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Trusts and Estates Outline

Wills and Will Substitutes

I. What property is the property of the probate estate?a. Probate Estateproperty that the decedent owns an interest in at their death that is subject to

probate and distribution via intestacy. b. RestatementProbate Estatethe estate subject to administration under applicable laws relatingto decedents estates. The probate estate consists of certain property owned by the decedent atdeath and property acquired by the decedents estate at or after the decedents death.

i. Here, actual ownership, not ownership is substance, is required. Actual ownership mustalso be beneficial; non-beneficial ownership, such as that held by a trustee, is not sufficient.

ii. Property in which the decedent owned an interest immediately before death is not includedin the probate estate if the decedents interest expires upon death, such as property in whichthe decedent possessed a life estate or a joint tenancy.

iii. Property included in the probate estate:1. property in which the decedent has outright beneficial ownership, such as a fee

simple interest in a home;2. all of a spouses separate property and half of a spouses community property;3. indefeasibly vested remainderbecause the interest does not expire on the death of

the decedent, the future interest is part of the probate estate;4. contingent remainders that do not expire on the death of the decedent become part

of the probate estate because they do not expire on decedents death, and thus thedecedents estate retains a future interest;

5. Life insurance policies are part of the decedents estate only if the decedent namedhis estate as beneficiary of the policy;

6. Estate trustwhere a decedent is an income beneficiary of a trust, and the corpus is payable to the decedents estate on the death of the decedent, the corpus is part of

the probate estate;iv. Property not included in the probate estate:1. life insurance policies payable to a beneficiary other than the decedents estate;2. contingent remainders that expire on the death of the decedent;3. property held in a joint tenancy;4. property held by the decedent in non-beneficial ownership, such as where the

decedent is a trustee of a trust;5. Revocable trusta revocable trust is able to be revoked during the lifetime of the

donor, and may be amended, modified, etcthe trust terms dictate the distributionof the trust property on death of the donor, and thus it is not included in thedecedents probate estate as long as the decedent did not revoke the trust whilealive.

v. Property Acquired After Death: a decedents probate estate may sometimes include property that was acquired after the decedents death.

1. Dividends, interest, and rents earned by assets of the decedents probate estate become part of the probate estate.

2. Posthumously awarded bonuspart of the probate estate even though the decedenthas no contractual right to the bonus.

3. Devise to the estate of a deceased personwhere another person devises property to the estate of another, that property becomes part of the decedents probate estate.


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vi. Property acquired at the instant of deathincluded in the probate estate.1. Ex=wrongful death recovery payable to decedents estate under a survival statute.

c. The net probate estate is the probate estate after deduction for family, exempt property, andhomestead allowances, claims against the estate (including funeral expenses and expenses of administration), and taxes for which the estate is liable. Subject to overriding claims and rights

provided by applicable law, such as the right of the decedents surviving spouse to take an elective

share or to elect other marital rights, the decedents net probate estate passes to the decedentsheirs or devisees by intestate or testate succession.i. TaxesLiability for the decedents income taxes for the year of death and for the estates

income taxes falls on the decedents probate estate, as do any other taxes owed by thedecedent at death, such as federal gift taxes and local real estate taxes, and any other taxesincurred by the estate.

ii. Family Allowancethe UPCs family allowance is designed to provide the survivingspouse and minor dependent children a reasonable allowance out of the estate for their maintenance during the period of administration; the family allowance is not chargeableagainst any benefit or share passing to the spouse or children by intestate succession, byelective share, or by will, unless the will provides otherwise.

iii. Exempt propertyUPCs exempt property allowance protects certain property such ashousehold furniture, automobiles, furnishings, appliances, and personal effects from theclaims of creditors.

iv. HomesteadThe UPCs homestead allowance grants a lump sum payment.II. Validity of Will Substitutes

a. A will substitute is an arrangement respecting property or contract rights that is established duringthe donors life, under which

i. The right to possession or enjoyment of the property or to a contractual payment shiftsoutside of probate to the donee at the donors death; and

ii. Substantial lifetime rights of dominion, control, possession, or enjoyment are retained bythe donor.

b. To be valid, a will substitute need not comply with the statutory formalities required for a will.c. Property subject to a will substitute is not probate property at death because it is then treated as nolonger owned by the donor. The traditional explanation for why a will substitute is not a will is thata will substitute transfers ownership during lifeit effects a present transfer of a non-possessoryfuture interest or contract right, the time of possession or enjoyment being postponed until thedonors death.

i. Life insurancea life insurance policy is a third-party beneficiary contract; when used as awill substitute, the beneficiary designation in the policy makes a present donative transfer of a contract right to collect the proceeds of the policy on the insureds death; thus, the

beneficiary designation is treated as conferring a contract right on the beneficiary.ii. Pension and employee benefits accountsthe beneficiary designations in these types of

benefits make them a will substitute.iii. Joint tenancies and other forms of undivided ownership with the right of survivorship

pass outside of probate to other tenants in equal, fractional shares.iv. Multiple party accountsif the account has a right of survivorship or payable on death

clause, the balance on hand in the account at death passes outside probate to the survivor.v. POD and TOD arrangementsthe benefit here is that these types of designations operate

to pay or transfer outside of probate to the designated beneficiary, but, unlike jointtenancies, ownership and control is not shared while the decedent is still alive.


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III. Intestacy(ultimate default) even if a decedent has a will, if the will is no good then it is as if thedecedent died without a will and thus probate estate passes via intestacy.a. Three levels of analysis:

i. Questions of fact1. Is there a marital agreement ? UPC 2-213 Waiver of right to elect and of other rights.

a. The right of election of a surviving spouse and the rights of the survivingspouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, partially or wholly, before or after marriage,

by a written contract agreement, or waiver signed by the surviving spouse. b. A surviving spouses waiver is NOT ENFORCEABLE if the surviving

spouse proves that:i. He or she did not execute the waiver voluntarily;

ii. The waiver was unconscionable when it was executed and, before

execution of the waiver, he1. was not provided with a fair and reasonable disclosure of the property or financial obligations of the decedent;

2. did not voluntarily and expressly waive, in writing, any rightto disclosure of the property or financial obligations of thedecedent beyond the disclosure provided;

3. Did not have, or reasonably could not have had, an adequateknowledge of the property or financial obligations of thedecedent.

c. An issue of Unconscionability of a waiver is for decision by the court as amatter of law.

d. Unless it provides to the contrary, a waiver of all rights or equivalentlanguage, in the property or estate of a present or prospective spouse or acomplete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homesteadallowance, exempt property, and family allowance by each spouse in the

property of the other and a renunciation by each of all benefits that wouldotherwise pass to him or her from the other by intestate succession or byvirtue of any will executed before the waiver or property settlement.

2. Did the spouse/heir survive the decedent?a. Considerations

i. Must survive decedent by at least 120 hours2-104anindividual who fails to survive the decedent by 120 hours is deemedto have predeceased the decedent for purposes of homesteadallowance, exempt property, and intestate succession, and thedecedents heirs are determined accordingly.

ii. Must surviveUPC 1-107Evidence of death or status1. death occurs when an individual is determined to be dead;2. has sustained either


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a. irreversible cessation of circulatory or respiratoryfunctions, or

b. Irreversible cessation of all functions of the entire brain, including the brain stem. A determination of death must be made in accordance with acceptedmedical standards.

