Wills Trusts Estates Outline PDF

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Wills Trusts Estates Outline...

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B06846401, Florida. Class 1: Introduction to wealth transfer I.

Freedom of disposition—The Constitutionally protected right of a testator to dispose of his/her property on terms that they choose. Does NOT mean you have a right to receive!

II. 1974, Ohio—GENERAL RULE: A condition precedent requiring a devisee to marry within a particular faith is a reasonable restriction that does not violate public policy or the Fourteenth Amendment of the United States Constitution because it regulates a choice, not the actual faith of the devisee. III. 1987 Supreme Court—GENERAL RULE: S.C. held assumption that the right to transmit property at death is a separate, identifiable stick in the bundle of sticks known as property law. If this right is taken away, just compensation must be paid. IV.

2007, New York—GENERAL RULE: Majority of states hold that the law of the domicile of the testator at his or her death applies to all questions of a will’s construction

V. GENERAL RULE of Situs: Generally speaking, the law of the state where the decedent was domiciled at death governs the disposition of personal property and the law of the state where the decedent’s real property is located governs the disposition of real property. Class 2: Probate and Professional Responsibility I.

Non-Probate property— Property that passes outside of probate by a way of will substitute. 1. Inter Vivos Trust—passes in terms of the trust thereby avoiding probate administration. 2. Life Insurance 3. Pay on Death and Transfer on Death Contracts 4. Joint Tenancy—No interest passes to survivor at time of descendant’s death, simply the survivor already owns the whole property now free of the decedents participation. All survivor has to do is file a death certificate with local registrar of deeds.

II. Probate Property—Property that passes under the decedents will. 1. First step: is to appoint a personal representative to oversee the winding up of the decedents affairs. Personal representative is fiduciary who collects and inventories the property. 2. When a person dies testate (with a will) they are said to devise real property to devisees and to bequeath personal property to legatees. 3. If the will does not name a personal representative (also known as an executor), or the named personal representative cannot or will not serve, or the decedent died intestate, the court will name a personal representative who is generally called an administrator. The administrator is usually picked from a statutory list of persons who are given preference. III. Probate Administration in Florida-- There are two types of probate administration under Florida law: 1. Summary administration—Florida Statute §735.201 Can only be used when the total value of decedent’s assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. In this type of administration, NO personal representative is appointed! A. Steps of Summary Administration: (1) Preparation of Documents (2) Publication of the notice to creditors (3) Determination of homestead (if applicable) (4) Distribution of the funds to creditors and beneficiaries per court order. 2. Formal administration— Florida Statute §733.301—Most Common-- used for all other estates or whenever a personal representative is required for other purposes (since summary administration does not appoint one). A. Steps for Formal Administrating: (1) Preparation of the Documents (2) Appointment of personal Representatives

B06846401, Florida. (3) (4) (5) (6) (7)

Publication of notice to creditors Filing of the inventory of decedents estate Determination of homestead (if applicable) Distribution of the assets to creditors and beneficiaries Closing of the estate

IV. Florida’s Non-Claim Statute Florida Statute §733.702 of Florida Statutes provides that if a claim against a decedent’s estate is not filed within the allowed period, 30 days, the claim is unenforceable. The statute also provides that a creditor can try to get an extension from the probate court if they find grounds of fraud, estoppel, or insufficient notice of the claims period. V. Professional Responsibility 1. 1994, New Hampshire—GENERAL RULE: An attorney who drafts a will owes a duty to identified intended beneficiaries of the will who may enforce the attorney’s contract with the testator as third-party beneficiaries. (only still allowable in 9 states—Virginia is one!) 2. The Privity Defense—The lack of privity between the drafter and the intended beneficiary bars a malpractice action by the beneficiary. FLORIDA REJECTS THIS DEFENSE Class 3: Intestacy: An Estate Plan by Default I.

Intestacy—When a person dies without a valid will. The property of those who die intestate is governed by the default rules of intestacy of their state (also known as the statute of descent and distribution).

