Will and Estates Outline

DE Outline 1. Transfers of the D’s Estate  Probate—Property that passes under the decedent’s will or by intestacy o All other property that will pass at death o At death in order probate property, an administrator must be named  If D dies testate, the will should name an executor—if not named in will, that person is called administrator o Testate Estate: Person dies w/ will  Common Law: Real property is devised to devisees and personal property to legatees  Now: Heir usually means the person to take either o 3 functions of probate  1. to provide evidence of transfer of title to new owners by probated will or decree of intestate succession  2. Protects creditors by requiring payment of debts—debt are paid first  Creditors must file a claim before a certain time or it is barred  3. Distributes the D’s prop to those intended after payment to creditors o Probate can be avoided by transferring prop during D’s life into a joint tenancy, revocable or irrevocable trust or executing a K o Statutes in all states allow for avoidance of probate if where the amt of prop is small—but states differ on amt when this can happen and what sorts of property o Net Probate Estate: what actually gets distributed—to find the probate estate:  KS 59-502  Take the gross estate and subtract funeral expenses, expenses from last sickness, cost of administration, taxes, and debts (subject to homestead rts and allowances)  Non-probate—property passing under an instrument other than will that became effective upon death o EX: Joint tenancy in prop. Life ins, Ks w/ POD provisions, Interest in trust  Professional Responsibilities o Simpson v. Calivas: Atty drafting will for D owed no duty to intended beneficiaries o Majority opinion: an atty does have duty to intended beneficiaries  Reason: forseeability of injury to the intended beneficiaries— results in an exception to the normal rules of privity  A cause of action is established when the atty neg fails to establish the D’s intent as expressed to the atty  Also the intended beneficiary could be seen as a 3P beneficiary of the K o If you draft a will for the dad, you can’t show it to the child—it’s confidential, unless the dad is there requesting that it be shown and it’s the correct will o Task of probate court: to determine D’s intent at the time the will was made by the words of the will applying the rules of construction and extrinsic evidence—when applicable 2. Intestacy: Estate by Default (no will)—governed by state statute   Shares of Spouses o Studies have shown that most people want their prop to go to their spouse at death—when there are no children from a previous marriage o The most common statutory provision is to give the surviving spouse half of the estate if only one child survives but only 1/3 share if there’s more than 1 child o KS—spouse gets half and the children get half in equal shares—the GC won’t get anything unless their parents are dead and then they will take their parents share in equal parts o Commonly (including UPC) statutes say if there are no children, then the spouse shares w/ the D’s parents—if D doesn’t have parents, then the spouse gets everything o A person succeeds to the prop only if they outlive the D by certain amt of time  The Uniform Simultaneous Death Act (USDA) provides that where there is no sufficient evidence of the order of deaths, the beneficiary is deemed to predecease the D  Survivorship is a fact that must be proven by a preponderance of the evidence by the party whose claim depends on survivorship  The UPC says that an heir or devises or life ins beneficiary must survive the D by 120 hrs (5 days) to not have predeceased the D  The USDA decided in 1991 followed the UPC approach  Descendants shares o After the spouse’s share is set aside, the children and issue of deceased children take the remainder of prop to exclusion of everyone else o 1 English distribution by stirpes  To divide the prop into as many shares as there are living children and deceased children who have living issue  The issue of the predeceased children are moved into their parents position at the first generation o EX: 2 dead children A & B—each have 3 children (A1-3, B1-3) and 1live child C  The prop is divided into thirds—each of A and B’s children will get 1/9th of the estate and then C will get 1/3 o Modern (American) per stirpes or per capita w/ representation—Majority The D’s estate is divided into shares at the generational level nearest the D where one or more descendants of the D are alive and provide for rep of any deceased descendant on that level by his issue  EX: D had 3 children A-C all are dead and 9 GC. A-C each had 3 children A1-3, B1-3, and C1-3. All of the GC are dead except A2 and C3. A2 and C3 each get 1/9th share. The rest of the dead GC’s 1/9th share will be dropped down to their children to be split in equal shares— so if A1 had 2 children, they would each get 1/18th of the pot  UPC—variation of this= per capita at each generation  The initial division is made at the level where one or more descendants are alive—the shares of a deceased person on that level are treated as a pot and are dropped down and divided equally among the issue on the next generational level o EX: D had 3 children A-C who are dead. A-C each had 3 children. Of the 9 GC only A1 is alive and A2, B1 and C1 didn’t have children, but A3, B2, B3, C2, &C3 all had 1 child—the GGC.  