WILLS, TRUSTS & ESTATES Class Notes

08/18/03
Generally:
o Rights at Death Right to pass on property by will
o Wills Formally executed; Revocable during your lifetime; Deals with property owned at moment of death
tatutes:
o !"#$%$&: tatutory right to accomplish something after death 'as long as it is not against public policy(
o !"#$%$): *a+es effect instantly upon death
o !"#$%$#: Wills can ta+e any form meeting the statutory formalities 'usually with reference to their property(
o ,referred form- but not essential
Hodel v. Irving: .ndian Fractionali/ing 0ase
$ Right to devise is a property right 'pass on to your heirs(
$ 0onsistent with the G1 statute
$ .f it is a property right- then the "
th
1mendment +ic+s in 'ta+ings clause by the government(2
o ,rovision that re3uires the government to pay value for it
$ 4ere government tried to ta+e away a right to devise- a property right2
$ Hodel stands for the fat that the right to devise is an inherent onstit!tional right2
$ *here was no federal constitutional right to devise prior but most people thin+ 4odel changes that stating there is
a federal constitutional right to devise2 *hey should have overruled the old cases2
$ *he original .ndian 1llotment 1cts gave them the right to devise2 *his right had been already created by Federal
statute2
$ .f it is true that it is not a federal constitutional right- then it is all up to the state2 5ost states have statutes about
wills2
$ What if G1 too+ away that right6 ,eople would 7ust ma+e inter vivos transfers2
o Giving property away ,roblem is that they don8t want to give away the beneficial use of the property2
o *ypes of inter vivos that would wor+:
&( 9oint tenancy with right of survivorship;
)( :ife estate with remainder interest to ;;;;;;
#( Revocable trust;
%( ,ay on Death ',<D( 1ccount 'contractual way to avoid the property sitting there2
$ Right to .nherit: 1ssume we are tal+ing children 'in the case of a child whose parent dies- does the child have any
right to inherit that property2( .f the parent dies intestate- then child has a right- but if parent wills it to charity- then
no2
$ *4=R= . >< R.G4* *< .>4=R.*: 4e can give it to whomever he wants2 ?es- in every state- there is a right to
devise2 *here may be a Federal 0onstitutional right to devise- but there is not a right to inherit2
$ *he right to devise cannot be ta+en without 7ust compensation2 @ut it can still be regulated2 4ow do we regulate
the right to devise6 *axes 'tax on the right to devise property at the time of your death(; Rule 1gainst ,erpetuities
Falls within a group of acceptable regulations li+e Rule in helley8s case- etc2 *hat state that they cannot do
stuff that offends public policy2
o >o allowance for criminal
o >o prohibition on marriage as a whole
o Destruction of the property
o tatutory mechanisms for protecting the family from complete disinheritance 'spouse is protected- but
children are simply not protected except for :1 and G1( =xceptions for :1 'civil code share
legitime(; common law doesn8t see it that way; =xception for G1 having a uni3ue system 'years support(2
Sha"ira v. Union National #an$
$ Restrictions on marriage for the two sons where they had to marry a 9ewish woman of 9ewish parentage within A
years after death or the portion would then go to the tate of .srael2
$ First theory: Biolated the &%
th
1mendment 'it incorporates '=3ual ,rotection and Due ,rocess( to the states2 *he
effect is to incorporate the right announced in the bill of rights not sub7ect to oppressive action by the states as well
as the Federal Government2(
o .t relies on :oving v2 Ba2 .t holds that there is a right to marry under the right of privacy2 *he states are
restricted by the bill of rights from offending2 4= 1? 4= 41 1 R.G4* *< 51RR? W4<5=B=R2
Well- the clause can still ta+e effect2 helley v2 Craemer: @lac+ family buys house in white neighborhood
because the deed has a racially restrictive clause in it2 *hat clause offends the =, clause and offends the
constitution to enforce it2 . have a fundamental right to marry and if the state enforces the will it is too
deleterious on his right to marry2
o helley: *he government was the actor 'state involvement at a high level ta+ing away a right against
discrimination(2 4ere it is more of a private case2 Father owned the property and executor was in control
of the estate2 *here is no real state action here Father could do it then2 ,arents have the right to do
what they want to do2 *his is 7ust a family matter it is not li+e as+ing the court for an in7unction2 *he
state action is not great enough2
$ econd *heory: Biolated public policy *hat it is too much of a restriction on marriage2
o Daniel comes to you and is unhappy because of the inheritance restriction: Restricting him from marrying
the person he would have chosen ,ublic policy should not condone
o *his doesn8t offend public policy according to the courts2
o *4=R= . >< F<R0= 4=R= *he court says that what you are giving up is optional2 Dad had the
right to own and control the property as he sees fit2
$ *he only thing that happens here that is different *here is some governmental involvement here because it is in
court as opposed to inter vivos stuff2
$ %&'()(*+,a-. 0onditions in a will that areDagainst public policy shall be void2 'b( 1 condition in terrorem shall be
void unless there is a direction in the will as to the disposition of the property that happens if condition is not met2
$ *he condition in terrorem in G1 you have to state what is going to happen with the property if the condition fails
