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Trusts and Estates Outline Wills and Will Substitutes I. What property is the property of the probate estate? a. Probate Estateproperty that the decedent owns an interest in at their death that is subject to probate and distribution via intestacy. b. RestatementProbate Estatethe estate subject to administration under applicable laws relating to decedents estates. The probate estate consists of certain property owned by the decedent at death and property acquired by the decedents estate at or after the decedents death. i. Here, actual ownership, not ownership is substance, is required. Actual ownership must also be beneficial; non-beneficial ownership, such as that held by a trustee, is not sufficient. ii. Property in which the decedent owned an interest immediately before death is not included in the probate estate if the decedents interest expires upon death, such as property in which the decedent possessed a life estate or a joint tenancy. iii. Property included in the probate estate: 1. property in which the decedent has outright beneficial ownership, such as a fee simple interest in a home; 2. all of a spouses separate property and half of a spouses community property; 3. indefeasibly vested remainderbecause the interest does not expire on the death of the decedent, the future interest is part of the probate estate; 4. contingent remainders that do not expire on the death of the decedent become part of the probate estate because they do not expire on decedents death, and thus the decedents estate retains a future interest; 5. Life insurance policies are part of the decedents estate only if the decedent named his estate as beneficiary of the policy; 6. Estate trustwhere a decedent is an income beneficiary of a trust, and the corpus is payable to the decedents estate on the death of the decedent, the corpus is part of the probate estate; iv. Property not included in the probate estate: 1. life insurance policies payable to a beneficiary other than the decedents estate; 2. contingent remainders that expire on the death of the decedent; 3. property held in a joint tenancy; 4. property held by the decedent in non-beneficial ownership, such as where the decedent is a trustee of a trust; 5. Revocable trusta revocable trust is able to be revoked during the lifetime of the donor, and may be amended, modified, etcthe trust terms dictate the distribution of the trust property on death of the donor, and thus it is not included in the decedents probate estate as long as the decedent did not revoke the trust while alive. v. Property Acquired After Death: a decedents probate estate may sometimes include property that was acquired after the decedents death. 1. Dividends, interest, and rents earned by assets of the decedents probate estate become part of the probate estate. 2. Posthumously awarded bonuspart of the probate estate even though the decedent has no contractual right to the bonus. 3. Devise to the estate of a deceased personwhere another person devises property to the estate of another, that property becomes part of the decedents probate estate.

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II.

vi. Property acquired at the instant of deathincluded in the probate estate. 1. Ex=wrongful death recovery payable to decedents estate under a survival statute. c. The net probate estate is the probate estate after deduction for family, exempt property, and homestead allowances, claims against the estate (including funeral expenses and expenses of administration), and taxes for which the estate is liable. Subject to overriding claims and rights provided by applicable law, such as the right of the decedents surviving spouse to take an elective share or to elect other marital rights, the decedents net probate estate passes to the decedents heirs or devisees by intestate or testate succession. i. TaxesLiability for the decedents income taxes for the year of death and for the estates income taxes falls on the decedents probate estate, as do any other taxes owed by the decedent at death, such as federal gift taxes and local real estate taxes, and any other taxes incurred by the estate. ii. Family Allowancethe UPCs family allowance is designed to provide the surviving spouse and minor dependent children a reasonable allowance out of the estate for their maintenance during the period of administration; the family allowance is not chargeable against any benefit or share passing to the spouse or children by intestate succession, by elective share, or by will, unless the will provides otherwise. iii. Exempt propertyUPCs exempt property allowance protects certain property such as household furniture, automobiles, furnishings, appliances, and personal effects from the claims of creditors. iv. HomesteadThe UPCs homestead allowance grants a lump sum payment. Validity of Will Substitutes a. A will substitute is an arrangement respecting property or contract rights that is established during the donors life, under which i. The right to possession or enjoyment of the property or to a contractual payment shifts outside of probate to the donee at the donors death; and ii. Substantial lifetime rights of dominion, control, possession, or enjoyment are retained by the donor. b. To be valid, a will substitute need not comply with the statutory formalities required for a will. c. Property subject to a will substitute is not probate property at death because it is then treated as no longer owned by the donor. The traditional explanation for why a will substitute is not a will is that a will substitute transfers ownership during lifeit effects a present transfer of a non-possessory future interest or contract right, the time of possession or enjoyment being postponed until the donors death. i. Life insurancea life insurance policy is a third-party beneficiary contract; when used as a will substitute, the beneficiary designation in the policy makes a present donative transfer of a contract right to collect the proceeds of the policy on the insureds death; thus, the beneficiary designation is treated as conferring a contract right on the beneficiary. ii. Pension and employee benefits accountsthe beneficiary designations in these types of benefits make them a will substitute. iii. Joint tenancies and other forms of undivided ownership with the right of survivorship pass outside of probate to other tenants in equal, fractional shares. iv. Multiple party accountsif the account has a right of survivorship or payable on death clause, the balance on hand in the account at death passes outside probate to the survivor. v. POD and TOD arrangementsthe benefit here is that these types of designations operate to pay or transfer outside of probate to the designated beneficiary, but, unlike joint tenancies, ownership and control is not shared while the decedent is still alive.

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III.

Intestacy(ultimate default) even if a decedent has a will, if the will is no good then it is as if the decedent died without a will and thus probate estate passes via intestacy. a. Three levels of analysis: i. Questions of fact 1. Is there a marital agreement? UPC 2-213 Waiver of right to elect and of other rights. a. The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, partially or wholly, before or after marriage, by a written contract agreement, or waiver signed by the surviving spouse. b. A surviving spouses waiver is NOT ENFORCEABLE if the surviving spouse proves that: i. He or she did not execute the waiver voluntarily; ii. The waiver was unconscionable when it was executed and, before execution of the waiver, he 1. was not provided with a fair and reasonable disclosure of the property or financial obligations of the decedent; 2. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; 3. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent. c. An issue of Unconscionability of a waiver is for decision by the court as a matter of law. d. Unless it provides to the contrary, a waiver of all rights or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of any will executed before the waiver or property settlement. 2. Did the spouse/heir survive the decedent? a. Considerations i. Must survive decedent by at least 120 hours2-104an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedents heirs are determined accordingly. ii. Must surviveUPC 1-107Evidence of death or status 1. death occurs when an individual is determined to be dead; 2. has sustained either