3. Date and place of marriage?4. Date and place of divorce/annulment?5. Date and place of premarital agreement?6. date, place, and birth of children

a. birth b. non-maritalc. prior marriaged. adoption

ii. Questions of law1. Survivorship; did the spouse/heir survive the decedent? 120 hours?2. Validity of the marriage to decedent/ is the alleged spouse the decedents spouse?

a. Also, here remember putative spousei. Putative spouses are spouses who have cohabitated with each other and are not married in the

1. good faith belief that they were marriedii. is a putative spouse until

1. knowledge of the fact that he is not legally marriedterminates his status and prevents acquisition of further rights.

iii. A putative spouse acquires the rights conferred on a legal spouse, but a putative spouses rights do not supersede the rights of the legalspouse

iv. If there is a legal spouse or other putative spouses, then the courtshall apportion property, maintenance, and support rights among theclaimants as appropriate in the circumstances and in the interests of

justice. b. and common law spousesonce a couple is married by common law

marriage, that couple has to have a formal divorce in order to be treated asno longer married to one another.

3. Validity and impact of the premarital agreement? 2-213(d)4. Relationship of the spouse to the children? UPC 2-114

a. An individual is the child of his or her natural parents, regardless of the parents marital status.

b. An adopted individual is the child of his adopting parent or parents and notof his natural parents.

c. An individual who is adopted by his or her stepparent (the spouse of thecustodial parent) becomes part of the adopting parents family for inheritance purposes but also continues to be part of the family of thecustodial natural parent.

d. With respect to the noncustodial natural parent, the adopted individual andthe individuals descendants continue to have a right of inheritance fromand through that noncustodial natural parent, but that noncustodial natural


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parent and that noncustodial natural parents family do not have a right toinherit from or through the adopted individual.

e. Neither natural parent can inherit from or through a child unless that natural parent has openly treated the child as their own and has not refused tosupport the child.

f. An individual in gestation at a particular time is treated as living at that time

if the individual lives 120 hours or more after birth.g. A man is presumed to be the father of a child if i. He and the mother of the child are married when the child is born, or

ii. He and the mother of the child were married to each other and thechild is born within 300 days after the marriage is terminated bydeath, annulment, etc

5. Are there surviving parents of the decedent?iii. Applying the statute

b. Initial Provisionsi. A decedent who dies without a valid will dies intestate.

ii. A decedent who dies with a valid will that does not dispose of all of the decedents net

probate estate dies partially intestate.iii. The decedents intestate estate, consisting of that part of the decedents net probate estatethat is not disposed of by a valid will, passes at the decedents death to the decedents heirsas provided by statute.

c. UPC 2-101 Intestate Estatei. Any part of a decedents estate not effectively disposed of by will passes by intestate

succession to the decedents heirs as prescribed in the UPC, EXCEPT AS MODIFIED BYA DECEDENTS WILL.

ii. A decedent by will may expressly exclude or limit the right of an individual or class tosucceed to property of the decedent passing by intestate succession. If that individual or member of that class survives the decedent, the share of the decedents intestate estate to

which that individual or class would have succeeded passes as if that individual or eachmember of that class had disclaimed his intestate share.d. UPC 2-102 Share of Spouse

i. The intestate share of a decedents surviving spouse is:1. the entire estate if:

a. no descendant or parent of the decedent survives the decedent (no parents,no kids); OR

b. All of the decedents surviving descendants are also descendants of thesurviving spouse and there is no other descendant of the surviving spousewho survives the decedent (all kids common, all kids to spouse).

2. the first $200,000, plus three-fourths of any balance of the intestate estate, if nodescendant of the decedent survives the decedent, but a parent of the decedentsurvives the decedent (no kids, parents alive) *least amount of tension;

3. the first $150,000, plus one-half of any balance of the intestate estate, if all of thedecedents surviving descendants are also descendants of the surviving spouse andthe surviving spouse has one or more surviving descendants who are notdescendants of the decedent (blended, SS has kids from prior marriage, mid-ground) *mid-tension, not as a great as (4);

4. The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedents surviving descendants are not descendants of the surviving


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spouse (blended family, divided loyalties, reserve most for kids; in CO, if any kidsare minors, SS gets half of the estate without $100k first take) *Greatest tension.

5. *in all of the above cases, the lump sum must be understood in addition to the probate exemptions and allowances to which the surviving spouse is entitled under the UPC.

e. Intestate Share of Heirs Other Than Surviving SpouseUPC 2-103

i. Rules Common to All Representation Statutes1. Descendants get only what is available after surviving spouse gets the share towhich they are entitled.

2. if decedent is survived by some or all of his/her children (first generationdescendants) AND there are no grandchildren or later-generation descendants of achild of decedents who predeceased decedent, the entirety of decedents intestateestate is divided equally, i.e. per capita, among the surviving first generationdescendants. And that is the end of the inquiry. Thus, in other words, one must look to the representation rules ONLY if a child of decedent predeceased him/her andthat child left at least one surviving descendant in second, third, or lower generationto be his/her representative.

3. Only the highest generation member of a family strain may take.4. A descendant who predeceases the decedent cannot be represented by his/her spouse; only children and grandchildren can do that.

ii. 3 Methods1. Strict Per Stirpesdistributes based on bloodlines rather than on the basis of

generational equality. Thus, all persons receiving through their parent or grandparent equally split the portion to which that person was entitled.

a. Procedure:i. Divide the property into as many equal shares as there are:

1. living children of the decedent, if any, and2. Deceased children of the decedent, who leave descendants

then living, i.e. are represented.ii. Divide at every generation, even if everyone in that generation isdead and is merely represented.

iii. Distribute one share to each living member of that generation.1. With respect to those bloodlines where a distribution is

made, children and grandchildren of that child are cut off since the oldest member of the bloodline already receivedthe bloodlines share.

2. Modern Per Stirpesthis rule will reach identical results if there is at least onechild or grandchild or great-grandchild alive at the time of Ds death at eachgeneration. However, where all members of a generation in a given bloodline aredeceased at the time of distribution, than that generation should be skipped.

a. Procedure:i. Number of shares: divide property into as many equal shares as

there are:1. Living members of the nearest generation of descendants

then living; and2. deceased members of that generation who leave descendants

then living. b. Distribution: distribute one share to each living member of that generation

per capita.


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3. Per Capita at Each Generationthis approach determines that number of shares ateach generation. Each generation gets exactly the same as other persons within thatgeneration.

a. Procedure:i. Number of Shares: divide property into as many equal shares as

there are:

1. living members of the nearest generation of descendantsthen living; and2. Deceased members of that generation who leave descendants

then living.ii. This determines the number of bloodlines. Each bloodline will get

an equal amount, no matter how many grandchildren or great-grandchildren there are in a given bloodline.

b. Distribution: Distribute one share to each living member of that generation per capita.

c. Excess: combine the remaining excess into a pot and divide the pot amongstthe living descendants of the next generation in the same manner.

f. Rearranging the EstateMADGALSi. Murder UPC 2-803Effect of Homicide on Intestate Succession1. An intestate heir who feloniously and intentionally kills the decedent forfeits all

benefits to the decedents intestate estate. The killer is treated as if he/she haddisclaimed their share of the intestate estate.

a. The determination of intentional can be made in a civil probate trialregardless of what transpired in the criminal case.