in order for the condition to be valid2
$ 4ere the additional gift supports the reasonableness of the father8s restriction .t ma+es the restriction loo+ much
more li+e a religious reason than unreasonable restriction on marriage2
$ What if Daniel had already married a non$9ewish girl6 *hat would be against public policy2 'ee the notes to the
hapira case(
08/20/03
La/ of Wills and Intestate s!ession
,rocedure:
Die with a will: *estate
Die without a will: .ntestate
Die with a will and the executor is named and offers the will for probate
5ust prove it is the last and valid will of the decedent: Ehaving the will probatedF
5ost include administration and probate in the one expression of EprobateF2
:etters *estamentary: :etters that state that the person is authori/ed to handle the decedent8s property
*estate .ntestate 4eirs
=xecutor 'trix( 1dministrator 'trix( ,ersonal Representative 'Fiduciary(
*4= 1D5.>.*R1*<R
$ 1dministrator: has to be found additionally the executor may not serve and it would be administrator
$ 5odern terminology: ,ersonal Representative
$ *his person is a fiduciary to the beneficiaries of the will2
$ ,2R2 does the administration of the estate which includes: &( inventory and collect; )( manage and protect;
#( distributions to creditors; %( effectuate the donative transfer 'distribute to beneficiaries(2
,R<@1*=:
$ ,2R2 ta+es will to probate court and offers it for probate to be proven valid last will and testament2
$ G1 cheme for this: .f you a pretty sure there are no lur+ing problems 'no large creditors to dispute- no heirs who
don8t ta+e under the will that would challenge the will(- you can probate in common form2 .f there is large estate or
difficulty it will be solemn form2
$ 0ommon Form- olemn Form and >o 1dministration >ecessary: *hree ways to probate will2
$ C0110N 20R1: >o notice necessary to all heirs at law 'those who would ta+e if died intestate(; wear to the
facts; Get letters testamentary; >ot binding until A years2
$ S0LE1N 20R1: >otice to all heirs at law2
$ Heirs at La/: =very state has legislation that controls this .ntestate distribution statutes 'favors surviving spouse
and children(; hares may be different; ,arents- siblings- etc2 *his statute is simply the legislative 7udgment about
what a person would have done with property if they had a will2 *hose people who ta+e under this scheme are
heirs2 4eirs at :aw may be very different than those who are under the will2
$ >< 1D5.>.*R1*.<> >=0=1R?: .f there is an intestacy- the only difference is that there is no will2 When
you get to administration- the will and intestate administration should be very similar2 .f you have an intestate
estate- this procedure can be done no ad3inistration neessar42 .nstead of appointing personal representative-
the heirs at law can go into probate court and state that they inherit all of the property and state that we can handle
it2 *he probate court can give them an order of no administration necessary- which wor+s li+e letters testamentary2
With an administration- ,2R2 has to +eep going bac+ and get accounts chec+ed2 4ere they do not2 *hey can drop
out of administration2
$ *.*:= 0:=1R.>G FG>0*.<>: <ne of the main reasons why probate is set up2 .t is important that we +now
who owns what for commercial system2 When you do administration- you get letters testamentary to direct
someone to recogni/e a change of title2 When we start tal+ing about this function- states are very possessive about
7urisdiction2
$ 9GR.D.0*.<>: Real property records must stay straight2 .f a person dies living in one state- the probate and
administration of the estate will be in the domiciliary or primary estate2 .f there is real property in another state-
they have to do an ANCILLAR5 probate in the other state where the real property is located2
$ ?ou can use an inter vivos trust to create a situation where you wouldn8t need ancillary probate2 ':ife estate with
remainder can be used the same way(2
Devise Real ,roperty: Devisees
@eneficiaries
@e3ueath ,ersonal ,roperty: :egatees
1D5.>.*R1*.<> <F *4= D=0=D=>*8 ,R<,=R*? What is in the estate when decedent dies
$ .nventory: Real property you hold in fee simple
$ *he other stuff *hings that are there when you die but aren8t given away2
$ ,robate =state: does not include some things: *his is governed by state law and title concepts 'Federal Gross
=state: .s governed by federal law(2
&2 9oint *enancy with right of urvivorship: >othing left for probate because the share travels under the
deed2 '*enants in 0ommon are not li+e this because you would still pass H to beneficiaries(2
)2 :ife =state with Remainder in Fee imple: >othing left for probate because it passes under the deed
#2 :ife .nsurance: @eneficiary already named and the title transfers by contract2
%2 ,ay$<n$Death 0ontracts: ':ife insurance is a form of this- but you can put ,<D distinction on other
accounts and the li+e(2 What is happening here is inter vivos transfers 4istorically the only one that
was valid were life insurance policy2 ,ension plans and registrations on securities will be able to pass li+e
this too2
"2 Revocable .nter Bivos *rust: Will not avoid inheritance tax 'irrevocable might(2 We will examine in more
detail2
FR1GDG:=>* *R1>F=R :1W
$ .f a person gets in a situation where they have more liabilities than assets and they +now it- but they have control
over some of their assets- it is not uncommon for people in that situation to ma+e gifts of their assets2 1 creditor