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a. irreversible cessation of circulatory or respiratory functions, or b. Irreversible cessation of all functions of the entire brain, including the brain stem. A determination of death must be made in accordance with accepted medical standards. 3. Date and place of marriage? 4. Date and place of divorce/annulment? 5. Date and place of premarital agreement? 6. date, place, and birth of children a. birth b. non-marital c. prior marriage d. adoption ii. Questions of law 1. Survivorship; did the spouse/heir survive the decedent? 120 hours? 2. Validity of the marriage to decedent/ is the alleged spouse the decedents spouse? a. Also, here remember putative spouse i. Putative spouses are spouses who have cohabitated with each other and are not married in the 1. good faith belief that they were married ii. is a putative spouse until 1. knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. iii. A putative spouse acquires the rights conferred on a legal spouse, but a putative spouses rights do not supersede the rights of the legal spouse iv. If there is a legal spouse or other putative spouses, then the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice. b. and common law spousesonce a couple is married by common law marriage, that couple has to have a formal divorce in order to be treated as no longer married to one another. 3. Validity and impact of the premarital agreement? 2-213(d) 4. Relationship of the spouse to the children? UPC 2-114 a. An individual is the child of his or her natural parents, regardless of the parents marital status. b. An adopted individual is the child of his adopting parent or parents and not of his natural parents. c. An individual who is adopted by his or her stepparent (the spouse of the custodial parent) becomes part of the adopting parents family for inheritance purposes but also continues to be part of the family of the custodial natural parent. d. With respect to the noncustodial natural parent, the adopted individual and the individuals descendants continue to have a right of inheritance from and through that noncustodial natural parent, but that noncustodial natural

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parent and that noncustodial natural parents family do not have a right to inherit from or through the adopted individual. e. Neither natural parent can inherit from or through a child unless that natural parent has openly treated the child as their own and has not refused to support the child. f. An individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. g. A man is presumed to be the father of a child if i. He and the mother of the child are married when the child is born, or ii. He and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, etc 5. Are there surviving parents of the decedent? iii. Applying the statute b. Initial Provisions i. A decedent who dies without a valid will dies intestate. ii. A decedent who dies with a valid will that does not dispose of all of the decedents net probate estate dies partially intestate. iii. The decedents intestate estate, consisting of that part of the decedents net probate estate that is not disposed of by a valid will, passes at the decedents death to the decedents heirs as provided by statute. c. UPC 2-101 Intestate Estate i. Any part of a decedents estate not effectively disposed of by will passes by intestate succession to the decedents heirs as prescribed in the UPC, EXCEPT AS MODIFIED BY A DECEDENTS WILL. ii. A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or member of that class survives the decedent, the share of the decedents intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share. d. UPC 2-102 Share of Spouse i. The intestate share of a decedents surviving spouse is: 1. the entire estate if: a. no descendant or parent of the decedent survives the decedent (no parents, no kids); OR b. All of the decedents surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent (all kids common, all kids to spouse). 2. the first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent (no kids, parents alive) *least amount of tension; 3. the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedents surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent (blended, SS has kids from prior marriage, midground) *mid-tension, not as a great as (4); 4. The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedents surviving descendants are not descendants of the surviving

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spouse (blended family, divided loyalties, reserve most for kids; in CO, if any kids are minors, SS gets half of the estate without $100k first take) *Greatest tension. 5. *in all of the above cases, the lump sum must be understood in addition to the probate exemptions and allowances to which the surviving spouse is entitled under the UPC. e. Intestate Share of Heirs Other Than Surviving SpouseUPC 2-103 i. Rules Common to All Representation Statutes 1. Descendants get only what is available after surviving spouse gets the share to which they are entitled. 2. if decedent is survived by some or all of his/her children (first generation descendants) AND there are no grandchildren or later-generation descendants of a child of decedents who predeceased decedent, the entirety of decedents intestate estate is divided equally, i.e. per capita, among the surviving first generation descendants. And that is the end of the inquiry. Thus, in other words, one must look to the representation rules ONLY if a child of decedent predeceased him/her and that child left at least one surviving descendant in second, third, or lower generation to be his/her representative. 3. Only the highest generation member of a family strain may take. 4. A descendant who predeceases the decedent cannot be represented by his/her spouse; only children and grandchildren can do that. ii. 3 Methods 1. Strict Per Stirpesdistributes based on bloodlines rather than on the basis of generational equality. Thus, all persons receiving through their parent or grandparent equally split the portion to which that person was entitled. a. Procedure: i. Divide the property into as many equal shares as there are: 1. living children of the decedent, if any, and 2. Deceased children of the decedent, who leave descendants then living, i.e. are represented. ii. Divide at every generation, even if everyone in that generation is dead and is merely represented. iii. Distribute one share to each living member of that generation. 1. With respect to those bloodlines where a distribution is made, children and grandchildren of that child are cut off since the oldest member of the bloodline already received the bloodlines share. 2. Modern Per Stirpesthis rule will reach identical results if there is at least one child or grandchild or great-grandchild alive at the time of Ds death at each generation. However, where all members of a generation in a given bloodline are deceased at the time of distribution, than that generation should be skipped. a. Procedure: i. Number of shares: divide property into as many equal shares as there are: 1. Living members of the nearest generation of descendants then living; and 2. deceased members of that generation who leave descendants then living. b. Distribution: distribute one share to each living member of that generation per capita.

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3. Per Capita at Each Generationthis approach determines that number of shares at each generation. Each generation gets exactly the same as other persons within that generation. a. Procedure: i. Number of Shares: divide property into as many equal shares as there are: 1. living members of the nearest generation of descendants then living; and 2. Deceased members of that generation who leave descendants then living. ii. This determines the number of bloodlines. Each bloodline will get an equal amount, no matter how many grandchildren or greatgrandchildren there are in a given bloodline. b. Distribution: Distribute one share to each living member of that generation per capita. c. Excess: combine the remaining excess into a pot and divide the pot amongst the living descendants of the next generation in the same manner. f. Rearranging the EstateMADGALS i. MurderUPC 2-803Effect of Homicide on Intestate Succession 1. An intestate heir who feloniously and intentionally kills the decedent forfeits all benefits to the decedents intestate estate. The killer is treated as if he/she had disclaimed their share of the intestate estate. a. The determination of intentional can be made in a civil probate trial regardless of what transpired in the criminal case. b. A conviction in a criminal proceeding of intentional and felony murder of the decedent, conclusively establishes the person as the killer for the purposes of the civil proceeding. c. Whether or not a person is a slayer may be determined in a civil proceeding under the preponderance of the evidence standard rather than beyond a reasonable doubt. 2. the felonious and intentional killing of the decedent: a. revokes any revocable disposition or appointment of property made by the decedent to the killer in a governing instrument; b. renders the killer incapable to serve in any appointed fiduciary or representative capacity, including as trustee, representative, executor, or agent; c. severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship into equal tenancies in common. ii. Agreement between the partiesparties may agree to a distributional scheme different than that under the intestate laws. UPC 3-912 provides that 1. Competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent or the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The PR shall abide by the terms of the agreement and administer the estate subject to the rights of creditors, taxing authorities, costs of administration, etc iii. Disclaimeranalysis a. Distribute per representation statute