b. A conviction in a criminal proceeding of intentional and felony murder of the decedent, conclusively establishes the person as the killer for the

purposes of the civil proceeding.c. Whether or not a person is a slayer may be determined in a civil proceeding

under the preponderance of the evidence standard rather than beyond areasonable doubt.2. the felonious and intentional killing of the decedent:

a. revokes any revocable disposition or appointment of property made by thedecedent to the killer in a governing instrument;

b. renders the killer incapable to serve in any appointed fiduciary or representative capacity, including as trustee, representative, executor, or agent;

c. severs the interests of the decedent and killer in property held by them at thetime of the killing as joint tenants with the right of survivorship into equaltenancies in common.

ii. Agreement between the parties parties may agree to a distributional scheme differentthan that under the intestate laws. UPC 3-912 provides that

1. Competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or the laws of intestacy, in any way that they provide in a written contract executed by all who areaffected by its provisions. The PR shall abide by the terms of the agreement andadminister the estate subject to the rights of creditors, taxing authorities, costs of administration, etc

iii. Disclaimer analysisa. Distribute per representation statute


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b. Kill disclaimant open the gatec. Distribute to lineal descendants per representation statute

2. disclaimers are primarily tax driven; they help avoid multiple estate or gift transfer tax consequences if property is conveyed one generation at a time. Also, they areuseful to allow heirs to avoid creditor-access to their share of decedents estate. Adisclaimer used to evade creditors is not treated as a fraudulent conveyance because

the disclaimant is considered dead and therefore his interest in the property never arises. However, a disclaimant may not avoid tax liens by disclaimer, and typicallydisclaimed assets are counted toward the eligibility requirements for Medicaid.

3. Two types of disclaimer a. UPC Disclaimercritical requirements

i. The disclaimer takes effect as of the time the instrument creating theinterest becomes irrevocable or at the time of the intestates death

ii. Must be in writing or other recordiii. Must declare the disclaimed interestiv. Must be signed by the disclaimantv. A disclaimer must be filed within 9 months of the decedents death

vi. The disclaimed interest must pass without direction of thedisclaimant, i.e. it must pass by operation of the intestacy laws or, if there is a will, by the terms of the will, and

vii. The disclaimant may not have received any benefits from propertydisclaimed nor received consideration in money or moneys worth,directly or indirectly, from anyone in exchange for the disclaimer.

b. IRS DisclaimerIRC 2518i. If a person makes a qualified disclaimer with respect to any interest

in property, the interest is treated as if the interest had never beentransferred to the disclaimant.

ii. Qualified disclaimer = an irrevocable and unqualified refusal by a

person to accept an interest in property only if 1. the refusal is in writing2. the writing is received by the transferor of the interest, his

legal representative, or the holder of the legal title to the property to which the interest relates not later than 9 monthsof either

a. the day on which the transfer is made; or b. the day on which such person attains age 21

3. the disclaimant has not accepted the interest or any of its benefits

4. as a result of the refusal, the interest passes without anydirection on the part of the disclaimant and passes either

a. to the spouse of the decedent, or b. to a person other than the disclaimant.

iv. Gift a gift is an absolute and unconditional transfer which need not be repaid and doesnot diminish the donees share of inheritance from the decedents estate. This is the defaultunless the contesting parties can prove otherwise.

1. Requirements to be a gift:a. Gift must be made with donative intent : this element does not consider the

donors motive for making the gift, but rather considers whether the donor


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intended to transfer an ownership interest gratuitously, as opposed toengaging in an exchange transaction or involuntary transfer.

b. Effective transfer: in order to make an effective transfer, the donor musti. Have the intent to make the transfer;

ii. Own the property being transferred;iii. Satisfy an applicable formalities for making the transfer (i.e. comply

with the statute of frauds when making a land gift)iv. *Property law principle: donor may not make a transfer of aninterest that is larger than the interest that the donor owns.

c. Transfer must lack consideration:d. Present transfer: the donor may not make a transfer of property that the

donor does not own or that does not exist.i. Doctrine of estoppel by deed: a purported transfer of land that the

transferor does not own becomes enforceable and takes placeautomatically if the land is later acquired, but only if the deedrepresents to the grantee that title of a specified quality is beingconveyed, which most warranty deeds do but most quitclaim deeds

do not.e. Acceptance by the donee is required and is presumed.f. The forgiveness of a debt is a gift of property if it is made without

consideration and with donative intent.v. Advancement a prepayment of some or all of the recipients share of the intestate estate.

UPC 2-109property that the decedent gave during the decedents lifetime to anindividual who, at the decedents death, is an heir is treated as an advancement only if

1. the decedent declared in a contemporaneous writing or the heir acknowledged in awriting that the gift is an advancement OR

2. the decedents contemporaneous writing or the heirs written acknowledgementotherwise indicates that the gift is to be taken into account in computing the

division and distribution of the decedents estate.3. If the recipient of the property fails to survive the decedent the property is not takeninto account in computing the division and distribution of the decedents intestateestate, unless the decedents contemporaneous writing provides otherwise.

4. Calculation of shares = hotchpot methoda. Step 1add the value of the advancements to the value of decedents

probate estate. b. Step 2discern the surviving spouses intestate share of the hotchpot

estate.c. Step3discern the descendants share of the hotchpot estate.d. Step 4decide the size of the advancements proportional to the size of that

heirs share of the intestate estate.e. Step 5if the size of an heirs advancement is larger than that heirs share

of the intestate estate, then that heir and their advancement is disregarded.vi. Loan a loan is an asset of the decedents estate. The unpaid principal and interest on the

loan will be set off against the borrowers intestate share. If the unpaid principal andinterest exceed the borrowers share of the intestate estate, the borrower will be required torepay the amount of the excess to the estate or to those who receive the debt as a portion of their share of the inheritance.


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1. If a debtor of the estate fails to survive the decedent, then the debt owed by thedecedent is not taken into account when computing the intestate share of thedebtors descendants.

vii. Simultaneous Death when a decedent dies intestate and the person who would claim anintestate share dies before him or within the 120 hours after decedents death, the intestateheir is treated as predeceasing decedent.

IV. Willsa. FormalitiesUPC 2-502i. Will must be

1. In writingany reasonably permanent record is sufficient, but a tape recorded willor a purported will that is recorded on any electro-magnetic medium is insufficient.Furthermore, the medium must be one that allows the markings to be detected.

2. Signed by the testatorthe UPC does not specify where in the document the Tmust sign, but best practice would dictate that the T sign at the foot of thedocument.

a. T should ordinarily sign before the witnesses since the signing by thewitnesses is the final act of authentication; if the T signs above the witnesss

signatures on the document then that raise the presumption that T signedfirst.i. Signature by mark or cross is sufficient; name need not be spelled

correctly, and need not be legible. The crucial requirement is that it be done with intent of adopting the document as the Ts will.

b. This requirement is also met if another person signs the will at thetestators direction and in the conscious presence of the testator . Theconscious presence test requires that the signing be done within the range of the testators senses such as hearing; the signing need not have occurred inthe testators line of sight.