The shares would be divided and A1’s level= A1 would receive 1/6 (no share for A2, B1 and C1 b/c they didn’t have children)  The remaining 5/6 would be pooled together and divided by the next generation= 5 GGC  Each GGC would get 1/6 o Shares of Ancestors and Collaterals  Who will the intestate estate go to  First, half will go to the spouse, the other half to children, no children then their descendents, no descendents, then go to parents  No descendents (children, GC) or ancestors (parents, gp) then you will go to more remotely related relatives or collateral kindred  When there’s no spouse parent or descendant, then the prop passes to brothers and sisters and their descendants  If there’s no first in line collaterals, the states differ who the prop will go to next o Parentelic System  Pases to GP and their descendants and then to GGP and descendants and so on o Degree of relationship  Passes to the closest kin—counting degrees of kinship   To count, start at the D and count the steps up (one for each generation to the nearest common ancestor) and then count the steps down to the clamant from the common ancestor  The total number of steps is the degree of relationship o KS (59-507)—if there is no spouse and no issue, then you go to the parents in equal shares—one parent, then they would get all  If not parents, then it would go to the parent’s heirs is equal shares (brothers and sisters)  59-508—if B is dead and has 2 Cs and S is alive, the 2 Cs would get ¼ and S would get ½  If no decendents from the parents, then you would go to the next closest relative by degree of relationship—aunts and uncle would be next—this would be 3rd degree (see chart on pg 79)  There is a 6th degree limit  The UPC doesn’t allow inheritance by intestate succession beyond grandparents and their descendants o The UPC limit was held to bear a rational relationship to a permissible state objective to be constitutional (Jurek)  F the intestate leaves no survivors w/in a certain degree of relationship, then the property escheats to the state  The only person who can contest a will are those who stand to take if the will is invalid (Wendel) o Half-bloods  Majority: relative of half-blood is treated the same as relative of whole blood  Minority: Half blood given half a share  Minority: Half blood will only inherit if there is no full blood relative Transfers to children o Adopted children  Adopted children’s rt to inherit vary from state to state—3 basic schemes—though there are many variations of these o Some state: the child can only inherit from their adopted parent and their relatives o Other view: Child can inherit from both adoptive parents and natural parents and relatives.  o UPC and other states: the child can inherit from adoptive parents and natural parents and relatives if the adopted parent is a step-parent o KS (59-501) Allows inheritance for adopted children from adopted parents—but adopted children in KS can still inherit from birth parents(2118)(this is min rule) but birth parents can’t inherit from adopted child  If a GC is adopted as a child, he will take as a child—not GC  Surrogacy: Parenthood should be determined by intent of the parties, as shown by the surrogacy K  A child raised as part of a stepparent or foster family may inherit from that relationship if it began while the child was a minor and the child would have been adopted but for a legal barrier o After the child reaches majority, a formal adoption must take place for inheritance purposes  Equitable Adoptions: Permits a child who was equitably adopted (but not legally for various reasons) to inherit from like the foster parents over the objection of the adoptive parent’s heirs—but an equitably adoptive parent can’t inherit from the child  Adopted Adults: most states don’t distinguish between adult and child adoptions  Adoption of an adult can be useful in preventing a will contest o Posthumous children  For the purposes of inheritance, it would be to the child’s advantage to be treated as in being at time of conception—opposed to at birth, the child will be treated so  Cts have established a rebuttable presumption of a 280 day gestation period—the child having the BOP  The Uniform Parentage Act—presumes that a child born to a woman w/in 300 days after the death of her husband is a child of that husband  KS 501: Includes posthumous child as intestate taker o Non-marital children  CL—a child born out of wedlock was considered a child of no one and couldn’t inherit from the father or mother—the only one that could inherit from the child was his spouse or descendants  Now—All state allow the child to inherit from the mother but states vary on whether the child can inherit from the father  KS—(59-501)—Parent includes anyone determined and directs you how to determine parentage o o o o The UPA (Uniform Parentage Act)—adopted in 1/3 of the states, says that the parent-child relationship confers rts and obligations— regardless of the parents marital status  In most states, paternity can be proven after the father’s death by clear and convincing evidence Reproductive tech  Considerations:  Time limitations and whether the estate is already administered Advancements  Irrelevant in the situation of a will  In intestate distribution, an administrator can include in the distribution of shares, the value of any prop that the decedent while living gave the child by way of an advancement  CL—any lifetime gift to a child was presumed to be an advancement or prepayment of the child’s intestate share  The child had the burden to prove that the lifetime transfer was intended to be a gift and not counted against the child’s share of the estate  If a child predeceases the parent the amt of advanvcement is deducted from the shares going to