may come in a 3uestion the transfer of the assets2
$ 0reditor must show that: they +new they were insolvent; they +new the transfer would ma+e them less capable of
paying the debts off; within a statutory time period2
,R<@:=5 <> %I and %A:
&2 What is in the probate estate6 0hattel- savings account- maybe chec+ing account 'unless there is right of
survivorship on the chec+(- pension plan will not be in estate- bonds 'probably contracted unless it is a tenancy in
common where they will ta+e H for the estate(- :ife insurance will not be in estate- 0ar goes to estate2
a2 =*1*=: 0hattel- savings account- car- maybe 7oint chec+ing and bonds2 'leaving 9202 out(
b2 4=R: ,ension plan and life insurance- maybe 7oint chec+ing and bonds2
i2 he has trouble getting control of the bonds and the 7oint chec+ing account: he would still get
half of the bonds2 he gets it anyway because she is beneficiary under the will2
c2 5ust she probate: she doesn8t have to- but she can get letters testamentary2 'G1 tatute will let you bring
death certificate for accounts less than J&KC ?ou have to swear you are the ta+er of the account(2 he
has no problem cashing anything but the car2 *he car is titled only in his name 'she can go to D5B and
present them with forms( >< >==D F<R ,R<@1*= .> *4. .*G1*.<>2 *his is the J&KC ban+
account statute '!A$&$)#L( and a 5B code '!%K$#$#%(2
d2 he does not need administration of the estate nor does she need to probate the will2 Does she have to do
anything with the will6 .f there is a valid last will and testament- it must be filed with the courthouse in
G1 'it is a misdemeanor not to offer it for filing(2 G1 tatute stating that2
e2 *he debts: 1s long as she is going to pay them and isn8t going to contest them- she doesn8t need
administration2 What happens if she files and is named executor and gets letters testamentary and never
pays the debts6 he has a statutory duty to pay the debt2 .f she fails to use his assets to do that- she is
personally liable2
)2 What if he died intestate6 pouse H and ) +ids H 2 >o need for administration unless there is reason for children
to be worrisome with her shit 'you can only do no administration necessary in intestate cases(2
#2 What about owning the house and a lot6 *hose would go to his estate 'executor(2 he would need to probate
because of the real property2 .t is the only way to get clear title2
%2 Does Green really need a will6 *his is a family that you +now and children are no problem at all2 uggest a will
because it would be more practical2 4e doesn8t +now what he is going to have when he dies so it is always a good
idea2 *hin+ about it2 Right now you really don8t but the will controls the situation when you die2 ?ada- yada-
yadaD
08/25/03
FR<5 :1* 0:1:
=very level of trial court in G1 has adopted uniform rules and uniform forms that were approved by the G1 supreme court
$ 5agistrate- 9uvenile- ,robate- tate
$ uperior 0ourt 'only court where 7udges have e3uity 7urisdiction(
$ ,robate court 7udges used to not have to be 7udges2 =xpanded 7urisdiction e3uitable remedies added on to some
probate courts- but 7udge must be lawyer2
$ ,robate court has the most extensive collection of forms2 *he rule on uniform forms you have to use them 'not
optional(2 *he court doesn8t have to scrutini/e all the clauses2
<ne of the benefits of drafting a will instead of dying intestate
$ .f you draft and pic+ own executor- it is common to include that you waive bond2 *he personal representative
must handle all of the deceased property2 o- the courts re3uire bond 'insurance( for that property2 *he insurance
policy will protect the beneficiaries2 *he premium of the bond comes out of the estate2 *his is conventional to
waive the bond2
Si3"son:
$ Dispute over meaning of homestead
$ tepmother is getting life estate in homestead2
$ 4ere he is suing the attorney $ *he probate court had determined that the homestead included the surrounding land2
$ on bought life estate for J%KKC2
$ 1ttorney: ?ou are not my client- so you can8t sue me2
$ 1ttorney: 0ollateral estoppel argument @ut the probate court only loo+ed at the four corners and didn8t allow all
of the extrinsic evidence2 *hey didn8t let in the attorney notes where the lawyer had notated2 *he probate court
decided what the document as written meant2 *he appellate court is deciding what the attorney was supposed to
get into the document2
$ on convinces the court that the attorney was supposed to have put that in the document2
$ *he cause of action is in negligence: Duty 'foreseeable plaintiff(- @reach- etc22
$ 4e could plead it as C because he was a #
rd
party beneficiary2 Damages are also limited under C law2
$ 4e is within the scope of people protected by the contract and the plaintiff also argues the C cause of action2
$ 5alpractice: 0an be pled in both negligence and contract law2 ?ou should plead in the alternative
$ *he other piece of the case: 4ow sweeping is this6 .s this uniform between 7urisdictions6
$ What if father sues6 houldn8t father be relegated to C damages6 What is the harm to dad6 5onetary loss of fee2
.s the deceased relegated to recover only the fee he paid since that was the only damage he really suffered6
$ *4= RG:=: *here was probably a universal rule that the only person who could sue attorney for malpractice was
a client2 *he lawyer is responsible to the people that would have ta+en under the will were it not for the attorney8s
drafting2 *he beneficiary has to show negligence by the attorney 'rule against perpetuities mista+es are ><*
