WILLS SECTION

I. Intestacy A. When someone dies without a will 1. The issue is what happens to their possessions 2. Heirs a. Receive possessions of the decedent b. Living people do not have heirs c. Determined by statutes, living survivors of the decedent 1) Parents and collateral 3. Issue a. Children of the decedent 4. Descendants a. Anyone in the bloodline, children, grandchildren, etc 5. Spouses and children are usually given preference a. Spouses worked to help acquire the assets b. Minor & Adult children are treated the same B. Statutes are Default Rules 1. Attempts to determine what the decedent would want a. Assumption that the spouse would be provided for 2. Some cut off the distribution of property to a certain extent 3. Half-Blood vs. Whole Blood a. Some statutes treat half blooded relatives the same as whole blooded relatives b. Sometimes they are treated differently 4. Some statutes treat children in utero as if they were born during the decedent’s lifetime 5. Some states refer back to other laws when dealing w/ adopted children 6. Escheat a. If no family member is found to inherit the decedent’s possessions, then the estate goes to the state C. Spouses 1. It is very difficult to disinherit a spouse 2. Elective Share: Testacy 3. Forced Share: Intestacy 4. Protection a. Not blood relatives, given special protection under statutory law both intestacy and testacy b. Elective or Forced Share 1) Available to a surviving spouse 2) Not limited to property acquired w/ earnings a) It is enforceable against all of the decedent spouse’s property b) Non-probate transfers pose challenges in implementing this idea 3) When allowed: a) If the gift is less than what the spouse would have received under the

statute c. Probate Assets 1) Anything listed in the will 2) Anything that is titled to the decedent 3) Factors: a) What happens if the decedent provides for the spouse outside of the will? b) Should the length of the marriage determine what a surviving spouse receives? c) Should the prenuptial agreements factor into spouse’s share? d. Property Set Asides 1) For families and spouses 2) Done so that the survivors are provided for, the bare minimum 5. Disqualification of the Surviving Spouse a. Death b. Handout c. Failure to provide the required support 6. Waiver a. Prenup-PostNup Agreements b. Waiving their rights to their claim of the estate of the deceased spouse c. Generally permissible subject to certain limitations 1) Duress 2) Unequal bargaining power 3) Non-disclosure 4) Involuntary D. Choice of Law 1. Real property a. The law where the property sits is the law that will apply 2. Where the decedent is domiciled 3. The will has to be properly executed in the state where it was written to be valid E. Simultaneous Death 1. Many jurisdictions require that a spouse must survive minimum of 120 hours in order to inherit from the state II. Representation A. Strict Per Stirpes 1. First Generation 2. Generation nearest the decedent a. How many people in the generation determines how the estate will be divided b. All who are living + all who predeceased living descendants B. Modern Per Stirpes 1. Starting at the generation nearest the decedent where someone is living C. Per Capita @ Each Generation 1. Used by New York 2. Generation nearest the decedent where someone is living a. Give all people in that generation their equal share 3. The remainder is left in a hotchpot to the next generation

D. Half-Blood 1. In some jurisdictions, half-bloods are only treated half as well a. Only get ½ of what a whole-blood would get 2. In NY, Half-bloods get the same amount as whole-bloods E. Adopted Children 1. Considered to be born into new families a. The adopted children can inherit from genetic parents, but genetic parents cannot adopt from them b. Maybe they can inherit from both sets of parents, and both sets of parents ma adopt through them 2. Depends on the jurisdiction 3. If the child is adopted by a person close in relation, then they are not cut off from inheritance from his or her birth parents a. However, adopted children cannot get double inheritance from the adoptive and birth relationship F. From and Through 1. Through a. Means that children can inherit through their parents b. Specifically, the property/money is not from the parent, but someone else and the child is standing in the parent’s place in terms of inheritance 2. From a. The child inherits directly from the parent, receives the parent’s assets G. Posthumous Children 1. A child who is conceived before, but born after, the father’s death 2. Assumption that the deceased is the father if the couple was married a. This assumption is rebuttable 3.There are concerns that technology will allow for the attempt of fraud against intestacy laws 4. Issue concerning whether they are marital children a. What standing do these children have in estate distribution? 1) The children can always inherit from the mother b. There are ifs considering whether the children may inherit from the father 1) They can usually inherit when there is public record that the man is the father 5. In cases like these, use reasonableness H. Death of a Beneficiary before Death of the Testator 1. If a beneficiary of a will dies before the testator, their gift has lapsed a. If no demonstrative, specific, general bequest goes to the residual