the child’s decendents  Today—Many states have reversed the CL presumption b/c of problems in proving intent  In these states, a lifetime gift is assumed not to be an advancement unless it is declared as such in writing and signed by the grantor  KS 59-510—the amt will count as advancement in intestate  Its all about D’s intent at the time of the advancement Expectancy:  No living person has heirs but their heirs apparent are their expectancy Guardianship and Conservatorship of Minors  Guardian—is responsible for a minor child’s custody and care  If both parents die while the child is a minor, the ct will appoint a guardian from among the closest relatives  KS—59-3054—you can designate a guardian in a will  When the child has $ over a certain amt (usually 10k) the guardian isn’t able to manage the $ for them—you then have 3 options  1. Conservator: o More cumbersome—has to acct to ct for $--very restrictive  2. Custodian—under UTMA o Person who is given property to hold for the benefit of a minor—has rt to manage and invest prop   o Drawback—has to deliver all prop when minor reaches 21 3. Trust o Most flexible of prop arrangements for minors—it can be tailored specifically for family circumstances and for the testator’s desire and you can specify when child gets $  Bars to succession o Homicide  In many jx, statutes bar, in certain instances, a person who has killed another from taking by descent or distribution form the person that was killed  Jx that don’t have specific statute, follow one of the 3 lines of decision:  1. The legal title passes to the slayer and may be retained in spite of the crime  2. Legal title will not pass to slayer b/c of equitable principle that one should not profit from his crime  3. Legal title passes but the slayer just holds it as constructive trust for the heirs or next of kin of D  The typical view is that the killer is treated as predeceasing the victim  UPC: Killer is treated as he disclaimed the property  KS 59-513  Bars taking where there was a felonious killing o Disclaimer  Usually done to avoid taxes, creditors, avoid losing social aid or to get prop to go to someone else  An intestate successor cant prevent title from passing to him  CL—if heir refuses to accept, the title passes to the heir and then to the next intestate successor  A disclaimer must be filed w/ ct w/in certain time  A testate gift can be refused, thus preventing title from passing— gifts requires acceptance  CL—Treated as though the heir received the gift and then made a taxable gift to the person who would take by intestate  Disclaimer Legislation  Most states have enacted statutes that provide that the disclaimant is treated as predeceasing the the D  UPC EX: O dies leaving prop to A (who has 4 Cs) and B (who is dead and has 1 C). A disclaims prop—how would it pass? o A’s 4 kids would split A’s ½ share and B’s kid would get the other half  If a person is receiving public aid and disclaims gift b/c he would lose his aid elgibility, the disqualification will happen regardless of whether the gift is taken or not and make recipient liable for any $ wrongly pd by the state (Troy v Hart)  Giving away property before applying for Medicaid will render the applicant disqualified 3. Wills: Capacity and Contests  Mental Capacity o Standing—who will contest—the heirs that stand to take more by intestate than under the will o Test: Testator must know/have ability to know (at the time of execution)  The nature and extent of his property  The persons who are the natural objects of his bounty  The disposition he is making; and  How these matters relate so as to form an orderly plan for the disposition of his property o Req’s MC  Age: most state require testator to be at least 18  MC can’t be destroyed by showing a few isolated acts unless they directly effect the testamentary act (Estate of Wright)  Mental capacity for marriage is less than for will o Insane Delusion  On may have MC to execute will but an ID may cause all or part of will to fail for lack of testamentary capacity  Maj View: an delusion is insane even if there is some factual basis for it o Mistake: Difference between ID and Mistake:  Mistake is a belief that can be corrected if told the truth an ID is not capable of correction—A ct won’t invalidate a will b/c of mistake but they will b/c of ID  Mistake in the inducement: you want to leave prop to A but you think he’s dead  Very hard to challenge  Mistake in the execution: You though there was a provision in the will that wasn’t there  Easier to challenge  Undue Influence o Occurs when testator s coerced into doing something that he doesn’t want to do—his will is overcome by the desires of another o Confidential Relationship Test  T is susceptible to UI  Influencer has motive of exercising UI  Influencer has opportunity  Result of the will is from the influence    o Sexual relationships cast a suspicion of UI o A rebuttable presumption of UI arises when atty drafts will and also is a beneficiary under it. Exception exists when the atty is a relative.  