considered negligence( but it is more conventional now to recogni/e causes of action by beneficiaries2 *hese can
be pled as long as the is foreseeable- 'the damages have to be provable on the documents(- and under #
rd
party
beneficiary2
$ <n p2 I)- there are additional facts where there is sloppy drafting- but they were unable to ta+e because the will
was drafted so poorly2
Hot6 v. 1in4ard
$ 1ttorney drafts will for father 'has done wor+ for daughter too(2
$ he as+s the lawyer and negotiates a deal where she will be restored as to the first will 'not the second controlling
one(2
$ .t was the second will that much favored her brother2
$ 4ere- there is breach of fiduciary duty because she is supposed to be able to count on him to +eep her informed2
$ 4e has now had to withdraw from both because he can8t be dealing unfairly with both2 ?ou have to get a waiver
of confidentiality or written consent2 Get a waiver of confidentiality2
$ .n this practice- families come in together you don8t want to not have multiple representations- but you must
inform them about confidentiality issues2 *here are adverse interests for all of them2
=*1*= *1M=
$ *he *ax cheme: =veryone thin+s that there is going to be some amendment to this before )K&&2
$ =state and Gift: Ta7 on "rivilege of transfer on the transferor
$ .nheritance *ax: *ax on recipient >ot one in G12
$ 4istory: &L&I =state tax startedD&LI% there was exemption of JIKC and AAN over J&K million2 =state tax only
applied to property owned at death2 1 person with a J"K million estate they would leave life estates successively
as long as rule against perpetuities would allow them2 Dynasty trust situation2 &LAI: =state and Gift tax were
unified2 =state is testamentary and gift tax is on inter vivos transfers2 &LO&: =xempt amount went up to JIKKC
which is a credit actually and the top rate dropped to ""N2 &LOI: Generation s+ipping tax which controls for new
dynasty trusts but old ones were grandfathered in2
$ )KK&: =G**R1 '=conomic Growth and *ax Relief Reconciliation 1ct(: *he act preserves the structure of taxes-
but then terminates it2 *he political line is to abolish the estate tax2 unset provision reverts to J& million
exemption2 We all +now something is going to happen2
$ =xception to =state *ax: 1arital E7l!sion Generational transfers are supposed to be taxed- but there is a
complete exclusion on anything passed to the wife or husband2 *here is &KKN marital exclusion2 '0areful about
)
nd
marriages do not want to give up complete control and run the ris+ of no one getting anything2( 0an leave it
in trust to wife p2 &KI& and &KI) cases2
$ =M15,:=: uppose you have a client who comes to you 'under J&2" million exemption(2 4ubby has J# million
in assets2 Wife and ) +ids What should he do to maximi/e the tax benefits6 &2" to wife and &2" to children 'none
is taxed(2 4e would get this to his +ids without a problem2
$ Right now the exemption is rapidly moving to )K&K schemeD.n the interest of favoring families- there are ways to
ta+e advantage2
$ 8(TI9 trust: *here are ways to ta+e advantage of the marital exclusion without giving them control over what
happens when they die2 .f you give it in fee to the spouse- they could do anything with it2 :et8s you ta+e
advantage of the marital exclusion- but not giving it up in fee to spouse where they can do anything with it2
G.F* *1M=
$ =M0:G.<>: Donative transfers: =ach can give J&&C per year per recipient without paying gift tax2 =ach one
of the spouses can give it to each person without transfer tax2 1ny donor to any donee $ ?ou can also pay
anybody8s tuition or medical expenses 'on top of the J&&C(2 *his will never be counted under gift tax2 *uition is
even broader 'educational expenses(2 ?ou must pay the provider and not the person directly- but still <C2
$ =M=5,*.<>: First J& million given away above and beyond the exclusions is exempt from taxation add up
all of the amounts you have given over the years over and above the initial exclusions you also have the right
to give away J& million without transfer tax2 *his is part of the exemption2
G=>=R1*.<> C.,,.>G *1M
$ 0ongress said that the ability to avoid estate tax with successive life estates is thwarting their plans2
$ *hey are then taxed as if it went through the child if going straight to the grandchild2
$ @1.: tepped up basis is sub7ect to repealed2
'Wrap up on OP)APK#(
$ >eed to have some expertise in handling estate and gift tax if you are estate planning
$ *he tepped$Gp @asis rule: For inherited property- the tax basis is the date$of$death mar+et 'or I months after
D<D( value of the property2 ?ou would then not have to pay capital gains at such a high rate don8t forget
marital exception and J&&C exclusions and the educational and medical bills as long as you pay directly2
$ *he J& million exception is for lifetime gift and estate tax at death2
$ 9ro:ate Estate vs. 2ederal Estate for Estate ta7 "!r"oses 'different discussed on p2 &KKI(: Federal *ax =state
Q what is in the estate; other economic assets transferred within # years of death 'this is not in probate estate(;
retained life estate or retained controls 'Feds are loo+ing at who had dominion and control during their lifetime
this would not be in probate estate(; *ransfers ta+ing effect at death ',<D ban+ accounts with be taxes although
outside the probate estate(; Revocable *rusts; etc2; :ife .nsurance policy 'it is considered owned by the decedent
and the benefits are under the estate for tax purposes(
08/27/03
.>*=*10?
