b) Inter vivos, by transfer of property
c) By will
B. Implied: Arising from the presumed intention of the settlor.
C. Resulting: An equitable remedy available to courts in cases of unjust enrichment or other wrongful
conduct.
IV. Elements of a valid trust
A. Settlor: The person who establishes the trust.
1. Must have capacity, as for wills
2. Must not be subject to duress, undue influence, or fraud
3. Must have the power to convey the property to the trust
B. Trustees
1. Private and corporate trustees
2. Directed trusts: Trust protectors
3. Court can appoint a trustee
C. Beneficiaries
1. Private trusts
2. Charitable trusts
a) Monitoring charitable trusts
3. Honorary trusts
D. The trust corpus/res/property: Every trust must have a res
1. Must be ascertainable: currently existing interest in currently existing property.
2. Can be any sort of property: Real, personal, or intangible, including:
a) Future earnings under an existing contract
b) Other interest in a contract or promissory note
c) Future crops
d) Unborn animals
e) Royalties
f) Intellectual property
g) Future interests
3. Can be legal or equitable
4. If not all of settlor’s property, must be described in a way that clearly separates it from settlor’s
other property
5. The trust property can NOT be:
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 a) A debt owed by the trustee
b) A gratuitous promise
V. Modification and termination of trusts
A. By the settlor
1. UTC 602(a): Trust is presumed revocable unless expressly stated otherwise
2. Common law and many states: Trust is presumed irrevocable unless expressly stated otherwise
B. By the beneficiaries:
1. UTC 411(a): A trust may be terminated or modified with the consent of the settlor and all
beneficiaries, even if doing so frustrates a material purpose of the trust.
2. UTC 411(b): A trust may be terminated or modified with the consent of all beneficiaries, so long as
doing so does not frustrate a material purpose of the trust.
3. Consent requirement includes unascertained beneficiaries, such as children not yet born. A
representative can be appointed to safeguard the interests of minor or unascertained beneficiaries.
4. UTC 411(e): If not all beneficiaries consent, trust may still be modified or terminated with court’s
permission if:
a) Trust could have been modified or terminated if all beneficiaries had given consent, and
b) The interest of the non consenting beneficiary can be adequately protected
c) Spendthrift provision is generally treated as precluding early termination, as shielding trust
assets from creditors is a retrial purpose. UTC contains an optional contrary provision, not
widely adopted.
5. On proper termination by beneficiaries, trustee may distribute trust assets as directed by the
beneficiaries.
C. By trustee
1. UTC 414: The trustee can terminate the trust if the assets total less than $50,000 and the amount is
insufficient to justify the cost of administering the trust.
a) Assets must then be distributed in a manner consistent with trust purpose.
2. UTC 417: The trustee can combine or divide trusts, generally for administrative efficiency, so long
as:
a) Doing so does not frustrate the purpose of the trust
b) Doing so does not impair the rights of any beneficiary
c) All beneficiaries are given notice (consent is not required)
D. By the court (UTC 412):
1. A court can terminate or modify a trust if:
a) Unanticipated circumstances threaten the purpose of the trust
b) Continuation of the trust on existing terms would be impracticable or wasteful
2. If the trust is terminated, assets must be distributed to the beneficiaries in a manner consistent with
trust purpose.
3. UTC 404: No trust may be created for any purpose that is:
a) Illegal (including defrauding the settlor’s creditors)
b) Contrary to public policy
c) Impossible to achieve
VI. Class Gifts
A. Increase in Class
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 1. Closure by Convenience – The maximum membership in the class is determine when the time for
distribution has arrived. The class may increase until that time, and persons born thereafter are
excluded.
a) Exceptions to Closure by Convenience:
(1) IF at the time an interest was to become possessory (a class member could demand a share)
and there was no member of the class then in existence to demand a share, then the rule will
not apply.
(2) IF a specific sum is given to each member of a class, the class closes at the death of the
settlor, regardless of whether any members of the class are then alive.
2. By default, classes close upon the testator’s death, but proof by the preponderance of the evidence
that the testator intended something else will be followed.
B. Decrease in Class
1. The testator’s intent, as expressed in the will, will control when vesting occurs. Absent clear and
unambiguous language, the presumption of early vesting will control.
VII. Powers of appointment: A power that lets the holder make disposition of a property in a nonfiduciary
capacity. e.g. “one thousand dollars, income to A for life, then as she may direct in her will.”
A. Elements
1. Donor: Typically the settlor (or testator)
2. Donee: The person who exercises the power
3. Appointee (aka object of the power): The person(s) in favor of whom the donee exercises the power
4. Takers in default: Person(s) named by the donor as alternate takers if the donee does not exercise the
power or exercises it ineffectively
a) If a residuary clause can be constructed as exercising a power of appointment, it will be
presumed to exercise that power.
(1) Majority and UPC (Page 804) an open-ended residuary clause does not exercise the power of
appointment, but will allow extrinsic evidence to show that the testator’s intent was to
exercise it.
(2) Minority – a general residuary clause is one that makes no mention of the power of
appointment
B. Exercise
1. The power may be designated by the donor as exercisable by the donee as either testamentary or
inter vivos
2. A general power of appointment allows the donee to exercise the power in favor of any or all of
these groups (IRC 2041(b)):
a) The donee
b) The donee’s estate
c) The donee’s creditor
d) The donee’s estate’s creditor
3. A general power of appointment is included in the donee’s gross taxable estate and is subject to a
surviving spouse’s elective share
C. Scope
VIII. The Rule Against Perpetuities (again!): No interest is good unless it must vest, if at all, within 21
years of a life in being at the time of the creation of the interest.
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A. Reformed or abolished in majority of states; USRAP (Page 859), (90 year wait and see) is a common
alternative
B. Some estates now allow perpetual or very long-term trusts
C. The rule does not start to run until testator’s death. Be careful of non-revocable trusts; the start
running when created.

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