3. Signed by at least two individuals, each of whom signed the writing within a

reasonable time after he or she witnessed either the signing of the will or thetestators acknowledgement of that signature or acknowledgement of the will.a. Under this requirement, the testator may sign the will outside the presence

of the witnesses if the testator later acknowledges to the witnesses that thesignature is his or hers or that the document is his or her will.

b. An acknowledgement need not be express, but may be inferred from thetestators conduct.

c. Conviction of a crime no longer renders a witness incompetentd. Mental Incompetency, whether from mental deficiency, extreme

intoxication, or the influence of drugs, remains a ground of disqualificationof a witness.

e. The witnesses may be beneficiaries under the will (interested witnesses)f. Since the witness must qualify at the of execution, hence a subsequent

change in status does not remedy the disqualification.ii. The UPC dispenses with the publication requirement; however, in states where publication

is required or if it would be prudent practice to conform with the requirement, therequirement may be met by making an explicit signification such as This is my will;however, the requirement may also be met by the testators conduct, such as silence or acquiescence at someone elses suggestion that the document is the testators will.Furthermore, the publication requirement, when necessary, does not require that the T


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inform the witnesses of the contents of the will, but only that the document they are signingis the Ts will.

b. Additional non-UPC formalities that may be present in other statesi. Will must be signed by the testator at the foot or end of the document(Restatement)

Testators signature at the end of the document unquestionably satisfies the signaturerequirement, and the Ts handwritten name in freestanding form at any other place on the

document raises an inference that T signed the document.ii. Two or more competent, credible, or disinterested persons mustiii. Witness

1. Ts signature or 2. Ts acknowledgement of

a. Ts signature or b. Of the will itself

3. Who may be a witness? UPC 2-505an individual generally competent to be awitness may act as a witness to a will.

a. The signing of a will by an interested witness does not invalidate the will or any provision of the will.

iv. Witnesses sign1. in Ts presenceconscious presence/line of sight?2. in the presence of one anotherconscious presence/line of sight?3. within a reasonable time after witnessing the signing or acknowledgementwhat is

a reasonable time after witnessing T sign or acknowledge the will?

c. Self-proving willsa self-proved will is a will for which the T and the witnesses have executed anaffidavit before a notary public or similar officer detailing the procedures followed in the executionof Ts will.

i. The effect of a self-proved will under the UPC is that where a will is self-proved, aconclusive presumption arises as to compliance with the signature requirements and a

rebuttable presumption arises that all other requirements have been met (UPC 2-506).1. The presumption is not conclusive if there is evidence that the signature was subjectto fraud or forgery.

ii. Contrast this with the attestation clause the effect of the attestation clause without a self- proving affidavit is that where a will is not self-proved with an attestation clause, thetestimony of at least one of the attesting witnesses is required in the case of a will contest.

d. Formalitiesi. Ceremony should take place in a room free from distractions and should not be interrupted

ii. Participants should include only the attorney, testator, witnesses and Notary Publiciii. No family members should be present to avoid the presence of undue influenceiv. All parties should be introduced to one another; no jokes or humorous statements should be

made during the ceremonyv. The Notary Public should administer an oath; Ts intent should be established by asking

him questions demonstrating that the T understands the transaction, comprehends generallythe nature and extent of the property to be disposed of, remembers who are the naturalobjects of his bounty and understands the nature and effect of the desired disposition;answers should be clear and audible

vi. T should sign or initial the margin of each page leading to the signature page, read aloudthe testamonium clause, then fill in the date and sign his name at the end of the will

vii. The Notary Public should administer the oath to the witnesses;


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viii. The first witness should read aloud the attestation clause and write under the clause thatthe foregoing attestation clause has been read by us and is accurate and then place hisinitials immediately below this line

ix. Announce the end of the executionx. Confirm testamentary intent by asking the T if he has any second thoughts or regrets about

signing the will

xi. T should be instructed as to the safekeeping of the wille. Additional steps if contest is expectedi. T should be tested for mental capacity or a professional psychiatric evaluation should be

obtained as evidence of the Ts level of competenceii. Videotape the ceremony; consider using a professional

iii. Number of witnesses should be increased, and witnesses should be carefully chosen1. older witnesses may be more credible2. younger witnesses may have a better ability to recall and are more likely to be alive

at the time of contestiv. the attorney should ask additional questions of the T, including details of his immediate

family, business or profession and the extent of property owned

v. the T and witnesses should execute a self-proving affidavitvi. prior wills that demonstrate a consistent desired plan of distribution should be saved, andinconsistent prior wills should be destroyed

f. Legal Requirements of Attested Willsi. Requirement of Mental Capacity

1. To have testamentary capacity, a person must be of sound mind and at least 18years old.

2. the test here can be remembered as POPI; was T able to know or hold enoughinformation in her mind about

a. the Property she owns and wishes to give away b. who the objects of her bounty are

i. the natural objects of a Ts bounty include the Ts closest familymembers, who are not limited to blood relativesii. for example, a Ts children would be considered their bounty

iii. however, the T need not know the identity or location of remoterelatives who are beyond her immediate family circle

iv. a Ts bounty would include non-wed and non-traditional partnersv. a will that favors persons who are not close family members or a

will that favors family members disproportionately to their relationship to the T is not evidence that the T did not know andunderstand that natural objects of his bounty

c. the fact that she is engaged in a plan to dispose of her property on her deathd. the interrelationship of the previous three

3. A person who is mentally incapacitated part of the time but has lucid intervalsduring which he or she meets the standard for mental capacity can make a validwill.

a. Look to whether the T satisfied the requirements for mental capacity at thetime they executed the will

4. Insane delusion: an insane delusion is a belief that is so against the evidence andreason that it must be the product of derangement


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a. A belief resulting from a process of reasoning from existing facts is not aninsane delusion, even though the reasoning is imperfect or the conclusion isillogical

b. Mere eccentricity does not constitute an insane delusionc. An insane delusion is a belief to which the donor adheres against all

evidence and reason

d. It is not sufficient to establish that the testator was the victim of an insanedelusion, but the evidence must go further and establish that the will itself was the product of that delusion, and that the testator devised his property ina way which, except for that delusion, he would not have done.

ii. Testamentary intent: the decedent must intend the document to be a will or to becomeoperative at the decedents death.

1. A clear, unambiguous expression of testamentary intent in the document raises astrong presumption that the document was executed was executed withtestamentary intent. The presumption is rebuttable by clear and convincingevidence.

a. Look to whether the testator attended normal social events, engaged in

normal conversations, visited or talked with family members by telephone,etc2. Testamentary intent can be established by extrinsic evidence or inferred from the

document3. look to

a. language of the willi. a clear, unambiguous statement of intent in the document raises a

strong presumption that the document was executed with therequisite intent that may only be rebutted by clear and convincingevidence

b. whether the will was properly executed

c. notary and witness testimony of knowledge of what the T was signingiii. If a donor is induced to make a donative transfer that the donor would not have otherwisemade by undue influence, then the transfer may be set aside.

1. Undue influence requires the contestant to provea. The existence and exertion of an influence

b. The effective operation of that influence so as to subvert or overpower thetestators mind at the time of the execution of the testament

c. The execution of a testament which the maker would not have executed butfor such influence

2. Influence is not undue unless the free agency of the testator was destroyed and thewill produced expresses the wishes of the one exerting the influence.

a. Unless the importunities or entreaties are shown to be so excessive as tosubvert the will of the maker, they will not taint the validity of theinstrument with undue influence.