There are a number of legal and ethical problems w/ this as well o The influencer can be someone other the one who stands to benefit o Result of UI—remedies  Intestacy or using an earlier will  Constructive trust  Tort  Fraud o Exist where the T is deceived by a misrep and does something he wouldn’t have done but for the misrep o Elements:  Intent to deceive T  Purpose of effecting the testamentary disposition o The will will be invalid for fraud if the testator wouldn’t have disposed of the prop in such way had he known the true facts o Fraud by the inducement:  Occurs when one misreps the facts to make T execute a certain provision in a will, or refrain from revoking a will or to not execute a will o Fraud in the execution  Where one misreps the character or contents of the docs signed by the T that doesn’t carry out the T’s true intentions Duress Tortious Interference w/ expectancy o Another action in pursuant to probate remedies. o This is where there is an expectancy of inheriting certain gift. o A no-contest clause does not barr this remedy b/c the lawsuit isn’t a will contest. Punitive damages are recoverable. 4. Wills: Formalities and Forms  Execution of wills o Attested wills (witnessed will)  Function of formalities  Many state require certain formalities for wills—if the formalities are followed, the will is invalid  4 Functions of formalities o 1. Ritual: If parties go through the rituals req’d the ct assumes that the executing party intended to execute the will and was aware of what they were doing o 2. Evidentiary: Performance of req’d rituals is evidence that she was aware of what she was doing o 3. Protective: rituals will protect the T from UI o o o o o 4. Channeling: the req’t create a safe harbor for the testator—adhearance to the rituals assures that the will is valid and the ct will comply w/ its terms  Diff in formalities from state to state  The diff stem from most states are descendants of 2 different English Laws o The SOF o The Wills Act (1837)  UPC (2-502)—will must be in writing, signed by either the T or someone at his direction and 2 witnesses o Wills that don’t follow these formalities may be deemed holographic wills and will still be valid as long as the material portions are in T’s handwriting Actual formalties (3 below all states require)  In writing  Signature by T  Some states say any writing after the signature is invalid  Witnesses  States vary on how many witnesses  Attestation by witnesses: will has to be signed in the presence of the witnesses—and then the witnesses sign or given to the witnesses afterwards by T w/ assertion that it is T’s signature at the bottom of the will—Witness must actually see the signature  Purging statutes o Statute purges attesting witness from will of any benefit she stands to receive unless there are enough uninterested witnesses o This is to protect the T from fraud and UI at the moment the will is being executed o A disclaimer of the property by interested witness isn’t enough to turn interested witness into disinterested o UPC—has done away w/ purging an interested witness  Curative Doctrines Keeping the will safe  Typically, the lawyer keeps a copy and send the original w/ the client or vis versa Substantial compliance  Some courts will admit to probate a will that substantially complies w/ the statutory formalities  The 3rd Restatement of Prop, Will and Donative Transfers and the UPC all accept this doctrine along w/ several states   o Ways to avoid wills being contested  Have client handwrite out wishes to atty  Have atty respond, stating the consequences of the wishes  Have client then write back setting for the reason for the disposition  Videotape T explaining his reasons for how he did his will  Insert no-contest clause  Use other means to distribute prop when you want to give it in an “unnatural way” (to a neighbor)  Non-probate transfers: Joint tenency, POD accts, revocable IV trust o Holographic wills  A will signed by the T alone (no witnesses)—signature by T can be anywhere on will as long as its there  ½ the states recognize these wills  That states that allow H will usually follow 1 of 2 views  1. H will is valid as long as T’s signature and material portions of the will are handwritten o This is accepted by the UPC, Wills and Donative trans and Restatement of Prop  2. Other states require the whole will to be handwritten— “fill in the Blank” wills aren’t accepted  Some states require that the H will be dated  H wills don’t have to be in formal docs—they can be in the form of a letter, mortgage, written on wood, etc o Conditional Wills  I will give you x if I don’t return from my trip  Have generally been held to transfer the prop upon the T’s death regardless of the cause of death Revocation of wills o You can’t make an irrevocable will o Revocation by writing or physical act—the 2 ways a will can be revoked  Revocation by writing—can be done expressly or by inconsistency  Expressly: Specifically states that upon execution all prior wills are revoked  Inconsistency: makes a disposition of the property that is inconsistent w/ what was made in a former will o When the subsequent will is only partially inconsistent, it is viewed as a codicil (a supplement)  Revocation by physical act  If written words are to be used, the writing must be over the part that was meant to be destroyed  To physically revoke a will you typically have to tear it up or burn it If evidence is shown that T had the will in her possession before death but the will isn’t found, the presumption arises that T meant for the will to be destroyed o There is also a presumption that all copies of the will are destroyed as well  KS 59-611: Revocation by destroying a will has to be one of the physical acts allowed in statute plus intent to revoke  Revocation of a will destroys the codicils to it  Even if the T meant to revoke the will but did so improperly, the will will still be offered for probate  UPC—allows revocation by the above stated manner (CL rules)  Differs from CL in that the actual words themselves don’t have to be destroyed  UPC, along w/ some state allow partial revocation of an