A. ;enerall4
$ 0oncept that society allows wills but a lot of people don8t do that
$ ?ou can have partial intestacy 'doesn8t ta+e into consideration all of the property(
$ tate legislatures have stepped in and made the best guess about what most people would do if they wrote a will2
$ G,0 and G1 versions are what we are going to loo+ at2
#. U9C Estate
$ Definitions
o .>*=*1*= =*1*=: 1ny part that is not effectively disposed of passes by intestate succession to the
decedent8s heirs as in the code2 *hey can prohibit intestate property from passing to an heir in the will
'common law rule does not allow you to do that negative disinheritance(
o 41R= <F ,<G=: 'only applies if there is a surviving spouse and only tells you what there share is( .f
there is a surviving spouse and ) children of the marriage- spouse gets it all2 .f the children are only from the
marriage- all of the property goes to the spouse ')( .f there are no issue of the decedent- spouse gets first
J)KKC and R of the value of the estate and the rest of the estate to the parents2 '#( .f there are more children
that are not of the current marriage there is property put aside for them; '%( .f there are children not of the
current marriage of the surviving spouse2
o 41R= <F 4=.R <*4=R *41> GRB.B.>G ,<G=: 'could be entire estate(; &( Descendents of the
decedent 'children- grandchildren- and great$grand children(; )( if none- then to the parents; #( .f none- then to
the descendants of the parentsD '*4. . *4= ,1R=>*1:.0 ?*=5(; %( grandparent8s line
o >< *1C=R: ,asses to the estate2
$
C. ;A Estate
$ Definitions
o 41R= <F ,<G=: .f there is intestacy where decedent is survived by child and spouse- spouse gets at
least a #
rd
2 pouse cuts of parents if no children2
$
D2 9ro:le3s. 'p2 AI(
&2 4oward @rown8s estate planning: 4 has ) children with Wendy and W has & other child2 What happens if 4 dies
first in G16 Divided into &P# with W and ) children2 What if Wendy died first6 4 Q &P#; =ach child ta+es )P#
between three of them ')PL to each(2 >ote on p2 AI =ffect of additional child under G,0 is different
)2 4 S W married & year and 4 survived by wife and & brother- who gets it6 W.F= gets it all under G1 and G,02
#2 4 S W live together but relationship is bigamous6 <R common law marriage6
%2 0ommitted cohabitant partners: Gnder the law- they wouldn8t get 7ac+ unless there was a common law title issue
about who bought the property2
=2 41R= <F D=0=>D1>*:
$ Where there is property that needs to be distributed
$ Dividing the shares at the first level where there are survivors to ta+e2
$ .f a line of descendants is dead- then you split it among the first level of descendents that are surviving under
G,0
$ G1 does strict per stirpes '=nglish(: 1lways divide according to the original share even if they are all dead2
$ G1 per stirpes 'part & of !"#$)$&( under '#(2 G1 ta+es out spouses share and then goes per stirpes2 >o
surviving spouse 0hildren ta+e and those who surviveD,=R *.R,=2
$ ,roblem on p2 OO: G1 first as said in boo+2
$ <n p2 LK- there is note on negative disinheritance 'G1 hasn8t ruled on this yet(2 .f there is a provision for this-
it might not be valid in G12
F2 41R= <F 1>0=*<R 1>D 0<::1*=R1:
$ 0hart on p2 L)
$ Degrees of relationship: &
st
cousins are %
th
degree of relationshipDetc2
$ G,0 ends with grandparents line2
$ :oo+ at the statute and see where the line ends2
$ :<<C G, ,1R=>*1:.0 ,R=F=R=>0= .> R=G*:.>G=R ':aughing heirs: people who are #
rd
cousins
that get discovered and get the money(2
$ G,0 has 3uic+ escheat2
09/03/03
.>*=*10? '0ontinued(
$ :ast 0lass: hare of urviving pouse and hare of 0hildren and .ssue and hare of ,arents 'legislature trying to do
what the person would have done if there had been a will(2
$ *here are ) ways: ,er tirpes 'trict( in G1 .ssue at the first generation regardless of whether one is surviving2
G,0 First generation with survivors and divide per capita at that generation2
&2 0<::1*=R1:: First chec+ statute- then you go to ,arentalic system of the G,0 to determine who ta+es 'stop if
you hadn8t found anyone by grandparents(2 <thers- do the common law system2
A. 9ro:le3s. 2irst Co!sin and ;reat(Unle s!rvive. #oth are )
th

degrees Under U9C it /o!ld esheat to the state. In ;A, 2irst Co!sin /o!ld get it !nder s!:"art <. In
1ass., ,Nearest anestor- it is the "arentali "referene so it /o!ld go to ;A. #ea!se the first o!sin is
related thro!gh the grand"arents, then the4 are "referred and are not a re3ote as the great !nle.