3. Factors to consider a. The nature and type of relationship existing between the testator, the

contestants and the party accused of exerting such influence b. The opportunities existing for the exertion of the type of influence or

deception possessed or employedc. The circumstances surrounding the drafting and execution of the testament


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d. Whether there has been an habitual subjection of the testator to the controlof another

e. The state of the testators mind at the time of the execution of the testamentf. The testators mental or physical incapacity to resist or the susceptibility of

the testators mind to the type and extent of the influence exertedg. Words and acts of the testator

h. Weakness of mind and body of the testator , whether produced byinfirmities of age or by disease or otherwisei. Whether the testament executed is unnatural in its terms of disposition of

propertyiv. Duress : if the donor is induced to make the transfer by the threat of

1. improper action by the donee or someone else and the2. Donor otherwise would not have made the transfer.

v. Fraud : a donor is induced to make a donative transfer as a result of fraud if fraudulentrepresentations cause the donor not to make a donative transfer that the donor wouldotherwise have made and instead makes the donative transfer to someone else. Such afraudulent representation may consist of a falsehood about the moral character of a person

to whom the donor contemplates making a donative transfer, as a consequence of which thedonative transfer is made to the person making the fraudulent representation.vi. Mistake : a mistake may cause a donative transfer to be made that otherwise would not

have been made.1. Mistake may be subject to reformation

vii. Formal Testacy Proceedings ; Burdens: UPC-3-4071. Petitioners who seek to establish intestacy have the burden of showing death,

venue, and heirship.2. Proponents must show due execution3. contestants must show lack of intent, capacity, undue influence, fraud, duress,

mistake, or revocation

4. parties have ultimate burden of persuasion as to their issues, but petitioners have theultimate burden of proof g. Holographic (Unattested) Willsthese wills allows the T to dispense with attestation entirely

i. A holographic will is one that1. contains the material portions (the who and the what) in the Ts own handwriting

a. thus, immaterial parts of the will, such as the date or introductory wordingare printed, typed, or stamped;

i. This is the more modern alternative to the first generation statutesthat mandated that to be valid as a holographic will, the entire willneeded to be in Ts handwriting.

b. under the surplusage theory, the portions of the document in the Tshandwriting are given effect as a holographic will if they make sense as awill standing alone, without regard to the portions of the document not inthe Ts handwriting

2. the signature must be in the Ts own handwriting3. the T executed the will with testamentary intent

ii. 1 st Generation Statute: a holographic will is one that is entirely written, dated, and signed inTs handwriting.

iii. 2 nd Generation statute: holographic will is one if the signature and the material provisionsare in Ts handwriting. (basically, gift language had to be in Ts handwriting)

h. Components of the Will


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i. Integrationwhat was in existence and present at the will ceremony?1. To be treated as part of a will, a page or other writing must be present (in existence)

when the will is executed and must be intended to be part of the will.a. Usually pages of a will are stapled or otherwise fastened; no physical

connection is required; physical connection does support an inference thatthe physically connected pages or other writings were present at the time of

execution and that they were intended to be part of the will. b. Internal coherence of the pages or writings raises an inference that the pagesor other writings were present at the time of execution and that they wereintended to be part of the will.

i. Internal coherence is present if the pages or other writing appear to be part of single document; look for continuing sentences,sequential numbering, same color and weight of paper.

ii. Incorporation by Referencethree requirements for IBR *only writings can beincorporated by reference

1. writing to be incorporated must be existence when the will is executeda. thus, the writing must exist, but need not be present when the will

2. the will must manifest an intent to incorporate the writinga. any manifestation of intent is sufficient, such as I incorporate [writing] byreference

3. the writing to be incorporated must be identified with reasonable certaintya. the will must contain a description that is sufficient to identify the writing

and there must be an existing writing that reasonably corresponds to thedescription

b. *a holographic will can incorporate a writing not in the Ts handwritingiii. Acts or Events of Independent Significancea will may dispose of property by reference

to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after

the Ts death. The execution or revocation of another individuals will is such an event.1. Look for a formula that determines who gets what independently of any post-execution intervention by the T for the purpose of changing who gets what.

iv. Pour-over trust2-511a pour-over trust1. is a provision in a will that adds property to an inter vivos trust or 2. funds a trust that was not funded during the testators lifetime but whose terms are

in a trust instrument that was executed during the testators lifetime3. A testamentary addition to a trust is valid even if the trust is amendable or

revocable, or even if the trust was amended after the execution of the will.v. Memo at Death2-513

1. whether or not the provisions relating to holographic wills apply,2. a testator may refer in his or her will to a separate document disposing of tangible

personal property other than money3. if the property is not otherwise specifically disposed of by will4. the writing must be signed by the testator and must describe the items and the

devisees with reasonable certaintyvi. Republication by Codicil

1. a will is treated as if it were executed when its most recent codicil was executed,whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testators intent(executing a codicil


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is usually thought to have the effect of re-executing the will that it amends or supplements).

i. Reducing the Likelihood of LitigationNo contest clausesi. UPC2-517Penalty Clause for Contest

1. a provision in a will purporting to penalize an interested person for contesting thewill or instituting other proceedings relating to the estate is unenforceable if

probable cause exists for instituting the proceedings.ii. This provision only relates to proceedings that challenge the validity of the donativedocument; thus, proceedings to interpret an ambiguous document do not fall within thegovernance zone of no-contest clauses.

iii. Probable cause exists when, at the time of instituting there was evidence that would lead areasonable person, properly informed and advised, to conclude that there was a substantiallikelihood that the challenge would be successful.

1. one factor that bears on probable cause is whether the beneficiary relied on theadvice of independent legal counsel sought in good faith after full disclosure of allthe facts

iv. no contest clauses should be construed to have been violated regardless of whether the

action is subsequently withdrawn immediately after its institution, prior to a hearing, at thetrial, or any time thereafter v. a restraint otherwise valid under the rule stated in this section is violated by voluntary

conduct of the beneficiary that amounts to an indirect challenge1. look to whether

a. beneficiary aids or instigates another person in that persons challengeattempt to contest the will

b. an agreement giving part of the beneficiarys devise in exchange for the willchallenge

V. Revoking the donative documenta. Revocation by subsequent instrumentin order for revocation by subsequent will to be effective,

the subsequent will itself must be valid; if there is a defect in execution, the defect may be excusedas harmless error; the term will includes a codicil, and a holographic will may revoke a formal,attested will.

i. A will or any part of a will may be revoked by executing a subsequent will that revokes the previous will or part expressly or

ii. By inconsistency1. if the subsequent will is inconsistent as to a portion of the Ts property, then it is

rebuttably presumed the earlier will remains in force as to everything else and thenew document/will is effective as to the stated property; in essence then, both willsare effectively read together

a.2. if the later will is WHOLLY inconsistent, such as by disposing of all of the Ts

property, then it is rebuttably presumed the prior will is revoked in its entirety andis replaced by the newer will

b. Revocation by Acti. A will or any part thereof is revoked

1. by performing a revocatory act on the will if a. the T performed the revocatory act with the intent to revoke or

i. an examination of Ts intent may involve an examination of extrinsic evidence


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b. if another performed the revocatory act on the will by the Ts direction andin the conscious presence of the T (T must still have intent)

2. Revocatory act on the will includes burning, tearing, cancelling, obliterating, or destroying the will or any part of it.

a. Duplicate willsif the testator executed more than one copy of the samewill, each duplicate is considered the Ts will, and a revocatory act on one

copy revokes all copies. T need not perform a revocatory act on allduplicates.i. Performing the act on another document or on an unexecuted copy

of the will is insufficient. b. Sufficiency of the actan insignificant act, such as a small tear or burn, is

sufficient as long as the evidence establishes that the T performed the actwith the intent to revoke.