existing will  Other states require a subsequent writing for partial revocation  KS—doesn’t allow partial revocation by physical act—a subsequent instrument is needed o Dependent relative revocation and revival  Under DRR, if a person revokes a will upon a mistaken assumption of law or fact and the revocation wouldn’t have been made if D knew the truth, the revocation will be ineffective  Typical situation is that the T thinks that by destroying the 2nd will he revives the 1st one—the revocation of the 2nd is based on a mistake of law (in some jx) o thus the will is ineffective under DRR, b/c the presumption is that the T would rather die under will 2 than no will  Revival:  Usually occurs when the 2nd will is revoked and there is a Q of whether the 1st will is revived—(3) diff state approaches o 1. English CL—automatic revival: 1st will is valid b/c a will does not truly take effect until the T’s death, meaning the 2nd never technically revoked the 1st o 2. Intent of T: The first will is legally revoked when the 2nd one is executed, but it is revived upon the revocation of the 2nd—if that’s the T’s intention  Can possibly be done orally  This is KS view (59-612) o 3. Min: the 1st revoked will can’t be revived unless it is reexecuted w/ the formalities  This is the WI view in Auburn o UPC: the 1st revoked will can be revived by revoking the 2nd will—if that’s the T’s intent   A prior will partially revoked by 2nd revoked will is revived unless it is evident that that is not T’s intent o Revocation by operation of law: Change in Family Circumstances  Divorce  Maj: divorce revokes any bequests in will that leaves prop to ex-spouse  Other states: there is the Maj. Presumption only when there has been a property settlement at time of divorce  UPC—divorce revokes any revocable appointment of property to ex-spouse or relative thereof o This applies to non-probate transfers as well as wills o Also revokes power of appointment and any nomination for that person to be representative of the estate  Marriage  If T marries after executing a will, most states will allow the spouse to take his intestate share unless it is clear the omission was intentional  If the omission is intentional the spouse usually has the option of taking from the statutory forced share  Birth of children  CL: Marriage followed by the birth of a child revokes any will prior to marriage—not many states follow this  Pretermitted child statutes—most states have statutes that says that a child born after the execution of the parent’s will, can take a share of the parent’s estate o Some statutes will give children born before the will was executed, a share o These statues revoke a parent’s will to the extent of the child’s statutory share Components of a will o Integration of wills  Allows all papers present at the time of execution and intended to be part of the will to actually be part of the will  Problems arise with actual intention o Republication by Codicil  Allows a will to be re-executed as of the date that a valid codicil is properly executed.  Upon execution, the will and the codicil become one  A codicil validly executed operates as a republication of the will no matter what defects may have existed in the execution of the will  When a 2nd will revokes a 1st will, a codicil to the 1st will can be deemed as re-executing the 1st will and replaces the 2nd o Incorporation by reference  A properly executed will may incorporate by reference into its provisions any doc not so executed and witnessed if it was in existence at the time of execution of the will and is identified by sufficient proof  Req’ts for the doctrine to apply  Valid will exists—executed after doc incorporated  Will must explicitly make reference to the doc in clear language  Party wanting doc to be admitted must prove that the doc in hand is the same one referred to  UPC recognizes this doc as well as almost all the states o Acts of independent significance  If a testamentary beneficiary is identified by an act that has a lifetime motive and significance unrelated to the testator’s will, any gift to the beneficiary will be upheld  If property designations are affected by a lifetime motive unrelated to the will they will still be upheld  EX: T leaves his mansion to A in his will but then moves to a shack—A will receive the shack and will not receive any diff in value o The intention to move was unrelated to the intention to give the house to the friend  A lifetime motive is one intended to benefit the grantor independent of the beneficiary  EX: leave the contents of my drawer to X. If there is a bunch of stuff in the drawer that typically isn’t in drawers, we need to look to the T’s intent  Contracts relating to a will o Contracts to make a will  Some states, K has to be in writing other states allow oral Ks  Oral Ks are generally enforceable when proved by clear and convincing evidence, the terms are fair, and the promisee can prove strict performance on his part  Some state allow promisee to sue for strict perf while other states just allow suits under quantum meruit o Contracts not to revoke a will  Generally arise w/ respect to the execution of a joint or mutual will by husband and wife—they make a K not to revoke the will  Joint will:  Executed by 2 people as the will of both—if not revoked, it will be probated twice  Brings up suggestion of K not to revoke  Mutual will  2 separate wills that contain reciprocal provisions  Party seeking to enforce the K has bop   UPC    A K to make a will or not to revoke may be established only by: o Provisions of will stating material