II. Florida’s Intestacy Law Overview: 1. Florida Statute §732.107: When assets pass by intestacy, the state of Florida determines who receives the decedent’s property, in what order, and in what shares. Property will escheat to the state of Florida (that is, the state will receive the property) if the decedent has no heirs under the statute who can be located. 2. Florida Statute §732.102: Generally, the first beneficiary is an existing (surviving) spouse. A. Spouse’s share of intestate estate: (1) If there is no surviving descendant of the decedent (example: children), the entire intestate estate goes to spouse. (2) If the decedent is survived by one or more descendants (children), all related to the surviving spouse (biological children) and the decedent has no other “outside” children by others who are not the surviving spouse, then the entire intestate estate goes to spouse. (3) If the decedent has descendants who are not blood relatives of the surviving spouse, the surviving spouse will receive one half of the intestate estate. (4) If there are one or more surviving descendants of the decedent, all of whom are descendant of the surviving spouse, and the surviving spouse has one or more descendants that are not descendants of the decedent, one half of the intestate estate. III. Simultaneous Death—What happens if there is a question of survivorship between the decedent and a descendant? IV. 1985 Illinois: GENERAL RULE: The party whose claim to the decedent’s assets or insurance proceeds depends on survivorship has the burden of proving survivorship by a preponderance of the evidence. V. Florida’s Simultaneous Death Statute: 1. Florida Statute §732.601: Unless contrary intention appears in the governing instrument (a will), when two people die and their order of death can’t be readily determined by evidence, each person’s property will be treated as if they outlived the other.

Class 4: Intestacy: Children

B06846401, Florida. I.

General Rule: In all states, after the spouse’s share, descendants take. 1. Florida Intestacy Statute to other heirs (not a spouse) A. Florida Statute §732.103 The part of the estate not passing to the surviving spouse, OR if there is no surviving spouse the entire estate, will go to: (1) The biological children of the decedent (2) If there is no descendant to the decedent’s father and mother equally, or to the survivor of the two of them. (3) If there is none of the above, then to the decedent’s brothers and sisters. (4) If there is none of the above, the estate shall be divided, one half of which shall go to the paternal, and the other half to the decedents maternal, kindred in the following order: (a) To the grandfather and grandmother equally, or to the survivor of them. (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of the uncle and aunts. (c) If there is no paternal or maternal kindred, the estate shall go on to other kindred who survive, in the order stated above. (d) If there is still no kindred on either side, the whole of the property shall go to the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate. 2. Florida’s probate laws do not treat stepchildren as a person’s legal heir unless they are adopted! 3. Florida allows disinherited heirs (though a negative will) to take inheritance of other property that they weren’t disinterested from by intestacy. (In Re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967).

II. Representation 1. GENERAL RULE: descendants of deceased heirs take the remainder of the descendant’s property to the exclusion of everyone else. A. Per Stirpes: ways of dividing up decedents property: (1) English per stirpes (also known as strict per stirpes)—Treats each branch/line of the family equal as to the share of the estate. (2) Modern per stirpes (also known as per capita)—Each person in relation takes individually 2. Florida’s Statute on Representation Florida Statute §732.611 Unless otherwise provided in a will, all devises to descendants, issue, and other multigenerational classes shall be per stirpes. Class 5: Bars to Succession I.

Adopted Children 1. 1988, Maryland. GENERAL RULE: A person who is adopted, may not inherit through that natural parent, even under the intestacy law that permits descendants to receive an intestate share that would have passed to the natural parent had he survived. 2. 1967, Kentucky. GENERAL RULE: Where an adult is adopted for the purpose of making that person an heir entitled to inherit under a pre-existing testamentary instrument, that person will not be considered an heir if doing so conflicts with the intention of the testator. 3. Florida’s Statute §732.108 A. Adopted persons: Treated as a “natural” child of decedent (can inherent from non-biological parents if adopted). B. Persons born out of wedlock: Child can inherit from natural (biological) parents.