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b. Kill disclaimant open the gate c. Distribute to lineal descendants per representation statute 2. disclaimers are primarily tax driven; they help avoid multiple estate or gift transfer tax consequences if property is conveyed one generation at a time. Also, they are useful to allow heirs to avoid creditor-access to their share of decedents estate. A disclaimer used to evade creditors is not treated as a fraudulent conveyance because the disclaimant is considered dead and therefore his interest in the property never arises. However, a disclaimant may not avoid tax liens by disclaimer, and typically disclaimed assets are counted toward the eligibility requirements for Medicaid. 3. Two types of disclaimer a. UPC Disclaimercritical requirements i. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or at the time of the intestates death ii. Must be in writing or other record iii. Must declare the disclaimed interest iv. Must be signed by the disclaimant v. A disclaimer must be filed within 9 months of the decedents death vi. The disclaimed interest must pass without direction of the disclaimant, i.e. it must pass by operation of the intestacy laws or, if there is a will, by the terms of the will, and vii. The disclaimant may not have received any benefits from property disclaimed nor received consideration in money or moneys worth, directly or indirectly, from anyone in exchange for the disclaimer. b. IRS DisclaimerIRC 2518 i. If a person makes a qualified disclaimer with respect to any interest in property, the interest is treated as if the interest had never been transferred to the disclaimant. ii. Qualified disclaimer = an irrevocable and unqualified refusal by a person to accept an interest in property only if 1. the refusal is in writing 2. the writing is received by the transferor of the interest, his legal representative, or the holder of the legal title to the property to which the interest relates not later than 9 months of either a. the day on which the transfer is made; or b. the day on which such person attains age 21 3. the disclaimant has not accepted the interest or any of its benefits 4. as a result of the refusal, the interest passes without any direction on the part of the disclaimant and passes either a. to the spouse of the decedent, or b. to a person other than the disclaimant. iv. Gifta gift is an absolute and unconditional transfer which need not be repaid and does not diminish the donees share of inheritance from the decedents estate. This is the default unless the contesting parties can prove otherwise. 1. Requirements to be a gift: a. Gift must be made with donative intent: this element does not consider the donors motive for making the gift, but rather considers whether the donor

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intended to transfer an ownership interest gratuitously, as opposed to engaging in an exchange transaction or involuntary transfer. b. Effective transfer: in order to make an effective transfer, the donor must i. Have the intent to make the transfer; ii. Own the property being transferred; iii. Satisfy an applicable formalities for making the transfer (i.e. comply with the statute of frauds when making a land gift) iv. *Property law principle: donor may not make a transfer of an interest that is larger than the interest that the donor owns. c. Transfer must lack consideration: d. Present transfer: the donor may not make a transfer of property that the donor does not own or that does not exist. i. Doctrine of estoppel by deed: a purported transfer of land that the transferor does not own becomes enforceable and takes place automatically if the land is later acquired, but only if the deed represents to the grantee that title of a specified quality is being conveyed, which most warranty deeds do but most quitclaim deeds do not. e. Acceptance by the donee is required and is presumed. f. The forgiveness of a debt is a gift of property if it is made without consideration and with donative intent. v. Advancementa prepayment of some or all of the recipients share of the intestate estate. UPC 2-109property that the decedent gave during the decedents lifetime to an individual who, at the decedents death, is an heir is treated as an advancement only if 1. the decedent declared in a contemporaneous writing or the heir acknowledged in a writing that the gift is an advancement OR 2. the decedents contemporaneous writing or the heirs written acknowledgement otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedents estate. 3. If the recipient of the property fails to survive the decedent the property is not taken into account in computing the division and distribution of the decedents intestate estate, unless the decedents contemporaneous writing provides otherwise. 4. Calculation of shares = hotchpot method a. Step 1add the value of the advancements to the value of decedents probate estate. b. Step 2discern the surviving spouses intestate share of the hotchpot estate. c. Step3discern the descendants share of the hotchpot estate. d. Step 4decide the size of the advancements proportional to the size of that heirs share of the intestate estate. e. Step 5if the size of an heirs advancement is larger than that heirs share of the intestate estate, then that heir and their advancement is disregarded. vi. Loana loan is an asset of the decedents estate. The unpaid principal and interest on the loan will be set off against the borrowers intestate share. If the unpaid principal and interest exceed the borrowers share of the intestate estate, the borrower will be required to repay the amount of the excess to the estate or to those who receive the debt as a portion of their share of the inheritance.

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1. If a debtor of the estate fails to survive the decedent, then the debt owed by the decedent is not taken into account when computing the intestate share of the debtors descendants. vii. Simultaneous Deathwhen a decedent dies intestate and the person who would claim an intestate share dies before him or within the 120 hours after decedents death, the intestate heir is treated as predeceasing decedent. IV. Wills a. FormalitiesUPC 2-502 i. Will must be 1. In writingany reasonably permanent record is sufficient, but a tape recorded will or a purported will that is recorded on any electro-magnetic medium is insufficient. Furthermore, the medium must be one that allows the markings to be detected. 2. Signed by the testatorthe UPC does not specify where in the document the T must sign, but best practice would dictate that the T sign at the foot of the document. a. T should ordinarily sign before the witnesses since the signing by the witnesses is the final act of authentication; if the T signs above the witnesss signatures on the document then that raise the presumption that T signed first. i. Signature by mark or cross is sufficient; name need not be spelled correctly, and need not be legible. The crucial requirement is that it be done with intent of adopting the document as the Ts will. b. This requirement is also met if another person signs the will at the testators direction and in the conscious presence of the testator. The conscious presence test requires that the signing be done within the range of the testators senses such as hearing; the signing need not have occurred in the testators line of sight. 3. Signed by at least two individuals, each of whom signed the writing within a reasonable time after he or she witnessed either the signing of the will or the testators acknowledgement of that signature or acknowledgement of the will. a. Under this requirement, the testator may sign the will outside the presence of the witnesses if the testator later acknowledges to the witnesses that the signature is his or hers or that the document is his or her will. b. An acknowledgement need not be express, but may be inferred from the testators conduct. c. Conviction of a crime no longer renders a witness incompetent d. Mental Incompetency, whether from mental deficiency, extreme intoxication, or the influence of drugs, remains a ground of disqualification of a witness. e. The witnesses may be beneficiaries under the will (interested witnesses) f. Since the witness must qualify at the of execution, hence a subsequent change in status does not remedy the disqualification. ii. The UPC dispenses with the publication requirement; however, in states where publication is required or if it would be prudent practice to conform with the requirement, the requirement may be met by making an explicit signification such as This is my will; however, the requirement may also be met by the testators conduct, such as silence or acquiescence at someone elses suggestion that the document is the testators will. Furthermore, the publication requirement, when necessary, does not require that the T