provisions of the K o Express reference in will to K and extrinsic evidence proving the terms of the K o Writing signed by the decedent evidencing the K  Under UPC, a mutual or joint will doesn’t create a presumption of a K not to revoke Some ct have held that if H & W executes mutual wills and then the surviving spouse remarries, the children or 3P beneficiaries of the mutual will will take the position of creditors over the statutory rts of the new spouse—but other cts don’t follow this ruling (Putnam) KS (Maj)—says that kids would take as creditors over the spouse 5. Non-probate transfers/ will substitutes  Revocable trusts o Revocable inter vivos trust is the most flexible of all will substitutes b/c the donor can arrange the disposition of the property any way he wants o Typically, the donor (settler) transfers legal title in another person—the trustee. The settler retains the power to revoke, alter or amend the trust and the rt to the income from the trust during his lifetime o A trustee owes fiduciary duties to the beneficiaries—including loyalty and prudence in investments  If trustee breaches duties, he is personally liable to the beneficiaries o The beneficiaries have an equitable interest in the trust which a ct of equity can enforce against the trustee who has legal title o A trust is revocable only if the settler reserves the power to revoke  The trust can be amended to incorporate a provision allowing revocation o When the settler puts prop in a trust and reserves rt to amend and can live on income of trust, creditors can reach in and take money from the trust at settlor’s death  Public Policy—you can’t have an estate to live on but not to pay your debts w/  Assets that settler didn’t have control of can’t be reached by creditors at death Pour-over wills o Pour over wills of probate assets into inter vivos trust in order to merge testamentary estate and ins proceeds and other assets into a unified trust Revocable trusts in estate planning o Consequences during life of settler    The settler can be the trustee but he needs to appoint a successor trustee  Settlor can also name a 3P as trustee and he can remain cotrustee  If settler is happy w/ trustee’s performance, he can name another trustee to take over  B/c there is a retained power to revoke, trust income is taxable to the settler o Consequences at death of settler—avoidance of probate  When the trust is to end at settlers death, the beneficiary should be named succeeding trustee  Avoidance of probate—you may have trustee fees for a 3P trustee—but these will be less than the cost to probate and a lot less time to disburse property than it would to probate it  SOL—in probate, there’s a shortened SOL, but for a trust it’s the normal length  It is more difficult to set aside a revocable IV trust for lack of MC of UI than so in a will Life Insurance, Pension accts, Bank accts, and other POD arrangements o Life Ins  Many states: proceeds of LI policy are to be disposed in accordance w/ its provisions and the beneficiary, if authorized by the policy can designate a successor beneficiary to take upon his death  Not subject to creditors unless you make it payable to your estate  In most states a divorce revokes a will in favor of former spouse but does not revoke spouse as beneficiary under the life ins policy  UPC—divorce revokes the spouse as the beneficiary of the life ins K or any other K  Traditional rule: POD designations in Ks other than life ins Ks are invalid—b/c of the failure to comply w/ the statute of wills (SOW)  Change of beneficiary—in order to change you must go by the means in the K or it won’t be valid—  (3) exceptions that some cts recognize o 1) Ins co waives strict compliance and reissues a new certificate to the insured reflecting the change o 2) It goes beyond insured’s power to comply literally—ct of equity will step in and treat change as being made o 3) If insured has gone through the req’d procedured in K to change beneficiary but before certificate is reissued, T dies—ct of equity will act as if change was done  3P beneficiary Ks POD are similar to Ks that provide for disposition of prop at death and do not need to conform to SOW     EX: K to make will, inter vivos trust to reserve life estate, life ins policy These avoid the probate process PS agreements: upon death of one partner, his interest will pass to the other partner—rests in K law o Members of PS may provide w/out violating the SOW, that upon death, his interest in the PS goes to his widow—this isn’t invalid as attempted testamentary disposition  o Pensions  Federal law allows a POD beneficiary to be put on pensions, savings bond, 401(k), and retirement accts  Designation of theses don’t have to comply w/ the wills act b/c the are governed by K law  o Multiple party bank accts  Includes joint and survivor accts POD accts, savings acct (Totten Trust)  Joint tenancy acct: must be evaluated on its own facts  Evidence of lack of donative intent must relate back to the creation of the JT  Intent after the creation of the JT are significant as well to determine the true intention of the donor  Some courts have ruled that creating JT accts is conclusive on determining a rt of survivorship—evidence to the contrary is not admissible  Savings acct/ Totten Trust: D make deposits in savings acct in D’s name as trustee for A  O retains the rt to revoke by w/drawing funds at any time during life  The beneficiary may be revoked at any time and a new beneficiary named o UPC: authorized POD designations in all Ks  Unlike the law of wills, the UPC doesn’t require survivorship