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 Adoption

A parent-child relationship does not exist between an individual who was the adoptee’s parent before the adoption and the adoptee unless meeting 3 exceptions

UPC 2-119 - Adoption Exceptions

Adoption by spouse of a natural parent

Adoption by a relative of a genetic parent

Adoption after death of both genetic parents

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)

An individual is not considered the parent of a child over 18 unless:

The 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

Posthumous Children - Uniform Parentage Act

Established a rebuttable presumption that a child born to a person during spouse’s lifetime or within 300 days after death of spouse is a child of that spouse

Non-Marital Children Split

Most states automatically permit inheritance from mother

Some states want acknowledgement from the father, DNA evidence, etc.

Modern Reproductive Technologies Test

Must demonstrate genetic connection between offspring and deceased

Then must show decedent BOTH affirmatively consented to posthumous conception and affirmatively consented to caring for the kid(s)

Advancements - Presumption

A gift made during a lifetime was not intended to come from their share of the estate, unless otherwise shown

Hotchpot

A gift is considered an advancement, the gift is added to the pot, the pot is distributed equally, the child’s gift is deducted from their share

When are gifts considered advancements?

Only where contemporaneous writing indicates so

Slayer Rule

Cannot commit an intentional and felonious murder and receive inheritance

Slayer Rule - Extention

Some jurisdictions extend the bar to succession to the killer’s descendants

Slayer Rule - Three Legal Title Options

Slayer retains legal title in spite of the crime

Legal title does not pass to slayer

Legal title passes to slayer but put in constructive trust for heirs

Unworthy Heirs

Not really recognized in the US

Assumed that the will deems who is worthy and who is not

Disclaimer

Refusal to take property as an heir

Disclaimer - Relation Back Doctrine

Pretend heir predeceased decedent and ordinary creditors cannot reach inheritance

Disclaimer - Decedents

Disclaimed share still goes to decedents

Will Formality - Statute of Frauds

Writing, signature, attestation and subscription by 3 witnesses

Will Formality - Wills Act

Writing, signature, attestation and subscription by 2 witnesses

Will Formality - UPC 1990

Writing, signature, attestation and subscription by 2 witnesses

Will Formality - UPC 2008 Update

Also permits notarization instead of witnesses

Are oral wills allowed?

NO

Functions of Formalities - Evidentiary Function

Supply satisfactory evidence to the court

Functions of Formalities - Channeling Function

Standardization of form simplifies administration

Functions of Formalities - Ritual/Cautionary Function

Performance of some ceremony for the purpose of impressing the transferor with the significance of his statements

Functions of Formalities - Protective Function

Prophylactic purpose of safeguarding the testator

Why do we care about the functions of formalities?

If the function is served even without the formality, then the will is likely ok

UPC 2-502: A will’s signature can be either by the

Testator

In the testator’s name by some other individual in the testator’s presence and by their direction

Presence - Two Requirements

Line of Sight

Conscious Presence

Presence - Line of Sight

The testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look

Presence - Conscious Presence

The testator, through sight, hearing, or general consciousness of events comprehends that the witness is signing

Presence - Emergency Relief

Permitted presence to be satisfied by video conferencing

Can a Witness sign after the testator died?

Under the UPC they must sign within a reasonable time (even after death)

Some states say not at all

UPC does not require each witness to be in each other’s presence

Disinterested Witnesses

UPC no longer requires a witness to be disinterested

Switched Wills Ad Hoc Relief

Probate intended will

Reform/edit the language in the will

Substantial Compliance Doctrine

Court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served

Harmless Error Rule

The Court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be their will

Holographic Will - Requirements

Written by the testator’s hand

Signed by the testator

Holographic Will - Signature

The signature can go anywhere but if it is not at the end, there is doubt as to whether it was intended for the entire document

Holographic Will - Handwriting First Generation

Entirely written, signed, and dated in the testator’s handwriting

Holographic Will - Handwriting Second Generation

1960 UPC requires only the signature and material provisions be in the testator’s handwriting

Holographic Will - Handwriting Second Generation Surplusage Theory

The handwritten portion of the instrument should be given effect as a holographic will if it makes sense without the text not written by the testator

Holographic Will - Handwriting Third Generation

1990 UPC requires only the signature and the material portions to be handwritten and allows recourse to extrinsic evidence to establish testamentary intent

Preprinted Forms SPLIT

Use the text to decipher the intent of the handwritten portion

Only look at the handwritten portion to see if it is a holograph

UPC 2-507: A will is revoked

By executing a subsequent will

By performing a revocatory act on the will (obliterate it)

Can someone else do the revocatory act?

Yes so long as it is in the testator’s presence and by the testator’s direction

Codicil

A testamentary instrument that supplements an earlier will

Must follow will formalities

Are codicils revoked when wills are revoked?

Yes, unless you can prove the codicil has independent relevance

Revocation by handwriting

If the revocation is only by a writing, and there is clear and convincing evidence that the revocation was intended by the writing, it is revoked

Lost Will Presumption

The law presumes that a will cannot be found or is found in a mutilated condition because the testator destroyed it

Lost Wills Presumption - Split

Clear and convincing evidence

Preponderance of the evidence

Lost Will Presumption - With Someone Else

If the lost or mutilated will was last known to have been in the possession of someone else, the presumption does not stand

Partial Revocation - Split

Some states permit it, some don’t

Harmless Error - Revocation

If testator’s intent to revoke is proven by clear and convincing evidence, then the harmless error rule could apply to a botched revocation by physical act

Dependent Relative Revocation

If a testator goes to revoke upon a mistaken assumption of law or fact, it is ineffective if the testator would not have revoked but for that mistake

Dependent Relative Revocation only applies if

There is an alternative plan of disposition that fails

Mistake is recited in the terms of the revoking instrument, or established by clear and convincing evidence

Doctrine of Revival

Revives a will that was revoked by a second will, but then the second will is revoked

Doctrine of Revival - Split

Revocation of Will 2 revives Will 1 if the testator so intended and such intent must be proven from the circumstances or contemporaneous oral declarations

A revoked will cannot be revived unless re-executed with testamentary formalities

UPC Revocation

If a subsequent will that wholly revoked the previous is revoked, presumed the previous remains revoked

If a subsequent will that partly revoked the previous is revoked, presumed that the previous is revived

If a subsequent will that wholly revoked the previous is itself revoked by a third will, the first will is revived

Revocation - Divorce

A divorce presumptively revokes a provision in the decedent’s will for the decedent’s divorced spouse