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inform the witnesses of the contents of the will, but only that the document they are signing is the Ts will. b. Additional non-UPC formalities that may be present in other states i. Will must be signed by the testator at the foot or end of the document(Restatement) Testators signature at the end of the document unquestionably satisfies the signature requirement, and the Ts handwritten name in freestanding form at any other place on the document raises an inference that T signed the document. ii. Two or more competent, credible, or disinterested persons must iii. Witness 1. Ts signature or 2. Ts acknowledgement of a. Ts signature or b. Of the will itself 3. Who may be a witness? UPC 2-505an individual generally competent to be a witness may act as a witness to a will. a. The signing of a will by an interested witness does not invalidate the will or any provision of the will. iv. Witnesses sign 1. in Ts presenceconscious presence/line of sight? 2. in the presence of one anotherconscious presence/line of sight? 3. within a reasonable time after witnessing the signing or acknowledgementwhat is a reasonable time after witnessing T sign or acknowledge the will? c. Self-proving willsa self-proved will is a will for which the T and the witnesses have executed an affidavit before a notary public or similar officer detailing the procedures followed in the execution of Ts will. i. The effect of a self-proved will under the UPC is that where a will is self-proved, a conclusive presumption arises as to compliance with the signature requirements and a rebuttable presumption arises that all other requirements have been met (UPC 2-506). 1. The presumption is not conclusive if there is evidence that the signature was subject to fraud or forgery. ii. Contrast this with the attestation clausethe effect of the attestation clause without a selfproving affidavit is that where a will is not self-proved with an attestation clause, the testimony of at least one of the attesting witnesses is required in the case of a will contest. d. Formalities i. Ceremony should take place in a room free from distractions and should not be interrupted ii. Participants should include only the attorney, testator, witnesses and Notary Public iii. No family members should be present to avoid the presence of undue influence iv. All parties should be introduced to one another; no jokes or humorous statements should be made during the ceremony v. The Notary Public should administer an oath; Ts intent should be established by asking him questions demonstrating that the T understands the transaction, comprehends generally the nature and extent of the property to be disposed of, remembers who are the natural objects of his bounty and understands the nature and effect of the desired disposition; answers should be clear and audible vi. T should sign or initial the margin of each page leading to the signature page, read aloud the testamonium clause, then fill in the date and sign his name at the end of the will vii. The Notary Public should administer the oath to the witnesses;

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viii. The first witness should read aloud the attestation clause and write under the clause that the foregoing attestation clause has been read by us and is accurate and then place his initials immediately below this line ix. Announce the end of the execution x. Confirm testamentary intent by asking the T if he has any second thoughts or regrets about signing the will xi. T should be instructed as to the safekeeping of the will e. Additional steps if contest is expected i. T should be tested for mental capacity or a professional psychiatric evaluation should be obtained as evidence of the Ts level of competence ii. Videotape the ceremony; consider using a professional iii. Number of witnesses should be increased, and witnesses should be carefully chosen 1. older witnesses may be more credible 2. younger witnesses may have a better ability to recall and are more likely to be alive at the time of contest iv. the attorney should ask additional questions of the T, including details of his immediate family, business or profession and the extent of property owned v. the T and witnesses should execute a self-proving affidavit vi. prior wills that demonstrate a consistent desired plan of distribution should be saved, and inconsistent prior wills should be destroyed f. Legal Requirements of Attested Wills i. Requirement of Mental Capacity 1. To have testamentary capacity, a person must be of sound mind and at least 18 years old. 2. the test here can be remembered as POPI; was T able to know or hold enough information in her mind about a. the Property she owns and wishes to give away b. who the objects of her bounty are i. the natural objects of a Ts bounty include the Ts closest family members, who are not limited to blood relatives ii. for example, a Ts children would be considered their bounty iii. however, the T need not know the identity or location of remote relatives who are beyond her immediate family circle iv. a Ts bounty would include non-wed and non-traditional partners v. a will that favors persons who are not close family members or a will that favors family members disproportionately to their relationship to the T is not evidence that the T did not know and understand that natural objects of his bounty c. the fact that she is engaged in a plan to dispose of her property on her death d. the interrelationship of the previous three 3. A person who is mentally incapacitated part of the time but has lucid intervals during which he or she meets the standard for mental capacity can make a valid will. a. Look to whether the T satisfied the requirements for mental capacity at the time they executed the will 4. Insane delusion: an insane delusion is a belief that is so against the evidence and reason that it must be the product of derangement

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a. A belief resulting from a process of reasoning from existing facts is not an insane delusion, even though the reasoning is imperfect or the conclusion is illogical b. Mere eccentricity does not constitute an insane delusion c. An insane delusion is a belief to which the donor adheres against all evidence and reason d. It is not sufficient to establish that the testator was the victim of an insane delusion, but the evidence must go further and establish that the will itself was the product of that delusion, and that the testator devised his property in a way which, except for that delusion, he would not have done. ii. Testamentary intent: the decedent must intend the document to be a will or to become operative at the decedents death. 1. A clear, unambiguous expression of testamentary intent in the document raises a strong presumption that the document was executed was executed with testamentary intent. The presumption is rebuttable by clear and convincing evidence. a. Look to whether the testator attended normal social events, engaged in normal conversations, visited or talked with family members by telephone, etc 2. Testamentary intent can be established by extrinsic evidence or inferred from the document 3. look to a. language of the will i. a clear, unambiguous statement of intent in the document raises a strong presumption that the document was executed with the requisite intent that may only be rebutted by clear and convincing evidence b. whether the will was properly executed c. notary and witness testimony of knowledge of what the T was signing iii. If a donor is induced to make a donative transfer that the donor would not have otherwise made by undue influence, then the transfer may be set aside. 1. Undue influence requires the contestant to prove a. The existence and exertion of an influence b. The effective operation of that influence so as to subvert or overpower the testators mind at the time of the execution of the testament c. The execution of a testament which the maker would not have executed but for such influence 2. Influence is not undue unless the free agency of the testator was destroyed and the will produced expresses the wishes of the one exerting the influence. a. Unless the importunities or entreaties are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence. 3. Factors to consider a. The nature and type of relationship existing between the testator, the contestants and the party accused of exerting such influence b. The opportunities existing for the exertion of the type of influence or deception possessed or employed c. The circumstances surrounding the drafting and execution of the testament