b. If no residual, would pass via intestacy c. Favor for testacy vs. intestacy 2. Anti-Lapse Statutes a. Substitutes another beneficiary for the beneficiary who has predeceased the testator 1) Degree of relation is required in most states b. The words of survivorship are enough for the statute not to apply 3. Residuary

a. After everything has been disposed from the will, whatever is left will go to a certain named party, intestate, etc b. Can also be a class giftIII. Advancements A. Definition 1. Money, property, etc given to the child/heir while the decedent is still living that can be considered an advancement of the inheritance 2. The advancement will be considered when determining the shares of the inheritance 3. Requires: contemporaneous writing that it is an advancement, oral admissions are not sufficient 4. The value of the advancement is its value at the time it was given B. Professional degrees are considered advancement more often than undergraduate degrees C. Procedure 1. Add the advancement to the hotchpot and divide by the number of children 2. Then subtract the amount of the advancement from the share the child who received the advancement would have received had she not been given the advancement III. Minor Children A. Who cares for them? 1. There is a question of who takes care for the child and who takes care of the property a. Not always the same person B. Physical Custody of the Child 1. Guardianships 2. Should be decided by the parents, but that does not always happen a. If the parents fail to select guardians, then the court selects from the parents’ living family members C. Assets D. Trusts 1. Revocable Intervivos Trusts a. Created during the lifetime of the donor b. It can be changed or revoked by the donor 2. Testamentary (Irrevocable) a. Created @ death b. Can be created by the will 3. Another way to provide for the well-being of the minor heir IV. Bars to Succession A. Homicide 1. Concern about people profiting from their wrongdoing 2. What was the intent of the person who killed the spouse? 3. Accused vs. Convicted 4. What was the crime of the accused and what was the outcome of the trial? 5. Concern about excessive punishments a. Taking away inheritance when the person is already serving a prison

sentence may be seen as excessive 6. Consult the Estate Laws a. Concern about disturbing the laws that govern the state C. Disclaimer 1. Voluntarily not accepting the inheritance 2. Done to avoid taxes a. They might have to claim it as income 3. Keeps the property away from creditors D. Failure to Survive the Decedent 1. Representation allowed when there is a blood relationship E. Simultaneous Death F. Adoption 1. Child has been disinherited and bars the natural parents from adopting through them G. Contractual Bar H. Divorce 1. Bars a former spouse from inheriting I. Abandonment of Minor Children 1. Abandonment 2. Failure to support 3. Failure to establish paternity V. Wills A. Definition 1. An oral declaration or written instrument made to take effect upon death 2. Whereby a person disposes of property or directs how it shall not be disposed of, disposes his body, or any part thereof, exercises a power, appoints a fiduciary, or makes any other provision for the administration of his estate, which is revocable during his lifetime (you can make a trust in a will) 3. The will used will be the last valid instrument the decedent has on the day of his/her death 4. To be valid, it must be in writing, signed, and witnessed B. Codicil 1. Amendment to the Will 2. Held to the same standards of the will C. Mental Capacity for Wills 1. Requirements a. Know the nature and extent of the property b. The natural objects of their bounty c. The disposition that they are making of that property d. Relating these elements to one another and forming an orderly disposition of this property 2. Majority a. The burden of proving the lack of testamentary capacity is one the person contesting the will 3. Ante-Mortem Probate a. Contesting the capacity of the person before the person dies