#. 9ro:le3 = on ". >*. To 3other !nder :oth U9C and ;A.
C. 9ro:le3 ? on ". >*. @ to 3o3As and B to eah of dadAs first
o!sins ,if 4o! have to go to grand"arents to find deendants and @ goes do/n eah side. 2irst o!sin on
3otherAs side gets entire @.
C. 9ro:le3 ' on ". >*. We /ont have one this o3"liated on the
e7a3. Closest in degree gets it all in ;A. In 1ass, it /o!ld go to the losest degree. #ea!se A is &
th
and # is
*
th
. Under U9C # gets ever4thing, :ea!se the4 /ont go "ast ;rand"arents.
)2 R=:1*.B= <F 41:F$@:<<D are treated li+e whole blood under both G,0 and G12 tep relatives do not ta+e
li+e that but they do in 012
$ Janus v. Tarasewicz: *hey don8t +now why brother died and they rush bac+ from honeymoon2 @oth got headaches and
they too+ *ylenol2 *hen they both convulsing and collapse and die2 *he evidence is conflicting about who died first2
*he wills 3uestion: *here is a life insurance policy with *heresa as beneficiary2 .n order for *heresa to ta+e she has to
survive him and only by a matter of seconds2 4e has decided in his life insurance that if *heresa survives him she gets
it but if not his mother gets it2 @urden of ,roof is on tanley8s mother in this case because it falls on the party whose
claim depends on establishing survivorship2
$ SI1ULTANE0US CEATH ACT: .f it is a simultaneous death 'where we can8t decide(- and there is not sufficient
evidence- it is treated as if each survived the other2 .f you can8t tell the order- then assume that each survived for the
purposes of the property2 '1t least a moment(
$ U9C: &)K hours rule where the death is 3uestionably simultaneous- must survive by &)K hours2 .t doesn8t matter
what causes their death2
$ ;A RULE. till have the simultaneous death act 'not amended(2 .t is the original GD12 omething to thin+ about in
drafting the will2
$ 1pplies anytime who gets it depends on the time of death
AC09TI0N
$ <verview: 5odern rule of adoption is that the child is adopted into the adoptive family for all purposes- including
ta+ing at death2 1dditionally- they are adopted out of the biological family for all purposes2
$ 4all: 5other8s new husband adopts 0hildren after father8s death2 *he rule is that they have been adopted out so they
can no longer ta+e from the dead father8s family in intestacy situation2 *hey are saving the mother8s status2 0hild ties
to one natural parent will remain in saving the mother8s relationship2 *hey are the adoptive father8s children and will
inherit through his family as well2 *hey are not the deceased father8s family any more2
$ U9C ,%?(==),:--. 1n adopted individual is the child of his adopting parent or parents and not of his natural parents-
but adoption of a child of the spouse of either natural parent has no effect on the right to inherit from the natural parent2
1 :.**:= @R<1D
$ ;A Stat!te. *he children would be able to inherit *he G1 statute states that where the adoption follows death but
not divorce they are able to ta+e2 *he original rule and then the G,0: :et the adopted child continue to inherit2
$ 1ll can be controlled by will2
$ 0an you adopt an adult6 'p2 &KA(
$ U9C %?(==': <nly entitled to a single share even if you are related through two lines of family2 '1dopted in after
parents die by aunt(2 ?ou are their child or the cousin2
$ <8>eal v2 Wil+es: tatute eclipses the decision2
$ 4echt case: We are not going to focus on it2
09/08/03
AC09TI0N Birtual- =3uitable <R by =stoppel
$ <8>eal v2 Wil+es: G1 uses virtual adoption was born out of wedloc+ and went through a succession of parents2
1bandoned by father at beginningPraised by mother who died when she was OPtayed with aunt for % yearsP :ouise for
short while and +new father8s sister and too+ her therePFather8s sister 'biological aunt( too+ her to the 0oo+s because
they wanted childrenP0oo+s from &#$&% to mid )K8s2 =vidence is uncontroverted that 5r2 0oo+ treated her as his child-
called her his daughter2 5r2 0oo+ dies intestate and wife has predeceased2 .f <8>eal is daughter she inherits the estate2
he argues that she was virtually adopted by the 0oo+s2 B.R*G1: 1D<,*.<>: &( 1greement between natural parent
and legal custodianPadoptive parents; )( 4old child out as a their child; #( *reat child as their child; %( 0hild treats
them as parents2 <8>eal says she meets all elements *he closest blood relative was the Enatural parentF who gave
child to 0oo+s2 G1 upreme 0ourt says they are ta+ing a Estrict construction of common lawF2 What is the concern6
Fletcher must have been worried about other cases where a claim li+e this would prevail and lead to property going to
someone who shouldn8t inherit2
o =3uitable 1doption: .t seems that the e3uity runs in strongly of <8>eal2
o 1doption by =stoppel: ?ou are estopping the father from not recogni/ing her as a child 5r2 0oo+ could