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d. Whether there has been an habitual subjection of the testator to the control of another e. The state of the testators mind at the time of the execution of the testament f. The testators mental or physical incapacity to resist or the susceptibility of the testators mind to the type and extent of the influence exerted g. Words and acts of the testator h. Weakness of mind and body of the testator , whether produced by infirmities of age or by disease or otherwise i. Whether the testament executed is unnatural in its terms of disposition of property iv. Duress: if the donor is induced to make the transfer by the threat of 1. improper action by the donee or someone else and the 2. Donor otherwise would not have made the transfer. v. Fraud: a donor is induced to make a donative transfer as a result of fraud if fraudulent representations cause the donor not to make a donative transfer that the donor would otherwise have made and instead makes the donative transfer to someone else. Such a fraudulent representation may consist of a falsehood about the moral character of a person to whom the donor contemplates making a donative transfer, as a consequence of which the donative transfer is made to the person making the fraudulent representation. vi. Mistake: a mistake may cause a donative transfer to be made that otherwise would not have been made. 1. Mistake may be subject to reformation vii. Formal Testacy Proceedings; Burdens: UPC-3-407 1. Petitioners who seek to establish intestacy have the burden of showing death, venue, and heirship. 2. Proponents must show due execution 3. contestants must show lack of intent, capacity, undue influence, fraud, duress, mistake, or revocation 4. parties have ultimate burden of persuasion as to their issues, but petitioners have the ultimate burden of proof g. Holographic (Unattested) Willsthese wills allows the T to dispense with attestation entirely i. A holographic will is one that 1. contains the material portions (the who and the what) in the Ts own handwriting a. thus, immaterial parts of the will, such as the date or introductory wording are printed, typed, or stamped; i. This is the more modern alternative to the first generation statutes that mandated that to be valid as a holographic will, the entire will needed to be in Ts handwriting. b. under the surplusage theory, the portions of the document in the Ts handwriting are given effect as a holographic will if they make sense as a will standing alone, without regard to the portions of the document not in the Ts handwriting 2. the signature must be in the Ts own handwriting 3. the T executed the will with testamentary intent st ii. 1 Generation Statute: a holographic will is one that is entirely written, dated, and signed in Ts handwriting. iii. 2nd Generation statute: holographic will is one if the signature and the material provisions are in Ts handwriting. (basically, gift language had to be in Ts handwriting) h. Components of the Will

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i. Integrationwhat was in existence and present at the will ceremony? 1. To be treated as part of a will, a page or other writing must be present (in existence) when the will is executed and must be intended to be part of the will. a. Usually pages of a will are stapled or otherwise fastened; no physical connection is required; physical connection does support an inference that the physically connected pages or other writings were present at the time of execution and that they were intended to be part of the will. b. Internal coherence of the pages or writings raises an inference that the pages or other writings were present at the time of execution and that they were intended to be part of the will. i. Internal coherence is present if the pages or other writing appear to be part of single document; look for continuing sentences, sequential numbering, same color and weight of paper. ii. Incorporation by Referencethree requirements for IBR *only writings can be incorporated by reference 1. writing to be incorporated must be existence when the will is executed a. thus, the writing must exist, but need not be present when the will 2. the will must manifest an intent to incorporate the writing a. any manifestation of intent is sufficient, such as I incorporate [writing] by reference 3. the writing to be incorporated must be identified with reasonable certainty a. the will must contain a description that is sufficient to identify the writing and there must be an existing writing that reasonably corresponds to the description b. *a holographic will can incorporate a writing not in the Ts handwriting iii. Acts or Events of Independent Significancea will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the Ts death. The execution or revocation of another individuals will is such an event. 1. Look for a formula that determines who gets what independently of any postexecution intervention by the T for the purpose of changing who gets what. iv. Pour-over trust2-511a pour-over trust 1. is a provision in a will that adds property to an inter vivos trust or 2. funds a trust that was not funded during the testators lifetime but whose terms are in a trust instrument that was executed during the testators lifetime 3. A testamentary addition to a trust is valid even if the trust is amendable or revocable, or even if the trust was amended after the execution of the will. v. Memo at Death2-513 1. whether or not the provisions relating to holographic wills apply, 2. a testator may refer in his or her will to a separate document disposing of tangible personal property other than money 3. if the property is not otherwise specifically disposed of by will 4. the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty vi. Republication by Codicil 1. a will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testators intent(executing a codicil

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V.

is usually thought to have the effect of re-executing the will that it amends or supplements). i. Reducing the Likelihood of LitigationNo contest clauses i. UPC2-517Penalty Clause for Contest 1. a provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting the proceedings. ii. This provision only relates to proceedings that challenge the validity of the donative document; thus, proceedings to interpret an ambiguous document do not fall within the governance zone of no-contest clauses. iii. Probable cause exists when, at the time of instituting there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful. 1. one factor that bears on probable cause is whether the beneficiary relied on the advice of independent legal counsel sought in good faith after full disclosure of all the facts iv. no contest clauses should be construed to have been violated regardless of whether the action is subsequently withdrawn immediately after its institution, prior to a hearing, at the trial, or any time thereafter v. a restraint otherwise valid under the rule stated in this section is violated by voluntary conduct of the beneficiary that amounts to an indirect challenge 1. look to whether a. beneficiary aids or instigates another person in that persons challenge attempt to contest the will b. an agreement giving part of the beneficiarys devise in exchange for the will challenge Revoking the donative document a. Revocation by subsequent instrumentin order for revocation by subsequent will to be effective, the subsequent will itself must be valid; if there is a defect in execution, the defect may be excused as harmless error; the term will includes a codicil, and a holographic will may revoke a formal, attested will. i. A will or any part of a will may be revoked by executing a subsequent will that revokes the previous will or part expressly or ii. By inconsistency 1. if the subsequent will is inconsistent as to a portion of the Ts property, then it is rebuttably presumed the earlier will remains in force as to everything else and the new document/will is effective as to the stated property; in essence then, both wills are effectively read together a. 2. if the later will is WHOLLY inconsistent, such as by disposing of all of the Ts property, then it is rebuttably presumed the prior will is revoked in its entirety and is replaced by the newer will b. Revocation by Act i. A will or any part thereof is revoked 1. by performing a revocatory act on the will if a. the T performed the revocatory act with the intent to revoke or i. an examination of Ts intent may involve an examination of extrinsic evidence

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b. if another performed the revocatory act on the will by the Ts direction and in the conscious presence of the T (T must still have intent) 2. Revocatory act on the will includes burning, tearing, cancelling, obliterating, or destroying the will or any part of it. a. Duplicate willsif the testator executed more than one copy of the same will, each duplicate is considered the Ts will, and a revocatory act on one copy revokes all copies. T need not perform a revocatory act on all duplicates. i. Performing the act on another document or on an unexecuted copy of the will is insufficient. b. Sufficiency of the actan insignificant act, such as a small tear or burn, is sufficient as long as the evidence establishes that the T performed the act with the intent to revoke. 3. Estate of Strong: where a last will and testament, after its execution, is retained by the T and cannot be found upon his death, it is the well-settled rule that it will be presumed to have been destroyed and thus revoked. This presumption is subject to rebuttal by circumstances tending to show a contrary conclusion, and that the burden is on the party seeking to have the will probated to prove that the will was unrevoked at the Ts death. a. Factors to consider in rebuttal of the presumption i. Evidence as to statements from the T that he did not intend to revoke the will ii. Evidence that he entertained a kind and loving attitude toward the proposed beneficiary of the will up to the time of death iii. Evidence of other individuals access to the will 1. where there is evidence that others had access to the will, the presumption is less strong. 4. the revocatory act need not touch the any of the words on the will ii. if a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the T intended the subsequent will to replace rather than supplement the previous will iii. the T is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the Ts estate; if this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative iv. T is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the Ts estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the Ts death to the extent they are not inconsistent. c. Revocation by Operation of Law i. 2-508 does not provide for revocation by a change in circumstances except in two situations 1. homicidekiller forfeits all benefits and is deemed to disclaim his interest