b. Cuts freedom of the testator to make a will - Problem c. Might make it easier to determine whether the person had the mental capacity to create a will whole the person is still living – Benefit 4. Purpose a. Protects the family from outside influences b. Protects the testator, protects them from undue influences c. Might legitimize the process 5. The mental issue had to cause the testator to make this particular distribution and did the testator hold this belief despite all reason to the contrary a. Mistakes are different, and the “will” will not be disturbed b. Insane delusions that do affect/influence the testator’s capacity can change the way the will is distributed c. Most jurisdictions require that the insane delusion affected or influenced the will to negate mental capacity D. Undue Influence 1. Outside influence that is causing the testator to make certain decisions about the will 2. Cases often arise when there is a confidential relationship b/w the person creating the will and the person who stands to benefit from the change a. May also be shown by an unnatural disposition of property in the will 3. Raising the Inference of Undue Influence a. The donor was susceptible to undue influence b. The alleged wrongdoer had an opportunity to exert undue influence c. The alleged wrongdoer had a disposition to exert undue influence, and d. There was a result appearing to be the effect of the undue influence 4. Duress is the new undue influence E. Fraud 1. Deliberate misrepresentation by someone who stands to gain and does that which he would not have done had the misrepresentation not been made 2. Types a. Inducement 1) Fooling the testator, trickery, intent to deceive b. Execution 1) Getting the testator to sing the wrong document F. Tortuous Interference with an Expectancy 1. An intentional interference w/ an expected inheritance or gift a. The plaintiff must prove that the interference involved conduct tortuous in itself, such as fraud, duress, or undue influence b. This action is not a will contest, it is an action against the tort feasor 2. Elements a. The existence of an expectancy b. Intentional interference w/ the expectancy through tortuous conduct c. Causation d. Damages G. Formalities

1. Writing 2. Signature by the testator a. The fill name is preferable b. A mark, cross, abbreviation or nickname can be sufficient 1) Usually if the testator is physically incapable or illiterate c. The testator should sign first 2) Some jurisdictions and UPC allow for the witness to sign the will after the testator has died a) They are signing that the testator signed the will while he or she was still alive b) Follows policy of preferring testacy to intestacy 3. Attestation by the witnesses a. Attestation Clause 1) A clause that the witness signs that they have witnessed the instrument 2) It might also be an affidavit, which would prevent the witness from being called into court b. Presence 1) For some jurisidcitions, for the will to be valid, the presence of the witnesses is satisfied when the testator is capable of seeing the witneses sign for the will to be valid 2) Line of Sight Test a) The testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look 3) Conscious Presence Test a) The witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events comprehends that the witness is in the act if signing 4. These procedure for these requirements will depend on the jurisdiction H. Safeguarding the Will 1. Keep wills in secure place 2. Publication a. Required in NY b. Lawyer asks 3 Questions: 1) Is this your will? 2) Have your read and understood it? 3) Does it dispose of your property in accordance w/ your wishes? c. Declaration that this will belongs to the testator 1) Shows mental capacity 3. Three Witnesses a. It might make sense to have 3 witnesses b/c some states require 3 b. One of the witnesses might be a beneficiary c. Self-Proving Affidavit 1) Signed so that the witnesses do not have to go to court to prove the will 2) Also done if the witness is unavailable should the will be attested 4. Subscription a. Signed @ the bottom

b. Gives the impression that everything above the signature is what the testator intended I. Holographic Wills 1. One where the signature and the material provisions are in the handwriting of the testator 2. Conditional Will a. One where the testator is concerned about a particular type of death 3. Present vs. Conditional Intent a. Question whether this writing has the present intent to make a testamentary gift 4. Informal writing is not fatal, so long as it is mean to create a testamentary gift, disposition J. Nuncupative Wills 1. Oral will 2. Must be established by @ least 2 witnesses K. Pretermitted Child 1. A child that has accidentally been forgotten, omitted from the will 2. This rule allows this type of child to share in the parent’s estate L. Components of Wills 1. Integration of Wills a. Papers that show testamentary intent, but are not included in the will 1) Means not stated in writing/language of the will b. Many papers, some might not be referred to in the will, but the extraneous papers might still be part of the will c. Incorporation by Reference 1) When the will refers to a specific document that contains information about property to be disposed d. To be Incorporated into a will 1) Identified as an extension of the will, intent to dispose of property 2) The writing must have been in existence @ the time of the execution of the will e. General Rule: You should not be able to continuously add things to will 2. Revival a. In order for a codicil to republish an earlier will, the earlier will must have been validly executed 3. Acts of Independent Significance a. Doctrine that permits extrinsic evidence to identify the will beneficiaries or property passing under the will b. If the beneficiary or property designations are identified by acts or events that have a significance apart from their effect on the will, the gift upheld under this doctrine c. A will may dispose of property by reference to acts and events that have a significance apart from their effect upon the dispositions made by the will M. Ademption 1. Types a. Extinction