have formally adopted her so he created the problem2 ,ersonal representative is estopped from saying she is
not the child of the deceased
o Welch v2 Welch: %"# =)d %%"- &LL": 9uvenile court gave custody to another family and this was not enough
to hold for virtual adoption2 :egal custody was not enough2
o :egal custodian doesn8t have the right to consent to the adoption of the child 'the statute doesn8t actually say
this(2 'p2 &&K of the case(2 *he statute only states what the legal custodian can do2
o What about the parents if <8>eal died first6 >ope Birtual adoption only runs one way2
N0N(1ARITAL CHILCREN
$ *hese children are the ones who are hurt and are totally blameless2
$ 4istorically- intestate inheritance disfavored non$marital children probably every state did not allow inheritance by
illegitimate children of fathers but did for illegitimate children of mothers2 With fathers- it might be difficult to prove
they are actually the biological fathers of the children2
$ G1 tatute !"#$)$#: 0hild born out of wedloc+ may inherit through mother2 ')( .llegitimate child of father does not
inherit unless: 'i( court has declared child legitimate; 'ii( court has established paternity; 'iii( Father signed affidavit
attesting to parent$child relationship; 'iv( igned birth certificate; 'v( 0lear and convincing evidence that child is child
of the father2 D>1 provision has time limitation2
$ !"#$)$%: 5other inherits from child but the father inherits if above happens except for clear and convincing evidence2
$ tatute on page &A used to provide that mother could inherit but that father could inherit only if he provided support
and care2 *he statute has been amended to ta+e that out for e3ual protection reasons2
$ 0ase where father raised child 'p2 &&I( but wasn8t married to mother and didn8t have a will2 When the father died- it
was a 3uestion of who inherited father8s assets. ED!ita:le legiti3ation was adopted here2
$ Heht v. S!"erior Co!rt: Decedent has ) children by divorced wife and relationship with 4echt2 4e +ills himself and
had fro/en sperm in cryoban+2 *he sperm had seemingly been left to Deborah 4echt both in his will and documents
at the cryoban+ 'li+e a ,<D account(2 1fter he dies- ) college aged children from the former marriage see the threat to
their inheritance and bring an action stating that Deborah should not have the sperm because it violates public policy2
*his would be post$mortem use- single woman and no nuclear family generally offends public policy2
o *he court said that the public policy arguments would be stupid because there isn8t that strong of a public policy
because single women have children now2 1s to the nuclear family argument- they go into reproductive
technology and things are changing2 We are not willing to go there on public policy arguments other states
might be different2
o *he contract beneficiary at the cryogenic ban+ $ ,roblem We 3!st /ill things to "eo"le and other ollateral
ontrats /ill not transfer testa3entar4 "ro"ert4. ,<D statutes are in the ban+ing statutes but these are
different2 .f she is agent- it ended at his death2 <r invalid attempt at testamentary disposition2
o Does she get the sperm under the will6 ?es2 *here also was a settlement agreement to give less of the sperm to
her- but the will specifically stated2 perm were treated as a interim character not going to let settlement
reoriented the sperm2 0hild must be born within #)K days of death in 012
o Gnder G1 statute- can child inherit6 0hild must be in being 'conceived prior to decedent8s death and born within
the &K months(2 We need to loo+ to the intent2 4e could mean those conceived post$humously2 For purposes of
G1- the statute re3uires pre$death conception for intestate distribution2 *he Federal Government when there are
tax laws it defers to state law to control the finding of facts2 *his happens with ocial ecurity benefits2 *hey
loo+ at the state intestate distribution scheme2
ACEANCE1ENTS
$ G,0 says that the doctrine of advancements applied only to .ntestate Distribution2
$ 0ommon law rule on advancements 'Default status(: :oo+ at the situation where there were lifetime gifts above
normal2 *hey then presumed they wanted the children to be treated e3ually2 :ifetime gift should be ta+en out of
child8s intestate share2 0ommon law had a ,R=G5,*.<> that the lifetime gift 'over parental obligation( should be
removed from the intestate share2
o ,roblem: Widow had "KC but & child of the # children got &KC gift2 *here is a IKC hotchpot2 1- @ and
0 have IKC hotchpot where 1 and @ get J)KC and 0 gets J&K2 What if 0 got J%KC gift6 0 doesn8t get
anything because it was more than hotchpot2 1 and @ get J)"C2
o >ever treat the intervivos gift as creating a debt for the child2
$ G1 law uses the words of advancement in testate as well2 G1 tatute Following the G,0 flips the presumption '&(