3. Estate of Strong: where a last will and testament, after its execution, is retained bythe T and cannot be found upon his death, it is the well-settled rule that it will be

presumed to have been destroyed and thus revoked. This presumption is subject torebuttal by circumstances tending to show a contrary conclusion, and that the

burden is on the party seeking to have the will probated to prove that the will wasunrevoked at the Ts death.a. Factors to consider in rebuttal of the presumption

i. Evidence as to statements from the T that he did not intend torevoke the will

ii. Evidence that he entertained a kind and loving attitude toward the proposed beneficiary of the will up to the time of death

iii. Evidence of other individuals access to the will1. where there is evidence that others had access to the will, the

presumption is less strong.4. the revocatory act need not touch the any of the words on the will

ii. if a subsequent will does not expressly revoke a previous will, the execution of thesubsequent will wholly revokes the previous will by inconsistency if the T intended thesubsequent will to replace rather than supplement the previous will

iii. the T is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the Ts estate; if this presumption arises and is not rebutted by clear and convincing evidence, the previous willis revoked; only the subsequent will is operative

iv. T is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the Ts estate.If this presumption arises and is not rebutted by clear and convincing evidence, thesubsequent will revokes the previous will only to the extent the subsequent will isinconsistent with the previous will; each will is fully operative on the Ts death to theextent they are not inconsistent.

c. Revocation by Operation of Lawi. 2-508 does not provide for revocation by a change in circumstances except in two

situations1. homicidekiller forfeits all benefits and is deemed to disclaim his interest


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a. Intentional and felonious killing revokes and revocable disposition of property, conference of nongeneral or general power of appointment, or nomination of the killer to serve in any representative or fiduciary capacity.

2. Divorcethe ex-spouse and all her/his family members are deemed to disclaim and predecease.

a. Divorce or annulment revokes any revocable disposition of property,

provision in a governing instrument conferring a general power of appointment on the spouse or the relative, and nomination in a governinginstrument to serve in any representative capacity.

b. These provisions are revived if the former spouse and T remarry.c. *T may provide for ex-spouse and relatives in will regardless of divorce and

avoid the effect of 2-804.d. Furthermore, any revocable provision in favor of a former spouse or relative

of the former spouse in a will substitute is revoked upon dissolution of marriage.

e. Divorce severs the interests of the former spouses in property held by themat the time of the divorce or annulment as joint tenants with the right of

survivorship, transforming the interests into equal tenancies in commonf. Eggelhoff : for ERISA benefits to be revoked on divorce, T must change the beneficiary designation because UPC 2-804 is preempted by the ERISAstatute; 401(k) plans are the same, IRAs are not.

VI. Revival of revoked wills2-509a. If a subsequent will (#2) that wholly revoked a previous will (#1) is thereafter revoked by a

revocatory act, the previous will remains revoked unless it is revived.i. The previous will is revived if it is evident from the circumstances of the revocation of the

subsequent will or from the Ts contemporary or subsequent declarations that the Tintended the previous will to take effect as executed.

ii. Comment: if will #2 wholly revoked will #1, the revocation of will #2 does not revive will

#1 unless it is evident from the circumstances of the revocation of will #2 or from the Tscontemporary or subsequent declarations that the T intended will #1 to take effect asexecuted.

b. If a subsequent will that partly revoked a previous will is thereafter revoked by revocatory act, arevoked part of the previous will is revived unless it is evident from the circumstances of therevocation that of the subsequent will or from the Ts contemporary or subsequent declarations thatthe T did not intend the revoked part to take effect as executed.

i. Where T revokes will #1 by executing will #2 and subsequently revokes #2 by executingwill #3, will #1 remains revoked except to the extent that Will #3 shows an intent to havewill #1 effective.

c. A will that was revoked by a later will is revived if the Ti. Re-executed the previously revoked will

ii. Executed a codicil indicating an intent to revive the previously revoked williii. Revoked the revoking will by act intending to revive the previously revoked williv. Revoked the revoking will by another, later will whose terms indicate an intent to revive

the previously revoked willd. A will that was revoked by act is revived if the T

i. Re-executed the willii. Executed a codicil indicating an intent to revive the previously revoked will, or

iii. Performed an act on the will that clearly and convincingly demonstrates an intent to reversethe revocation


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e. A testamentary provision that was revoked by dissolution of the Ts marriage is revived if i. The T remarried the former spouse

ii. Re-executed the will, or iii. Executed a codicil indicating an intent to revive the previously revoked provision, or iv. The dissolution of the marriage is nullified.

VII. DRR/Ineffective Revocation

a. DRR treats a revocation as presumptively ineffective in specified circumstances. Suchcircumstances may includei. Revocation is presumptively ineffective if a T revokes a later will by revocatory act in a

failed effort to revive an earlier willii. A revocation is presumptively ineffective if a T revokes his first will by revocatory act in a

failed attempt to replace the first will with a replacement will1. but, maybe T executed enough of the replacement will that the replacement will

could survive under the harmless error rule2. also, in order for the doctrine to apply here, there must be enough evidence of the

Ts dispositive objective must be provableiii. partial revocation coupled with an attempt to insert unattested languageDRR is

applicable here and the revocation is presumptively ineffective because the T revoked in anattempt to achieve a plan that fails under applicable law1. the presumption is rebutted if allowing it to remain in effect would be more

consistent with the Ts probable intentiona. if the person who would take the revoked devise if the revocation is

rendered ineffective is the T would probably want the revocation to remainin effect; the T might also prefer the revocation to remain in effect if the

persons who would take the revoked devise are closely related to theintended devisee

b. T would also want the revocation to remain in effect if the Ts relationshipwith the original devisee had deteriorated, so that his or her dominant

motive was to deprive the original devisee of the propertyc. The easiest case for the application of the doctrine of DRR is one in whichthe T attempted to increase the original amount; in this case, T would

probably want the revocation to be ineffective because rather than revokethe original devise, the T was adding to it

d. Where T attempted to decrease, a reduction of more than 50% would tend torebut the presumption and allow the revocation to remain in effect; areduction of less than 50%, the presumption is likely not rebutted

e. DRR may be applied when a later will that expressly revoked an earlier willcontains one or more dispositive provisions that fail under applicable law;the revocation of the earlier will is presumptively ineffective to the extentnecessary to give effect to the dispositive provision in the earlier will thatthe failed dispositive provision in the later will replaced

f. A revocation is presumptively ineffective if a T revokes a will mistakenlythinking that the pattern of distribution under intestacy carriers out his or her intention


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INTERPRETING THE WILLthe words in the will have great significance; now what do the words mean?I. Interpretive Hierarchya. If the will is clear, then there is no need to interpret the will any further; the next step is applying

its provisions b. If the will is not clear, then the first thing to look to is the Ts intent; for this inquiry, almost any

evidence is allowed provided that it is admissible with the applicable rules of evidencec. Statutory rules of construction2-600s

i. 2-601the rules of construction apply unless a contrary intention of the T can be foundii. 2-603a devise to a devisee who is included in the bloodline of the Ds grandparents

1. If a devisee fails to survive the T and is a grandparent, a descendant of agrandparent, or a stepchild of either the T or the donor of a power of appointment

exercised by the Ts will, the following applya. If the devise is not in the form of a class gift and the deceased deviseeleaves surviving descendants, a substitute gift is created in the deviseessurviving descendants and the surviving descendants take by representation

b. If the devise is in the form of a class gift other than a devise to multi-generational family groups like heirs, kin, issue, relatives, or family, a substitute gift is created in the surviving descendants of anydeceased devisee. The property to which the devisees would have beenentitled had all of them survived the T passes to the surviving devisees andthe surviving descendants of the deceased devisees.