1) The testator no longer has possession of the gift b. Satisfaction 1) The gift has already been given to the intended beneficiary during the lifetime of the testator N. Abatement 1. The estate does not have enough assets to pay the debts and dispositions in the will 2. The money has to come from somewhere 3. The order of abatement a. Where the money comes from first a. Residuary devises b. General devises c. Specific and Demonstrative 1) Specific Devise: this ring goes to this person 2) Demonstrative: $100,000 – some figure from a specific source O. Pour Over Will 1. Incorporation by Reference a. The thing being incorporated had to be in existence at the time of the will 2. Independent Significance a. The instrument did not have to be in existence, if it was it had to be created before the death of the testator VI. Will Invalidation A. The part of the will that is invalid is struck and the disposed property goes into the hotchpot B. If part of the will is invalidated, that part of the will goes by intestacy laws C. Invalid when it is not properly executed D. Void 1. The gift is void when the beneficiary is not a living human being a. When the beneficiary is an animal or deceased b. The gift cannot pass to the beneficiary VII. Revocation of the Will A. Methods 1. Physically destroying the will a. In order for a marking to be seen as a revocation the will, the mark must touch the words of the will 2. Writing a new will a. Any subsequent writing must be validly executed 3. Subsequent divorce revokes a will, but only to the extent that a gift is made to a former spouse 4. Lost wills can be probated, so long as there is evidence that it was properly executed and the loss of the will did not occur through fraud a. If the will is in the possession of the testator, but it cannot be found @ the time of death, it gives rise to the rebuttable presumption that the testator destroyed the will, thus revoking the will B. Revival 1. Does the revocation of a later will revive the earlier will?

a. YES, if there is evidence of intent that the testator wishes to revive the earlier will b. Minority Rule: There is no revival, unless the earlier will is newly executedVIII. Non-Probate Transfers and Planning for Incapacity A. Will Substitutes 1. Life Insurance a. Contractual agreement b. Can change the name of the beneficiary in writing 1) Contract describes how the beneficiary is to be changed 2. Pensions 3. Inter Vivos Trusts a. Settlor, Trustor, Creator, 1) Person who creates the trust 2) Transfers the title/trust property to the trustee b. Beneficiary 1) Person who benefits from the trust 2) Has equitable title in the property c. Trust Property 1) Property that is subject to the trust 2) Will a trust fail for lack of property? a) No, especially if the assets for this trust will flow over from the property of the estate d. Trustee 1) Holds legal title 2) Holds the property for the benefit of the beneficiary 3) Has fiduciary duties to the beneficiary 4) Make prudent decisions/investments 5) Impartiality 6) Collecting and protecting the trust property 7) Segregates trust from personal property 8) Powers a) Decided by statutes b) Make prudent investments c) Fee simple owner, but cannot co-mingle property 9) Breached Duty – Personally Liable for: a) Negligence b) Deals may be invalidated c) Removed as trustee e. Takes property out of the probate estate which is costly and time consuming f. Can be revocable or irrevocable g. Interest created @ the time the property is delivered to the trustee 4. Testamentary Trusts 5. POD: Payable on Death Accounts a. Savings 6. Concurrent Ownership a. With Rights of Survivorship