II. Posthumous Children: Children that are born after death of a parent 1. 2002, Massachusetts. GENERAL RULE: Posthumously conceived children have the right to inherit under (most) intestacy laws if the genetic relationship to the decedent is established and the deceased parent consented to the posthumous conception and posthumous support of the child or children. 2. 2008, New York. GENERAL RULE: In the absence of specific intent expressed in the governing instrument, post-conceived children have equal rights as a natural child if consistent with the transferor’s intent as gleaned from a reading of the instrument. 3. Florida’s Statutes on Posthumous Children (Called “After born heirs” in Florida):

B06846401, Florida. A. Florida Statute §732.106 Heirs of the decedent that are conceived before his or her death, but born after death, inherent intestate property as if they had been born in decedent’s lifetime. B. Florida Statute §742.17 A couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and pre-embryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance. (1) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm. (2) Absent a written agreement, decision making authority regarding the disposition of pre-embryos shall reside jointly with the commissioning couple. (3) Absent a written agreement, in the case of the death of one member of the commissioning couple, any eggs, sperm, or pre-embryos shall remain under the control of the surviving member of the commissioning couple. (4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will. III. The Slayer Rule –Generally, a person who is responsible for the death of the decedent is not allowed to inherit from the victim. 1. Florida Statute on the Slayer Rule Florida Statute §732.802 A killer is not entitled to receive property or any other benefits by reason of victim’s death. A. How do Courts Decide if a person is a “slayer” -- A final judgment of conviction of murder in any degree is conclusive evidence for being “slayer”. In the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional for purposes of this section. Class 6: Wills: Formalities and Forms—Execution I.

Execution of Wills 1. Every state will generally include a provision, known for historical reasons as the “Wills Act” which prescribes rules for making a valid will. 2. When someone dies with a will, they are known as a testator and are said to have died testate. 3. Wills do NOT take effect until after the testator dies! Therefore: Worst Evidence Rule—Generally, The witness who is best able to authenticate the will (i.e. the testator), is dead by the time the court considers such issues. Court must discern the authenticity, voluntariness , and the meaning of the will. 4. Attested Wills—Core formalities: A. Writing B. Signature C. Attestation

II. General Requirements for Executing Wills in Florida: 1. Florida Statute §732.502 Every Will Must Be: A. Written B. Signed by the testator at the end of the will, or signed by another person at the end of the will C. In the presence of the testator; and at the direction of the testator D. Signed by at least two competent witnesses in the presence of both:the testator; and each other. III. Deviations from the Strict requirements (written, signature, witnesses): 1. 1969 England. GENERAL RULE: Even where a will accurately represents the wishes of the testator, the will cannot be enforced if it fails to comply with the statutory requirements for proper execution. 2. Exceptions: A. SOME (Not all) States allow for substantial compliance: 1998, West Virginia. BUT Florida DOES NOT! B. Video/Electronic Wills—Some (not all) States Allow—Florida will begin to allow electronic signatures by 2018 due to The Florida Electronic Wills Act C. Harmless Error: Some (Not all) States Allow—Florida DOES NOT (Virginia and California Do!)

B06846401, Florida. D. 1959, Pennsylvania. GENERAL RULE: The Court may not revise a will to make it compliant with the Wills Act. IV. Who can be a witness? 1. Generally, anyone who is over 18 and is competent can be a witness! 2. Interested Witnesses A. In Florida, according to Florida Statute §732.504 A will or codicil to a will is not invalidated simply because it is signed by an interested witness. Ideally, an interested party should not be a witness however this itself does not invalidate a will. V. How to Execute; Self-Proving Affidavit: 1. Generally, due execution of a will has traditionally been proved after testator’s death by the witnesses testifying in court OR by their submission of sworn affidavits. 2. Florida Statute §732.503 A self-proving affidavit is not required to make a valid will, BUT it can save valuable time during the probate process. If the self-proving affidavit is not submitted with the will, the petitioner will have to gather proof that the will was properly executed, which can be troublesome if witnesses cannot be located or if they have died. Class 7: Wills: Formalities and Forms—Execution Pt 2 I.