2. In order for lapse protection to apply, the gift must be made to the Ts grandparents,

descendants of the Ts grandparents, or the Ts stepchildren.a. Stepchildren: note the definition of stepchildren under 2-603 includeschildren of the Ds former spouse; however, anti-lapse protection does notapply to a deceased stepchilds devise if that devise was revoked by section2-804.

3. The substitute gifts provided for are to the deceased devisees descendants.4. 2-603 is limited to wills, and does not apply to will substitutes such as life

insurance policies, retirement plans, or TOD accounts.5. 2-603 adopts the position that mere words of survivorship do not by themselves in

the absence of additional evidence establish a contrary intention necessary to defeatanti-lapse protection.

a. Thus, where the will provides to A if A survives me, anti-lapse protectionwill apply to create a substitute gift in As descendants provided that A is a

protected devisee and left descendants b. Where the will provides to the survivor of A or B, anti-lapse protection

probably still applies6. 2-603 provides that a substitute gift under the anti-lapse statute is superseded if the

Ts will expressly provides for its own alternative devisee and if that alternativedevisee is entitled to take under the will

iii. 2-604a general or specific devise that fails for any reason becomes part of the residueexcept as provided in the anti-lapse statute


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1. A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to

pay debts.vii. 2-609Ademption by Satisfaction

1. Property that a T gave in his lifetime to a person is treated as a satisfaction of adevise in whole or in part, only if

a. The will provides for deduction of the gift b. The T declared in a contemporaneous writing that the gift is in satisfactionof the devise or that its value is to be deducted from the value of the devise,or

c. The devisee acknowledged in writing that the gift is in satisfaction of thedevise or that its value is to be deducted from the value of the devise

d. Constructional preferences/general theories of lawi. Construction that is more in accord with the donors general dispositive plan than other

plausible constructionsii. Construction that renders the document more effective than other plausible constructions,

including the construction that favors completeness of disposition and the one that avoids

illegalityiii. Construction that favors family members over non-family members, and that favors closer family members over more distant family members, and the construction that does notdisinherit a line of descent

iv. Construction that gives more favorable tax consequencesv. Construction that accords with Ts contractual obligations

vi. Construction more in accord with public policy than otherse. Finally, if the devise fails for any reason, then the devise goes to the residuary or passes under

intestacy, depending on whether the devise is general or specific (goes to residuary) or a residuarydevise (goes to intestacy)

II. Mistake

a. A donative document, though unambiguous, may be reformed to conform to the text to the donorsintention if it is established by clear and convincing evidence that a mistake of fact or law affectedspecific terms of the document and what the donors actual intention was.

III. Abatement of Devisesa. 3-902shares of distributees abate in the following order

i. Property passing by intestate successionii. Residuary gifts

iii. General devisesiv. Specific devisesv. 6-102to the extent the estate is insufficient to pay the debts of the decedent, a transferee

of a non-probate transfer is subject to claims against the decedents probate estate. b. Tax apportionmentin effect, each transfer is reduced by its fair share of the tax rather than being

subsidized by lower ranking gifts. State and federal governments include many non-probatetransfers in a testators taxable estate, especially life insurance proceeds and recipients under

powers of appointmentIV. Classification of Devises

a. Specific devise = a devise of a specific piece or pieces of property that are owned by the T whenthey are devised; look for a devise of my [property]

b. General devise = a devise of property that comes out of the estate, and any pecuniary devisec. Residuary devise = a devise of the residue


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Statutory Protections for a Surviving Spouse and Pre-termitted Heirs

I. Elective Share for a surviving spousea. 2-202the surviving spouse has a right of election equal to the value of the elective share

percentage of the augmented estate, determined by the length of time the spouse and the D weremarried to each other, according to the following

i. Less than one year = supplemental amount onlyii. 1 year = 3%, and increasing by 3% every year until year 10; and year 10 (30%), theintervals begin to go up by 4% per year, and continue to go until year 15 (50%)

b. 2-203composition of augmented estatei. The value of the augmented estate consists of the sum of the values of all property that

constitute the Ds net probate estate, the Ds nonprobate transfers to others, the Dsnonprobate transfers to the SS, and the surviving spouses property and nonprobatetransfers to others.

c. 2-204Ds net probate estatei. The value of the augmented estate includes the value of the Ds probate estate reduced by

funeral and administration expenses, homestead, family, and exempt property allowances,

and enforceable claimsd. 2-205Ds nonprobate transfers to othersi. The value of the augmented estate includes the value of the Ds nonprobate transfers to

others of any of the following types1. property owned in substance by the D immediately before death that passed outside

the probate estate, includinga. property over which the D alone, immediately before death, held a presently

exercisable general power of appointmenti. (a presently exercisable power of appointment is a means of power

to create a present or future interest in himself, creditors, estate, or creditors of his estate, and includes the power to revoke or invade

the principal of a trust or other property arrangement) b. Ds fractional interest in property held by the D in joint tenancy with theright of survivorship

c. The Ds ownership in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship

d. Proceeds of insurance if the D owned the insurance policy and to the extentthe D alone and immediately before death held a presently exercisablegeneral power of appointment over the policy or its proceeds

2. Property transferred in any of the following forms during marriagea. Any irrevocable transfer in which the D retained a right to the possession,

enjoyment, or the income from the property if and to the extent the Ds rightterminated at or continued beyond death

b. Any transfer in which the D created a power over income or property,exercisable by the D alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of D, Ds estate, or creditors of Ds estate

3. property that passed during marriage and during the two year period next precedingthe Ds death as a result of a transfer by the D if the transfer was of any of the types

a. any property that passed as a result of the termination of a right or interestin, or power over, property that would have been included in the augmentedestate if the right, interest, or power had not terminated until the Ds death


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b. any transfer of or relating to an insurance policy on the life of the D if the proceeds would have been included in the augmented estate had the transfer not occurred

c. any transfer of property, to the extent otherwise not included in theaugmented estate, made to or for the benefit of a person other than the Dssurviving spouse. The amount included is the value of the transferred

property to the extent the aggregate transfers to any one donee in either theof the two years exceeded $10,000e. 2-206Ds nonprobate transfers to the surviving spouse

i. The value of the augmented estate includes the value of the Ds nonprobate to the Dssurviving spouse, which consist of all property that passed outside probate at the Ds deathfrom the D to the surviving spouse by reason of the Ds death, including

1. Ds interest in property held in joint tenancy with the right of survivorship to theextent the interest passed to the SS at Ds death

2. the Ds ownership interest in property or accounts held in co-ownership registrationwith the right of survivorship to the extent that Ds interest passed to the SS at Dsdeath

3. all other property that would have been included in the augmented estate had it passed to or for he benefit of a person other than the Ds spouse, surviving spouse,the D, or the Ds creditors, estate, or estate creditors.

f. Surviving Spouses property and nonprobate transfers to othersi. The value of the augmented estate includes the value of