1) JTWROS a) Time b) Title c) Interest d) Possession b. Tenancy by the Entirety 1) Time, Title (Cannot be personal Property), Interest, Possession, Person (Only available to married persons) 7. General a. Whether they would be included in the estate b. Whether they should follow the same provisions detailed in the Wills Act B. Planning for Incapacity 1. Power of the Attorney a. Principal gives the agent the authority to act on his or her behalf 1) Terminates upon incapacitation 2) Sometimes done for limited time periods 3) Usually done for financial reasons 4) Done for members of the military 5) Done for physical incapacity b. Agent owes the principal a fiduciary duty 1) Loyalty 2) Care 3) Obedience 4) Must act on behalf of the principal’s interest 5) The agent cannot act in self-dealing 6) When the agent dies, the power is terminated, unless the principal has named someone else to become the agent 2. Durable Power of Attorney a. Principal gives the agent the authority to act on his or her behalf b. Endures after incapacitation of the principal c. In some jurisdictions there is a presumption of this type of power of attorney unless otherwise stated 1) NY d. Death of the principal terminates durable power of attorney e. If the principal becomes competent, the principal may terminate the power of attorney 3. Advanced Directives a. Living Will 1) Medical Directive 2) Speaks directly to the medical professionals from the principal b. Health Care Proxy 1) Durable power for health care decisions 2) Allows the agent to make medical decisions a) However, the agent has to make decisions that the principal would want i) May cause issues if the principal’s intentions are unknown 4. Disposition of the Body

a. Usually goes to the next of kin or spouse XI. Trusts A. Future Interests 1. Fee Simple Absolute a. Highest of the present estates b. The interest in the property is potentially infinite c. Most robust bundle of sticks d. No future interests in this property 2. Fee Simple Determinable a. Defeasible fee b. Possibility of reverter retained by grantor 1) Future interest retained in grantor c. “So Long As” d. No right granted in 3rd Party e. To A so long as A finishes law school 3. Fee Simple Subject to Condition Subsequent a. Has to do w/ time b. “But if”, “Provided That”, “If However” c. Right of Entry or Power of Termination 1) Future interest retained by grantor d. No right granted in 3rd party grantee e. To A, if however, she does not finish law school, then back to O 4. Life Estate a. Grantee holds for their life or the life of someone else b. When there is a life estate, and the interest goes back to the grantor, then there is a reversion c. When there is a future interest in another grantee that follows a life estate is a remainder d. Remainder vs. Executory Interest 1) Remainder waits around for the natural expiration of the estate when the interests vests 2) Remainders a) Contingent Remainder b) Vested Remainder 1) To be vested, the estate must not be subject to condition precedent and has a presently ascertained persons c) Vested Subject to Open 1) Class Gift 2) O to A for life, then to A’s children 3) A has to have an ascertainable child – vested a) If A is still living, then A can have more children d) Vested Subject to Defeasance/Divestment 1) O to A for Life, then to C, but if C drops out of law school, then to D 2) C has an executory interest in this instance 3) Remainders never follow fees 4) Bad for one, bad for all

5. Determinable Life Estates a.The future interests goes back to the grantor (?) 6. Executory Interests a. Shifting 1) O to A for life, so long as Blackacre is used as a school, then it goes to C 2) Shifting b/c it artificially cuts short another grantee’s interest b. Springing 1) O to C when Blackacre is used as a school 2) Springing b/c if the event happens, the property will spring out from the from the transferor to the transferee 7. General Rules a. Living people can still reproduce b. Living people cannot have heirs c. Only decedents can have heirs 1) Heirs are decided by statutes 8. Special Rules a. No creation of new interests b. Presumption against forfeiture c. Remainders never follow fees d. Living people do not have heirs e. Special Persons 1) Fertile Octogenarian 2) Precocious Toddler B. Testamentary Trusts 1. Interest is created upon the death of the settlor C. Intervivos conveyance 1. Interest created upon the delivery of the deed D. Vested 1. Someone eligible to take the gift, without having to complete a condition precedent E. Creation 1. A transfer of property to an individual for the use and benefit of another person manifests an intention to create a trust 2. The trustee has legal title to the property/assets a. The beneficiary has equitable title F. Charitable Trusts 1. Does not have to have an ascertainable beneficiary a. Must be for the benefit of a charitable purpose 1) Religion 2) Edu 3) Needy/Poor 4) The promotion of health b. Trusts for a political party do not typically constitute a charitable trust 2. RAP does not apply 3. The state attorney general is the principal party w/ standing to enforce a charitable trust

