CK Wills & Trust Study Notes

American Succession Law (ASL) Overview

  • Freedom of Disposition: Legal right to determine property distribution after death.
    • Supports individual control over property.
    • Critiques include concerns about long-term influence and fairness.

Mechanics of Succession

  • Succession Law: Regulates property transfer after death.
  • Limits on Distribution:
    • Federal wealth transfer taxes (estate, gift, generation-skipping taxes).
    • Creditors’ claims.
    • Family protection (spouse claims, child provisions).

Property Types

  • Probate vs Non-Probate:
    • Probate: Managed through probate courts; subject to legal rules.
    • Non-Probate: Transfers outside court (trusts, POD/TOD accounts).

Probate Court Functions

  1. Validate wills and authorizes executors.
  2. Inventory and manage estates.
  3. Distribute assets according to wills or intestacy laws.

Types of Property and Planning

  • Probate Property: Any property without specific transfer outside will.
  • Non-Probate Options: Trusts, life insurance, POD accounts.

Trusts and Their Administration

  • Incentive Trusts: Conditions on beneficiary distributions.
  • Trust Law Framework: Governed by state law (UTC & Restatement).
    • Balances donor's freedom with social considerations.

Professional Responsibilities

  • Duty to clients, ensuring careful drafting of wills and protection of intended beneficiaries.
  • Limitations on disclosure to maintain client confidentiality.

Spousal Protections

  • Elective Share: Rights for surviving spouses to claim against decedent's will.
  • Community vs Separate Property: Definitions and rights concerning property ownership.

Children’s Inclusion in Wills

  • Omission & Protection: Laws protecting unintentionally omitted children.
  • Risks of disinheritance, leading to potential legal disputes.

Intestacy Laws

  • Default rules for property distribution without a will: spouse, children, parents.
  • Simultaneous Death Rule: Must survive decedent by 120 hours to inherit.

Will Validity and Revocation

  • Execution Requirements: Varies by jurisdiction; generally includes writing, signatures, and witnesses.
  • Revocation: Can occur by executing a new will or by physical destruction.

Capacity and Will Contests

  • Testamentary Capacity: Minimal mental ability required to understand property and intent.
  • Incapacitation: Insane delusions or undue influence can invalidate a will.

Construction of Wills

  • Traditional vs Modern approaches to resolving ambiguities in wills.
  • Doctrine of Falsa Demonstratio Non Nocet: Correcting descriptions without changing substance.

Future Interests in Trusts

  • Types of future interests: reversion, possibility of reverter, rights of entry, remainder interests.
  • Power of appointment allows modified control over trust distributions.