Wills and Trusts - Midterm Salcido

Residual Beneficiary

Individual or entity designated in a will to inherit any assets that are not specifically given to other named beneficiaries

Posthumously Acquired Property SPLIT

UPC: Residual Beneficiary

Everyone Else: Goes to the heir

Choice of Law - Personal Property

Where you are domiciled at death

Choice of Law - Real Property

Where it is located

Is donor’s intent limited?

Only by prohibited laws (spousal privilege, rules against perpetuities, encouraging illegal activity, etc.)

Intestacy

Decedent leaves no will

The probate estate passes by intestacy

Partial Intestacy

Decedent leaves a will that disposes of only part of the probate estate

The rest is intestacy

Testated

Died with a will

Uniform Cohabitants Economic Remedies Act

Provides “equitable relief” for a surviving cohabitating partner

Uniform Simultaneous Death Act (1953)

If “no sufficient evidence” of survivorship, beneficiary is deemed to have predeceased donor

UPC 2-104, 2-702 (Simultaneous Death)

Claimant must establish survivorship by 120 hours (5 days) by clear and convincing evidence

Treat each as if they have predeceased the other unless 5 days

Representation

A decedent is survived by some descendants but not all, so their children represent their dead parent

Three systems of representation

English Per Stirpes

Modern Per Stirpes

1990 UPC

English Per Stirpes

Treats each line of descent equally

Property is divided into as many shares as there are living children of the designated person and deceased children who have descendants living

Vertical equity

Modern Per Stirpes

First look to see whether children survived the decedent

YES → Apply English per stirpes

NO → Estate divided equally at the first generation with living takers

1990 UPC - “Equally near, Equally dear”

Each taker at each generation is treated equally

If at least 2 in a generation are dead, combine the pot and drop it down

Descendant has no descendants

That branch is dead and gets NOTHING

Where does UPC cut off descendants?

At grandparents in their line

Disinheritance by Negative Will

Writing a will just to say explicitly that a person gets nothing

Permitted now under UPC

Disinheritance by Negative Will - Kids

Under UPC and Modern per Stirpes, if disinherited has kids, they get what their parents would have gotten

Adoption - Traditional Inheritance

Traditional law says no inheritance from bio family if adopted

Adoption - UPC Inheritance

Permits adoptee to inherit from their bio family still

Stranger to the Adoption Rule

Unless an adopted person is included as an adoptee in a class gift, a presumption exists that the adopted person is not entitled to share in the gift if made by a person not a party to the adoption itself

UPC 2-119 (stranger to the adoption)

A parent-child relationship does not exist between an individual who was the adoptee’s parent before the adoption and the adoptee unless:

Otherwise provided by court order or law

The adoption meets some criteria

UPC 2-119 (stranger to the adoption) - Adoption Criteria

Was by a spouse of a parent before the adoption

Was by a relative or the spouse or a surviving spouse of a relative of a parent

Occurred after the death of a parent before the adoption

Adult Adoption

Adoption of an adult for the purpose of bringing that person under the provisions of a pre-existing will when they were clearly not intended to be covered in not permitted

UPC 2-705 (Adult Adoption)

In construing a governing instrument of a transferor who is not a parent of an individual, the individual is not considered the child of the parent unless:

The parent, a relative of the parent, or the spouse or surviving spouse of a parent or of a relative of a parent performed functions customarily performed by a parent before the individual reached 18; OR

The parent intended to perform those functions but was prevented from doing so by death or another reason, if the intent is proved by clear and convincing evidence

Equitable Adoption

There must be a contract made between persons competent to contract (i.e., in custody of kid) and showing of the agreement by clear and convincing evidence

UPC 609 (equitable adoption)

An adult can petition for an adjudication of de facto parentage of a minor by establishing various factors such as

Living together

Consistent caretaking

Holding the child out as their own