by POD beneficiaries of the K  Anti-lapse statute: When beneficiary is a close relative of the benefactor, the statute substitutes the issue of the predeceased beneficiary  Joint tenancy in RE o Popular method of avoiding the cost and time of probate o Upon death of one joint tenant, the other own the property free and clear o (3) important features  1. Joint tenants have equal interest and the interest created in the other can’t be destroyed by the transferor changing his mind   2. If one JT wants the his share of the prop to go to someone else upon death, he must destroy the J Tenancy before the death of the other person and convert it into a Tenancy in common  3. Creditor of JT can only seize his interest in the prop before his death. Diff Types of Gifts o General gift: a specific amt of $ payable from assets of estate o Specific gift: specific property—my jewelry o Residual gift: the rest of my estate…half of my estate—no specific amt Planning for incapacity o Durable power of atty  Useful in planning for incapacity  Unlike ordinary power of atty that terminates on the incapacity of the principal, a durable power of atty continues through the death of the principal  Durable powers must be created by a written instrument—and in some states notarized  Kinda like a trustee but…  Ceases when principal dies  Does not avoid probate  If agent dies, the power terminates unless a successor is named  Agent doesn’t own the prop  Financial durable power of atty:  Authorizes the agent to the principles prop in all respects o Directive regarding health care and disposition of body  Advance directives: living wills, health care proxies and hybrids  Living Will: contains directives on termination of med treatment o Doc provides that the signer’s life won’t be artificially prolonged when there is no expectation of recovery  Living power of atty for health care: agent makes decisions when principal is incompetent based on generalized directions  Disposition of the body  The uniform Anatomical gift act allow for the D to give his body to a hospital, med school or for transplants o The gift can be made by will or card the person carries around  6. Construction of wills  Mistaken or ambiguous language in wills o Traditional approach: No extrinsic evidence, no reformation o Plain Meaning Rule: plain meaning can’t be disturbed by the intro of extrinsic evidence that another meaning was intended o Ambiguity: then resorting to extrinsic evidence might have to be made  Latent Ambiguity: One which doesn’t appear on the face of the will but is disclosed by a collateral fact  Patent Ambiguity: one that appears on the face of the will  Whether an ambiguity is patent or latent can come down to who the reader is o Reformation: Correcting mistakes w/out the power to reform wills  If a mistake was made due to being misled by the scrivener’s error, extrinsic evidence is admissible to prove the intent of T  In some cases, ct have inserted words in the will to correct mistakes of scrivener’s  o Openly reforming wills for mistakes—times mistakes will be corrected  Cts may strike out a mistaken description  Cts can correct a mistaken belief about a family member by calling it an insane delusion  Cts can cure a mistake in the revocation of a will w/ dependent relative revocation  UPC—if a parent fails to provide for a living child b/c he thinks he’s dead, then the child will get an intestate share   Death of Beneficiary before testator o If a specific or general gift (devise) lapses—b/c the beneficiary dies, the gift falls into the residue of the estate o If the sole residuary devisee dies, then the devise will pass to the heirs intestate o Antilapse statutes; Changes CL (default rule)—if beneficiary dies and the B is closely related to D then the property might pass to B’s issue  Doesn’t apply if the T says that it doesn’t apply or if there is evidence in the will that T wouldn’t have wanted this—look at intent  KS—being a friend isn’t enough to trigger the statute—the predeceasing beneficiary has to be related w/in the 6th degree—it doesn’t matter if the stand in beneficiary is w/in the 6th degree  Why does relationship matter—probable intent of T o Under K law—devisee doesn’t have to outlive T—if devisee predeceases, then the property will go to the devisee’s heirs  Except POD bank accts—then the beneficiary has to survive the depositor o Joint Tenancy—the joint tenant that predeceases loses his interest— antilapse statute doesn’t apply o Class gifts  If the gift is to a class of people and one member dies, the rest will split the gift  Unless it is clear that the T wanted each class member to have only a specficified amt  Almost all states apply antilapse statute to class gifts Changes in property after execution of will o Ademption by extinction—specific devises and real and personal property are subject to this doctrine—a loss of a legacy—if T (for whatever reason) disposes of the specific prop during his lifetime  Generally, only applies to specific devises—a specific item of T’s property—not general gifts (a general benefit, like money)  Ways for T to avoid AE in JX following identity theory—  Use general terms—my car, my stock  Classify IV disposition as a change in form not substance  Construe the meaning of the will at the time of death not execution  Create exceptions  UPC abandoned the identity theory and went to the intent theory— creating a presumption against ademption  The party claiming ademption has the BOP o Stock splits and problem of increases  Stock splits: not ademption by extinction b/c it’s merely a change in form