4. Cy Pres a. Modification of a charitable trust if the purpose becomes: 1) Illegal 2) Impossible 3) Impracticable b. The court may direct the application of the trust property to another charitable purpose that approximates the settlor’s intention c. The doctrine addresses the risk that b/c of a charitable trust may have a perpetual existence, changed circumstances will render the original purpose obsolete G. Mandatory Trusts 1. The creditors of the beneficiary may reach the trust a. B/c the trustee does not have discretion to make dispositions 2. The creditor can demand payment through the beneficiary H. Protective Trusts 1. Done if the jurisdiction does not recognize the spendthrift trust a. Spendthrift Trust 1) The creditors of the beneficiary cannot stand in his/her shoes and demand payment 2) The interest of the beneficiary is not transferrable 2. The trustee is directed to pay income to A but if A’s creditors attach A’s interest, A’s mandatory income interest automatically changed to A’s discretionary interest 3. The trustee then has discretion to apply the income for A’s benefit and the creditors of A cannot demand any part of it 4. Policy Question: Are we concerned about the interest of the creditors who had the ability to protect their own assets? I. Discriminatory Trusts 1. If the trustee of a racially restrictive trust is a governmental body, courts have held that the administration of the trust is forbidden by the EPC, thus the racial restrictions are unenforceable 2. When the trustee is a private individual, enforcing the racial restriction is not unconstitutional a. Still might violate state or federal statutes 3. The trust can fail if the settlor is a bona fide racist and would prefer that the trust fail rather than be used by those who were discriminated against J. Donor 1. The person who creates the power of appointment K. Donee 1. The person who holds the power 2. Beneficiary 3. Not a trustee in most cases, no fiduciary that attaches L. General Power of Appointment 1. A power which is exercised in favor of the donee, the estate, his creditors, or the creditors of his estate M. Special Powers of Appointment

1. Special Power a. A power not exercisable in favor of the donee, his estate, his creditors of his estate b. Limited power c. Non-general power N. Presently Exercisable 1. Deed during life O. Testamentary Power 1. Created in a will P. Specific Reference Requirement 1. To prevent an unintentional power of appointment, the donor will sometimes provide that the power can be exercised only by an instrument executed after the date of the creating instrument that refers specifically to the power 2. Courts sometimes require this X. Class Gifts A. Is the settlor group minded? 1. Evidence of Group Mindedness a. Specific names indicate dispositions to individuals, not a group of people B. Class closing 1. When the gift is available for distribution AND 2. When @ least one member of the class qualifies for distribution 3. Result a. Anyone born at the time the class closes, is considered a member of the class, but they still have to meet the requirements b. Any after born is shut out of the class C. Bad for one, bad for all XI. Rules Against Perpetuities A. Steps 1. Classify the interests @ creation 2. Does RAP apply? 3. If RAP applies, is RAP violated? 4. Strike offending interests 5. Re-classify interests B. Rule 1. No interest, in real or personal property, is good unless it vests, if at all, not later than 21 years after some life in being @ the time of the creation of the interests 2. If in 21 years if all the people alive today would have died, would all the interests have vested? a. Try to imagine a scenario where it remains unvested C. Application 1. Future Interests a. Executory b. Contingent Estates c. Vest Remainders Subject to Open

Special Power of Appointment: A person appoints someone else to determine who will inherit the estate after the person is deceased

No-Contest Clause: Leave the family something large enough that it makes it worth it for the family not contest the will

Warning Signs: Unnatural disposition

Honorary Trusts: Vehicle for providing for pets, not a traditional trust, more of a moral obligation