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VI.

a. Intentional and felonious killing revokes and revocable disposition of property, conference of nongeneral or general power of appointment, or nomination of the killer to serve in any representative or fiduciary capacity. 2. Divorcethe ex-spouse and all her/his family members are deemed to disclaim and predecease. a. Divorce or annulment revokes any revocable disposition of property, provision in a governing instrument conferring a general power of appointment on the spouse or the relative, and nomination in a governing instrument to serve in any representative capacity. b. These provisions are revived if the former spouse and T remarry. c. *T may provide for ex-spouse and relatives in will regardless of divorce and avoid the effect of 2-804. d. Furthermore, any revocable provision in favor of a former spouse or relative of the former spouse in a will substitute is revoked upon dissolution of marriage. e. Divorce severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests into equal tenancies in common f. Eggelhoff: for ERISA benefits to be revoked on divorce, T must change the beneficiary designation because UPC 2-804 is preempted by the ERISA statute; 401(k) plans are the same, IRAs are not. Revival of revoked wills2-509 a. If a subsequent will (#2) that wholly revoked a previous will (#1) is thereafter revoked by a revocatory act, the previous will remains revoked unless it is revived. i. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the Ts contemporary or subsequent declarations that the T intended the previous will to take effect as executed. ii. Comment: if will #2 wholly revoked will #1, the revocation of will #2 does not revive will #1 unless it is evident from the circumstances of the revocation of will #2 or from the Ts contemporary or subsequent declarations that the T intended will #1 to take effect as executed. b. If a subsequent will that partly revoked a previous will is thereafter revoked by revocatory act, a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation that of the subsequent will or from the Ts contemporary or subsequent declarations that the T did not intend the revoked part to take effect as executed. i. Where T revokes will #1 by executing will #2 and subsequently revokes #2 by executing will #3, will #1 remains revoked except to the extent that Will #3 shows an intent to have will #1 effective. c. A will that was revoked by a later will is revived if the T i. Re-executed the previously revoked will ii. Executed a codicil indicating an intent to revive the previously revoked will iii. Revoked the revoking will by act intending to revive the previously revoked will iv. Revoked the revoking will by another, later will whose terms indicate an intent to revive the previously revoked will d. A will that was revoked by act is revived if the T i. Re-executed the will ii. Executed a codicil indicating an intent to revive the previously revoked will, or iii. Performed an act on the will that clearly and convincingly demonstrates an intent to reverse the revocation

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e. A testamentary provision that was revoked by dissolution of the Ts marriage is revived if i. The T remarried the former spouse ii. Re-executed the will, or iii. Executed a codicil indicating an intent to revive the previously revoked provision, or iv. The dissolution of the marriage is nullified. DRR/Ineffective Revocation a. DRR treats a revocation as presumptively ineffective in specified circumstances. Such circumstances may include i. Revocation is presumptively ineffective if a T revokes a later will by revocatory act in a failed effort to revive an earlier will ii. A revocation is presumptively ineffective if a T revokes his first will by revocatory act in a failed attempt to replace the first will with a replacement will 1. but, maybe T executed enough of the replacement will that the replacement will could survive under the harmless error rule 2. also, in order for the doctrine to apply here, there must be enough evidence of the Ts dispositive objective must be provable iii. partial revocation coupled with an attempt to insert unattested languageDRR is applicable here and the revocation is presumptively ineffective because the T revoked in an attempt to achieve a plan that fails under applicable law 1. the presumption is rebutted if allowing it to remain in effect would be more consistent with the Ts probable intention a. if the person who would take the revoked devise if the revocation is rendered ineffective is the T would probably want the revocation to remain in effect; the T might also prefer the revocation to remain in effect if the persons who would take the revoked devise are closely related to the intended devisee b. T would also want the revocation to remain in effect if the Ts relationship with the original devisee had deteriorated, so that his or her dominant motive was to deprive the original devisee of the property c. The easiest case for the application of the doctrine of DRR is one in which the T attempted to increase the original amount; in this case, T would probably want the revocation to be ineffective because rather than revoke the original devise, the T was adding to it d. Where T attempted to decrease, a reduction of more than 50% would tend to rebut the presumption and allow the revocation to remain in effect; a reduction of less than 50%, the presumption is likely not rebutted e. DRR may be applied when a later will that expressly revoked an earlier will contains one or more dispositive provisions that fail under applicable law; the revocation of the earlier will is presumptively ineffective to the extent necessary to give effect to the dispositive provision in the earlier will that the failed dispositive provision in the later will replaced f. A revocation is presumptively ineffective if a T revokes a will mistakenly thinking that the pattern of distribution under intestacy carriers out his or her intention

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INTERPRETING THE WILLthe words in the will have great significance; now what do the words mean? I. Interpretive Hierarchy a. If the will is clear, then there is no need to interpret the will any further; the next step is applying its provisions b. If the will is not clear, then the first thing to look to is the Ts intent; for this inquiry, almost any evidence is allowed provided that it is admissible with the applicable rules of evidence c. Statutory rules of construction2-600s i. 2-601the rules of construction apply unless a contrary intention of the T can be found ii. 2-603a devise to a devisee who is included in the bloodline of the Ds grandparents 1. If a devisee fails to survive the T and is a grandparent, a descendant of a grandparent, or a stepchild of either the T or the donor of a power of appointment exercised by the Ts will, the following apply a. If the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisees surviving descendants and the surviving descendants take by representation b. If the devise is in the form of a class gift other than a devise to multigenerational family groups like heirs, kin, issue, relatives, or family, a substitute gift is created in the surviving descendants of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the T passes to the surviving devisees and the surviving descendants of the deceased devisees. 2. In order for lapse protection to apply, the gift must be made to the Ts grandparents, descendants of the Ts grandparents, or the Ts stepchildren. a. Stepchildren: note the definition of stepchildren under 2-603 includes children of the Ds former spouse; however, anti-lapse protection does not apply to a deceased stepchilds devise if that devise was revoked by section 2-804. 3. The substitute gifts provided for are to the deceased devisees descendants. 4. 2-603 is limited to wills, and does not apply to will substitutes such as life insurance policies, retirement plans, or TOD accounts. 5. 2-603 adopts the position that mere words of survivorship do not by themselves in the absence of additional evidence establish a contrary intention necessary to defeat anti-lapse protection. a. Thus, where the will provides to A if A survives me, anti-lapse protection will apply to create a substitute gift in As descendants provided that A is a protected devisee and left descendants b. Where the will provides to the survivor of A or B, anti-lapse protection probably still applies 6. 2-603 provides that a substitute gift under the anti-lapse statute is superseded if the Ts will expressly provides for its own alternative devisee and if that alternative devisee is entitled to take under the will iii. 2-604a general or specific devise that fails for any reason becomes part of the residue except as provided in the anti-lapse statute