1. property that was owned by the Ds SS at the Ds death, includinga. the SSs fractional interest in property held in joint tenancy with the right of

survivorship

b. the SSs ownership interest in property or accounts held in co-ownershipregistration with the right of survivorship

c. property that passed to the SS be reason of the Ds death2. property that would have been included in the SSs nonprobate transfers to othersg. 2-209sources from which elective share is payable

i. In a proceeding for an elective share, the following are applied first to satisfy the electiveshare amount and to reduce or eliminate any contributions due from the Ds probate estateand recipients of the Ds nonprobate transfers to others

1. amounts included in the augmented estate which pass or have passed to thesurviving spouse by testate or intestate succession and amounts included in theaugmented estate and

2. Amounts included in 2-207 up to the applicable percentage thereof. The applicable percentage thereof is twice the elective share percentage set forth in the schedule insection 2-202(a) appropriate to the length of time the spouse and D were married toeach other

h. Calculation Procedurei. Determine the elective share percentage under 2-202(a)

ii. Determine the amount of the augmented estate under 2-2031. net probate estate [plus]2. decedents nonprobate transfers to others (reclaimable transfers) [plus]3. Ds nonprobate transfers to surviving spouse [plus]4. surviving spouses property and nonprobate transfers to others (reclaimable

transfers)


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5. = Ds augmented estateiii. Determine elective share amount under 2-202(a)iv. Determine sources of payment for elective share amount

1. 2-209 elective share amount [minus]a. Property passing to spouse under the will or by intestacy [minus]

b. Property passing to spouse via nonprobate transfers [minus]

c. Spouses property and reclaimable transfers x 2d. = liability of Ds estate and recipients of reclaimable transfersII. Pretermitted Spousal share

a. 2-301if a Ts SS married the T after the T executed his will, the SS is entitled to receive, as anintestate share, no less than the value of the estate she would have received if the T had diedintestate as to that portion of the Ts estate, if any, that neither is devised to a child of the T whowas born before the T married the SS and who is not a child of the SS nor is devised to adescendant of such a child or passes under 2-603 or 2-604 to such a child or to a descendant of such a child, unless

i. It appears from the will or other evidence that the will was made in contemplation of theTs marriage to the SS

ii. The will expresses the intention that it is to be effective notwithstanding any subsequentmarriage, or iii. The T provided for the spouse by transfer outside the will and with the intent that the

transfer be in lieu of a testamentary provision is show by the Ts statements or isreasonably inferred from the amount of the transfer or other evidence.

b. In satisfying this provision, devises made by the will to SS are applied first, and other devises,other than a devise to a child of the T who was born before the T married the SS and who is not achild of the SS or a devise or substitute gift.

III. Pretermitted heir sharea. 2-302Omitted children

i. If a T fails to provide in his will for any of his children born after the execution of the will,

the omitted after-born or after adopted child receives a share in the estate as follows1. if the T had no children living when he executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which thechild would have received had the T died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other

parent survives the T (to satisfy this share, devises made by the will abate under 3-902)

2. if the T had one or more children living when he executed the will and the willdevised property or an interest in property to one or more of the then-livingchildren, an omitted or after born or after adopted child is entitled to share in theTs estate as follows

a. the portion of the Ts estate that the omitted child is entitled to share islimited to devises made to the Ts then-living children under the will

b. the omitted after-born or after-adopted child is entitled to receive the shareof the Ts estate, as limited in (a), that the child would have received hadthe T included all omitted after-born and after-adopted children with thechildren to whom devises were made under the will and had given an equalshare of the estate to the child

c. to the extent feasible, the interest granted and omitted after-born or after-adopted child must be of the same character, whether equitable or legal,


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present or future, as that devised to the Ts then-living children under thewill

d. in satisfying this above share, devises to the Ts children who were livingwhen the will was executed abate ratably.

ii. This does not apply if 1. it appears from the will that the omission was intentional, or

2. the T provided for the omitted child by a transfer outside the will and the intent thatthe transfer be in lieu of a testamentary provision is shown by the Ts statements or is reasonably inferred from the amount of the transfer or other devise

iii. if at the time of execution of the will the T fails to provide for a living child solely becausehe believes the child to be dead, the child is entitled to share in the estate as if the childwere an omitted after-born child

Ethical Matters and Avoiding MalpracticeI. Confidentiality of communications

a. Generally, in a joint representation, all communications between joint clients and the attorney areconfidential as to the outside world but not confidential as between joint clients

b. Where a joint client expresses information to the lawyer that the client wishes to keep from theother joint client embroils the lawyer in a dilemma, in which there are three different optionsi. Taking no action because the communication is to trivial matters that are not substantial to

representation of the other clientii. Encouraging the communicating joint client to provide the information to the other client

or to allow the lawyer to do soiii. Withdrawing from the representation

II. Conflict of Interestgenerally, given the non-adversarial nature of an estate and trusts practice, inappropriate cases the representation of multiple clients should be positively encouraged; however, alawyer is almost always precluded from representing both parties to a pre-nuptial agreement or other matter with respect to which their interests directly conflict to a substantial degree, except in the rare

case where it otherwise appears appropriate for the lawyer to do soIII. Representing a disabled clientthe lawyer for a client who appears to be disabled may have impliedauthority to make disclosures and take actions that the lawyer reasonably believes are in accordancewith the clients wishes that were clearly stated during his or her competency; it is not improper for alawyer to take actions on behalf of an apparently disabled client that the lawyer reasonably believes arein the best interests of the client

Planning for IncapacityI. Medical durable power of attorney

a. MDPOA is a document in which one gives to another the power to make decisions on her behalf regarding medical care if she is unable to make those decisions herself

i. The difference between a MDPOA and a living will is that a living will instructs your doctor to stop artificial life support if you should suffer from a terminal illness, whereas aMDPOA allows the agent to make many more health care decisions, including a wish toend life support.

b. Preparing an MDPOAi. Agent must be

1. at least 18 years old2. mentally competent3. willing to serve as agent


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II. Living willsa living will is a document that expresses your wish to have useless treatment stopped or to be disconnected from artificial life support; a living will is honored only if the testator is terminallyilla. Limitations

i. Does not go into effect until two doctors state in writing that you are terminally illii. The living will does not keep you from being fed if you are able to swallow food or fluids

iii. Some conditions such as an irreversible coma may not be considered a terminablecondition b. Preparing a living will

i. Must sign before two witnesses1. may not be fellow patients or employees of the facility where you receive health

care, doctor, any of doctors employees, creditors, or anyone who will inherit property or money from testators death

ii. may be cancelled by1. destroying all copies or revocation through signed statement

III. Medicaid overviewa. To qualify

i. Must be 65 or older, unless you are receiving social security disability and you meet theSSI definitionii. Need long term care

iii. Have monthly income of no greater than $1,6921. social security income, pensions, interest, veterans benefits, annuity payments,

dividends and Medicare B premium are considered incomeiv. have assets of no more than $2,000

1. Medicaid exempt resourcesa. $2,000 cash

b. Home, including property where home is locatedc. Property that you co-own if the property is the co-owners principal place of

residenced. Property that can not be sold for 2/3 of the actual valuee. Household goods and personal effects up to $2,000 worthf. One wedding and one engagement ringg. Prosthetic devices, wheelchairs, etch. One vehicle valued at no more than $4,500i. Burial space

j. Life insurance with a face value of $1,500 or less b. Medicaid disqualifying trusts under COBRAfor purposes of determining whether an individual

is eligible for Medicaid, his available assets will include the maximum amount of property held by any inter vivos trust established by him or his spouse that may be distributed to him at thediscretion of the trustee.

trusts and estates outline use this one

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