Holographic Wills--Written by the testator’s hand and is signed by the testator. 1. 2004, Maine. GENERAL RULE: For a holographic will to be valid, the signature and the material provisions must be in writing of the testator. 2. 2000, Montana. GENERAL RULE: A letter that conveys a decedent’s testamentary intent to make a specific bequest is enforceable as a holographic codicil to the decedent’s formal will. 3. Not all States allow! Florida does not recognize holographic wills or codicils according to Florida Statute Florida Statute §732.502. (Virginia and California Do!)

Class 8: Wills: Formalities and Forms—Revocation and Integration I.

Revocation of Wills—Modifications and revocations of a Will are allowed by the testator at any time prior to death. 1. By a subsequent writing complying with statutes A. 1934, Virginia. GENERAL RULE: A written revocation on the back of a will that does not otherwise comply with statutory requirements for revocation, cannot affect a revocation by cancellation unless the written revocation defaces the text of the will. B. 2011, California. GENERAL RULE: A will can be revoked by a subsequent inconsistent will. 2. By a physical act such as destroying, obliterating, or burning the will A. 1993, Alabama. GENERAL RULE: The fact that a decedent’s original will that was in her possession before her death is missing after her death gives rise to a rebuttable presumption that she revoked the will by destroying the will.

II. Florida Statute for revocation of a Will. 1. Florida Statute §732.505—Revocation by writing: By a subsequent inconsistent will or codicil, even if the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency. 2. Florida Statute §732.506—Revocation by act: A will or codicil is revoked by the testator (or some other person in the testator’s presence and at the testator’s direction) by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. III. Integration—Integrating all parts of a will, all papers that are present at the time of execution and are intended to be part of the will are treated as part of the will.

B06846401, Florida. 1.

1992, Oklahoma. GENERAL RULE: Where a purported will contains more than one page, it must be made clearly apparent that the testator intended that all the pages together should constitute his last will and testament.

IV. Incorporation by reference-- 1991 Massachusetts. GENERAL RULE: A will may incorporate by reference any informal document not executed in the manner of a will that was in existence at the time of execution of the will and is shown by adequate proof to be the document referenced in the will. V. Contracts Relating to Wills 1. A Person may enter into a contract to make a will or a contract to not make a will. Contract law, not the law of wills, applies. 2. Florida’s Statute on Contractual Wills Florida Statute §732.701--in order to be enforceable, a promise to make a will must be in writing, and signed with the formalities of a will, i.e., that it must be signed by the person making the promise, and signed by two witnesses, and that the witnesses must sign in the presence of each other and the person making the promise. There is no presumption that a testator entered into a contract to make a will or not to revoke a will because she executed join or mutual wills. Florida Statute §732.702 3. Florida’s Repeal of its Dead Man’s Statutes Florida Statute §90.804(2)(e) Written or Oral statements made by an unavailable witness (due to being dead) are now accepted as an exception to the hearsay rule. Class 9: Wills: Capacity and Contests—Mental Capacity, Insane Delusions, and Undue Influence I.

General Mental Capacity 1. The Mental Capacity required to make a will is generally minimal. 2. Someone can Contest the mental capacity using a few different methods. A. Insane delusions are the main contest to mental capacity. They are a legal concept, generally it includes a false conception of reality that affects a will. B. Undue Influence is another common contest to a will. Undue Influence is overreaching by a wrongdoer seeking to take unfair advantage of a donor who is susceptible to such wrongfulness or other factor.

II. Florida Law on Mental Capacity/Insane Delusions/Undue Influence 1. Florida Statute §732.501 Any person who is 18 and is sound of mind can make a will A. Soundness of mind requires that a testator understand all of the following at the time of executing a will: (1) The nature and extent of the property they own. (2) Who would naturally inherit under the will. (3) The practical effect of the will as executed. B. If any of these elements is missing, the te...