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iv. 2-605if a T executes a will that specifically devises securities the devise includes additional securities owned by the T at death to the extent that the additional securities were acquired by the T after the will was executed as a result of the Ts ownership of the described securities and are securities of any of the following types: 1. securities of the same organization acquired by reason of action initiated by the organization or any successor, related, or acquiring organization 2. securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization 3. securities of the same organization acquired as a result of a plan of reinvestment v. 2-606Nonademption of specific devises 1. a specific devisee has a right to specifically devised property and to a. any balance of the purchase price owed by a purchaser at the time of the Ts death by sale of the property b. any amount of a condemnation award for the taking of the property unpaid at death c. any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property d. any property owned by the T at death and acquired as a result of foreclosure, or obtained in lieu off foreclosure, of the security interest for a specifically devised obligation e. any real property or tangible personal property owned by the T at death which the T acquired as a replacement for specifically devised real property or tangible personal property f. IF NOT Covered by the above, a pecuniary devise equal to the value as of its date of disposition of other specifically devised property disposed of during the Ts lifetime but only to the extent it is established that ademption would be inconsistent with the Ts manifested plan of distribution or that at the time the will was made, the date of disposition or otherwise, the T did not intend ademption of the devise 1. under this section, the burden of proof is on the devisee to establish that the facts and circumstances indicate that ademption of the devise was not intended by the T or that ademption of the devise is inconsistent with the Ts manifested plan of distribution ii. The UPC codifies the intent theory of ademption, whereby the devise fails unless the evidence establishes that the failure would be inconsistent with the intent of the T. iii. This is in contrast with the identity theory of ademption, whereby if the specifically devised property is not in the Ts estate at death, then the devisee is entitled to nothing. 2. if specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. vi. Non-exoneration

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II.

III.

IV.

1. A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts. vii. 2-609Ademption by Satisfaction 1. Property that a T gave in his lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if a. The will provides for deduction of the gift b. The T declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or c. The devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise d. Constructional preferences/general theories of law i. Construction that is more in accord with the donors general dispositive plan than other plausible constructions ii. Construction that renders the document more effective than other plausible constructions, including the construction that favors completeness of disposition and the one that avoids illegality iii. Construction that favors family members over non-family members, and that favors closer family members over more distant family members, and the construction that does not disinherit a line of descent iv. Construction that gives more favorable tax consequences v. Construction that accords with Ts contractual obligations vi. Construction more in accord with public policy than others e. Finally, if the devise fails for any reason, then the devise goes to the residuary or passes under intestacy, depending on whether the devise is general or specific (goes to residuary) or a residuary devise (goes to intestacy) Mistake a. A donative document, though unambiguous, may be reformed to conform to the text to the donors intention if it is established by clear and convincing evidence that a mistake of fact or law affected specific terms of the document and what the donors actual intention was. Abatement of Devises a. 3-902shares of distributees abate in the following order i. Property passing by intestate succession ii. Residuary gifts iii. General devises iv. Specific devises v. 6-102to the extent the estate is insufficient to pay the debts of the decedent, a transferee of a non-probate transfer is subject to claims against the decedents probate estate. b. Tax apportionmentin effect, each transfer is reduced by its fair share of the tax rather than being subsidized by lower ranking gifts. State and federal governments include many non-probate transfers in a testators taxable estate, especially life insurance proceeds and recipients under powers of appointment Classification of Devises a. Specific devise = a devise of a specific piece or pieces of property that are owned by the T when they are devised; look for a devise of my [property] b. General devise = a devise of property that comes out of the estate, and any pecuniary devise c. Residuary devise = a devise of the residue

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Statutory Protections for a Surviving Spouse and Pre-termitted Heirs I. Elective Share for a surviving spouse a. 2-202the surviving spouse has a right of election equal to the value of the elective share percentage of the augmented estate, determined by the length of time the spouse and the D were married to each other, according to the following i. Less than one year = supplemental amount only ii. 1 year = 3%, and increasing by 3% every year until year 10; and year 10 (30%), the intervals begin to go up by 4% per year, and continue to go until year 15 (50%) b. 2-203composition of augmented estate i. The value of the augmented estate consists of the sum of the values of all property that constitute the Ds net probate estate, the Ds nonprobate transfers to others, the Ds nonprobate transfers to the SS, and the surviving spouses property and nonprobate transfers to others. c. 2-204Ds net probate estate i. The value of the augmented estate includes the value of the Ds probate estate reduced by funeral and administration expenses, homestead, family, and exempt property allowances, and enforceable claims d. 2-205Ds nonprobate transfers to others i. The value of the augmented estate includes the value of the Ds nonprobate transfers to others of any of the following types 1. property owned in substance by the D immediately before death that passed outside the probate estate, including a. property over which the D alone, immediately before death, held a presently exercisable general power of appointment i. (a presently exercisable power of appointment is a means of power to create a present or future interest in himself, creditors, estate, or creditors of his estate, and includes the power to revoke or invade the principal of a trust or other property arrangement) b. Ds fractional interest in property held by the D in joint tenancy with the right of survivorship c. The Ds ownership in property or accounts held in POD, TOD, or coownership registration with the right of survivorship d. Proceeds of insurance if the D owned the insurance policy and to the extent the D alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds 2. Property transferred in any of the following forms during marriage a. Any irrevocable transfer in which the D retained a right to the possession, enjoyment, or the income from the property if and to the extent the Ds right terminated at or continued beyond death b. Any transfer in which the D created a power over income or property, exercisable by the D alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of D, Ds estate, or creditors of Ds estate 3. property that passed during marriage and during the two year period next preceding the Ds death as a result of a transfer by the D if the transfer was of any of the types a. any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate if the right, interest, or power had not terminated until the Ds death

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b. any transfer of or relating to an insurance policy on the life of the D if the proceeds would have been included in the augmented estate had the transfer not occurred c. any transfer of property, to the extent otherwise not included in the augmented estate, made to or for the benefit of a person other than the Ds surviving spouse. The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either the of the two years exceeded $10,000 e. 2-206Ds nonprobate transfers to the surviving spouse i. The value of the augmented estate includes the value of the Ds nonprobate to the Ds surviving spouse, which consist of all property that passed outside probate at the Ds death from the D to the surviving spouse by reason of the Ds death, including 1. Ds interest in property held in joint tenancy with the right of survivorship to the extent the interest passed to the SS at Ds death 2. the Ds ownership interest in property or accounts held in co-ownership registration with the right of survivorship to the extent that Ds interest passed to the SS at Ds death 3. all other property that would have been included in the augmented estate had it passed to or for he benefit of a person other than the Ds spouse, surviving spouse, the D, or the Ds creditors, estate, or estate creditors. f. Surviving Spouses property and nonprobate transfers to others i. The value of the augmented estate includes the value of 1. property that was owned by the Ds SS at the Ds death, including a. the SSs fractional interest in property held in joint tenancy with the right of survivorship b. the SSs ownership interest in property or accounts held in co-ownership registration with the right of survivorship c. property that passed to the SS be reason of the Ds death 2. property that would have been included in the SSs nonprobate transfers to others g. 2-209sources from which elective share is payable i. In a proceeding for an elective share, the following are applied first to satisfy the elective share amount and to reduce or eliminate any contributions due from the Ds probate estate and recipients of the Ds nonprobate transfers to others 1. amounts included in the augmented estate which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate and 2. Amounts included in 2-207 up to the applicable percentage thereof. The applicable percentage thereof is twice the elective share percentage set forth in the schedule in section 2-202(a) appropriate to the length of time the spouse and D were married to each other h. Calculation Procedure i. Determine the elective share percentage under 2-202(a) ii. Determine the amount of the augmented estate under 2-203 1. net probate estate [plus] 2. decedents nonprobate transfers to others (reclaimable transfers) [plus] 3. Ds nonprobate transfers to surviving spouse [plus] 4. surviving spouses property and nonprobate transfers to others (reclaimable transfers)

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III.