not substance o Satisfaction of general pecuniary bequests  The doctrine of satisfaction applies when the T makes a devise after the execution of a will  If the T is a parent of the beneficiary and after the will’s execution, and the T transfers property to B that is of the general nature of the bequests in the will—then there’s a rebuttable presumption that the gift is in satisfaction of the gift made in the will  This doesn’t apply to specifc gifts  May apply to residuary gifts  In all states the satisfaction of the debt depends on T’s intent o Exoneration of liens—CL rule  When a will makes a specific disposition of real or personal property that is subject to a mortgage that T is personally liable for, it is assumed that the T wanted the mortgage—just like other debts, pd out of the residue of his estate  Several states—including UPC have changed the CL rule that a devise passes subject to a mortgage  o Abatement  Usually turns on whether a gift is general or specific  Problem arises when the estate doesn’t have enough $ to pay debts + the devises  If the will doesn’t specify how the devises should be reduced to pay debt, then devises will be reduced in this order:     Risiduary devises General Specific o This plan is believed to be in accord w/ T’s intent 7. Protection of spouse and children  Rights of surviving spouse o Marital property systems  Community Property—H & W own all acquisitions from earnings after marriage in equal undivided shares and only has testamentary power over his ½ share  Separate Property—CL H & W own separately all property they acquire and whatever wages o RT of surviving spouse to support  Social Security  Pays retirement benefits to a worker and his surviving spouse. The system incorporates community property since the worker can’t shift the surviving benefit to a person other than the spouse  Private Pension Plans—  Funded by employers and goverened by ERISA. ERISA req’s that the spouse of the EE have survivorship rts—this ensures that a stream of income to surviving spouses  Homestead  Designed to secure the family home, free of creditor’s claim  KS (59-401)—what it includes o 160 acres rural or 1 are urban o Don’t get it free an clear of liens o The rest would pass as provided—the children would probably get  KS 5906a215—homestead allowances o The wife can elect to take 35K instead of home  This would probably result in the wife electing not to take under homestead—unless there’s a problem w/ creditors  Homestead is taken off of the estate—not part of NPE  Personal Property exemptions set-aside  Allow a survivivng spouse to set aside certain items of personal property up to 35K—including: clothes, furniture, and sometimes a car o Such property is free from creditors claims—and the D usually can’t deprive the spouse of such property Family allowances  Provide $ for maintenance and support of the surviving spouse and dependent children.  See exempt property above  Dower and curtesy  Dower entitles widow to life estate in 1/3 of husband’s qualifying land seised during marriage  In states that still have dower, the spouse can elect between dower or the statutory share—which is usually bigger o RT of surviving spouse to share of D’s property  The elective share  An elective or forced share statutes allow a spouse to take under the D’s will or renounce the will and take a fractional share of the estate o The traditional approach is a fixed fractional share o The modern approach is a sliding scale percentage dependant on the time married  KS follows this approach  When a spouse elects against the will, she is usually charged or credited w/ the value of all interests given her by the will. o If the amt of the bequest does not satisfy the elective share the dff must be made up by either pro-rata contribution or from the residuary estate  Property subject to elective share  Waiver  Parties may waive their rt to elect against the D’s estate in pre-nup agreements o KS--Augmented estate and the spouse’s elective share  The augmented estate is what the spouse can elect to take under based on a percentage the relates to the length of marriage(202)  The value of the augmented estate=sum of—(203)  The value of the D’s NPE o The NPE is reduced by funeral & admin expenses, homestead & family allowances and enforceable demands  The D’s nonprobate transfers to others  The D’s nonprobate transfers to spouse  The surviving spouses property and nonprobate transfers to others o RT of surviving spouse in community property  In community property states, the CP receives favorable tax treatment since upon death of D, the entire value of the prop gets stepped down basis for determining capital gains  W/ separate property only D’s interest gets stepped down treatment    KS is separate property  Putting survivor to an election o Migrating Couples and Multistate Property Holdings  Movable property—the law of the state where the couple acquired the prop governs  Marital rts are governed by the state domiciled at death o Spouse omitted from premarital will  A disinheritance clause in a will does not apply to a T’s spouse whom he marries AFTER the execution of the will w/out showing that the disinheritance is intentional RT of issue omitted from the will o Protection from intentional omission: In all states except LA, a child has no statutory protection against disinheritance from parents o Protection from unintentional omission:  Pretermission statutes: designed to prevent unintentional disinheritance of descendents  A child must be born after the making of a will in order to be a pretermitted child