5. = Ds augmented estate iii. Determine elective share amount under 2-202(a) iv. Determine sources of payment for elective share amount 1. 2-209 elective share amount [minus] a. Property passing to spouse under the will or by intestacy [minus] b. Property passing to spouse via nonprobate transfers [minus] c. Spouses property and reclaimable transfers x 2 d. = liability of Ds estate and recipients of reclaimable transfers Pretermitted Spousal share a. 2-301if a Ts SS married the T after the T executed his will, the SS is entitled to receive, as an intestate share, no less than the value of the estate she would have received if the T had died intestate as to that portion of the Ts estate, if any, that neither is devised to a child of the T who was born before the T married the SS and who is not a child of the SS nor is devised to a descendant of such a child or passes under 2-603 or 2-604 to such a child or to a descendant of such a child, unless i. It appears from the will or other evidence that the will was made in contemplation of the Ts marriage to the SS ii. The will expresses the intention that it is to be effective notwithstanding any subsequent marriage, or iii. The T provided for the spouse by transfer outside the will and with the intent that the transfer be in lieu of a testamentary provision is show by the Ts statements or is reasonably inferred from the amount of the transfer or other evidence. b. In satisfying this provision, devises made by the will to SS are applied first, and other devises, other than a devise to a child of the T who was born before the T married the SS and who is not a child of the SS or a devise or substitute gift. Pretermitted heir share a. 2-302Omitted children i. If a T fails to provide in his will for any of his children born after the execution of the will, the omitted after-born or after adopted child receives a share in the estate as follows 1. if the T had no children living when he executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the T died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the T (to satisfy this share, devises made by the will abate under 3902) 2. if the T had one or more children living when he executed the will and the will devised property or an interest in property to one or more of the then-living children, an omitted or after born or after adopted child is entitled to share in the Ts estate as follows a. the portion of the Ts estate that the omitted child is entitled to share is limited to devises made to the Ts then-living children under the will b. the omitted after-born or after-adopted child is entitled to receive the share of the Ts estate, as limited in (a), that the child would have received had the T included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to the child c. to the extent feasible, the interest granted and omitted after-born or afteradopted child must be of the same character, whether equitable or legal,

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present or future, as that devised to the Ts then-living children under the will d. in satisfying this above share, devises to the Ts children who were living when the will was executed abate ratably. ii. This does not apply if 1. it appears from the will that the omission was intentional, or 2. the T provided for the omitted child by a transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the Ts statements or is reasonably inferred from the amount of the transfer or other devise iii. if at the time of execution of the will the T fails to provide for a living child solely because he believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born child Ethical Matters and Avoiding Malpractice I. Confidentiality of communications a. Generally, in a joint representation, all communications between joint clients and the attorney are confidential as to the outside world but not confidential as between joint clients b. Where a joint client expresses information to the lawyer that the client wishes to keep from the other joint client embroils the lawyer in a dilemma, in which there are three different options i. Taking no action because the communication is to trivial matters that are not substantial to representation of the other client ii. Encouraging the communicating joint client to provide the information to the other client or to allow the lawyer to do so iii. Withdrawing from the representation II. Conflict of Interestgenerally, given the non-adversarial nature of an estate and trusts practice, in appropriate cases the representation of multiple clients should be positively encouraged; however, a lawyer is almost always precluded from representing both parties to a pre-nuptial agreement or other matter with respect to which their interests directly conflict to a substantial degree, except in the rare case where it otherwise appears appropriate for the lawyer to do so III. Representing a disabled clientthe lawyer for a client who appears to be disabled may have implied authority to make disclosures and take actions that the lawyer reasonably believes are in accordance with the clients wishes that were clearly stated during his or her competency; it is not improper for a lawyer to take actions on behalf of an apparently disabled client that the lawyer reasonably believes are in the best interests of the client Planning for Incapacity I. Medical durable power of attorney a. MDPOA is a document in which one gives to another the power to make decisions on her behalf regarding medical care if she is unable to make those decisions herself i. The difference between a MDPOA and a living will is that a living will instructs your doctor to stop artificial life support if you should suffer from a terminal illness, whereas a MDPOA allows the agent to make many more health care decisions, including a wish to end life support. b. Preparing an MDPOA i. Agent must be 1. at least 18 years old 2. mentally competent 3. willing to serve as agent

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II.

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Living willsa living will is a document that expresses your wish to have useless treatment stopped or to be disconnected from artificial life support; a living will is honored only if the testator is terminally ill a. Limitations i. Does not go into effect until two doctors state in writing that you are terminally ill ii. The living will does not keep you from being fed if you are able to swallow food or fluids iii. Some conditions such as an irreversible coma may not be considered a terminable condition b. Preparing a living will i. Must sign before two witnesses 1. may not be fellow patients or employees of the facility where you receive health care, doctor, any of doctors employees, creditors, or anyone who will inherit property or money from testators death ii. may be cancelled by 1. destroying all copies or revocation through signed statement Medicaid overview a. To qualify i. Must be 65 or older, unless you are receiving social security disability and you meet the SSI definition ii. Need long term care iii. Have monthly income of no greater than $1,692 1. social security income, pensions, interest, veterans benefits, annuity payments, dividends and Medicare B premium are considered income iv. have assets of no more than $2,000 1. Medicaid exempt resources a. $2,000 cash b. Home, including property where home is located c. Property that you co-own if the property is the co-owners principal place of residence d. Property that can not be sold for 2/3 of the actual value e. Household goods and personal effects up to $2,000 worth f. One wedding and one engagement ring g. Prosthetic devices, wheelchairs, etc h. One vehicle valued at no more than $4,500 i. Burial space j. Life insurance with a face value of $1,500 or less b. Medicaid disqualifying trusts under COBRAfor purposes of determining whether an individual is eligible for Medicaid, his available assets will include the maximum amount of property held by any inter vivos trust established by him or his spouse that may be distributed to him at the discretion of the trustee.