,R=G5,*.<> *41* :.F=*.5= G.F* . ><* 1> 1DB1>0=5=>*; ')( *he only way to prove it is
advancement is show a writing2 'ame as in G,0( ,resumption is that the lifetime gift is not advancement and need a
writing to prove 'could be a concession by the donee- but still a writing(2
09/10/03
ACEANCE1ENTS 'cont2(
$ Default Rule: 5ost people meant to treat children e3ually in the distribution of the estate2 .f a parent gave a child
property over and above obligations- the presumption was that is was an advancement and when the parent died you
would count it against the child2
$ Gnder 0ommon :aw: *he 3uestions exist: Was it really above the obligations and did the parent really mean to ma+e
the gift6
$ Gnder G1 and G,0: *he rule of advancements is in statute and the presumption is flipped2 .nstead of original
presumption- the new presumption is that it is not a gift2 <nly way to prove that the lifetime gift is an advancement is
to have a writing: either by the parent <R a concession by the donee2
$ Differences between G1 and G,0 'p2 A and &#K(
o G,0: .ntestate and defines only advancements
o %&'(=(=F: G1: =ither testate or intestate satisfaction and advancements in the same code section 'satisfaction:
daughter gets ring in will but mom gave it to her before she died2 o it is satisfied2
o <nce you decide it is an advancement- it is only relevant where the person who received the advancement survived
and can ta+e under the will2 .f he predeceases- then the advancement is not ta+en into account2 'G1 states that it is
ta+en into account p2 &K $ %&'(=(='(2
EG9ECTANC5
$ .f you expect to inherit from someone it is only an expectancy *he hope of inheriting from somebody
$ @ecause it is only an expectancy it is not considered property under common law2 1s a result it cannot be transferred
legally2 ,roblem: Gse an expectancy to contract @ecause it does not exist you cannot use it as consideration for a
contract2
$ .f you are in a court with e3uitable 7urisdictions- you as+ for e3uitable relief and you might get the C enforced in e3uity
but not in law2 '5ust be in uperior(
$ G1: *rammel ))% G1 #I" :ast case: 0ontext of divorce .t was in the divorce agreement and therefore in the
court8s order2 till the G1 upreme 0ourt said it was only an expectancy '&LIO(2 .t is not uncommon for a state to say
that recogni/ing a C for expectancy is unsettling2 0ourts that will not recogni/e an outside C will nonetheless
sometimes recogni/e the release of expectancy with money2 G1 has one of the strictest rules in the 7urisdiction2
1ANA;IN; A 1IN0RAS 9R09ERT5
$ @ecause they cannot enter into C- they can8t manage the property2
$ ?ou have a fiduciary duty to the minor and the personal rep needs to be able to protect the minor and them2
$ *hree 0hoices
&2 ;UARCIANSHI9: ?ou don8t have the right to control the money for the child2 *he problem is that you have to
get someone approved and go to court and because that person gets the power through the court- the court retains
ongoing supervision2 0umbersome and expensive 'possibly moderni/ed and streamlined later(2
)2 UT1A: Gniform transfers to minor8s act ame law as GG51 if you see it2 *ax law says to have it be a
completed gift for our purposes the child has to have control over the money2 G*51 1ccounts are cheap and easy
to ta+e care of the control and acceptance2 .f you ma+e a gift to a minor in this way- you put the property in the
name of a custodian for the child2 1ny property can be put in this account2 *he child who is the true owner of the
property must get control at either &O or )&2 ome property that child gets control of at &O and some )& under the
G1 law2 *he child has to have control over it at )&2 *his is good for small gifts but not really large gifts 'also
other small gifts(2 1s a formal matter- G*51 re3uires child to get the money at )& but this is really easy to do and
not a terrible idea2 With G*51- you have a fiduciary 'custodian( and beneficiary is minor2 '.t wasn8t clear before
that personal representative could open an G*51 for the minor- but most states provided for it G1 does provide
for that expressly(2
#2 TRUSTS: .nter vivos trust ?ou have fiduciary 'trustee( and anyone can be the beneficiary2 What is the
difference between the ) fiduciaries 'fiduciary powers are pretty damn extensive(2 *rustee only has the powers the
trust instrument gives them 'maybe more limited than G*51(2 ?ou have broad powers under G*51 but the
trustee is the benchmar+ for fiduciaries trustee of the highest order2 0ustodian powers are defined by statute
while trustee is defined by contract2
$ ee last paragraph on p2 &#% stating that you can 7ust give parent control if the property is less than J"KKK but G1 does
not have this statute ?ou can in other states give it to parents to hold as personal representative $ !"$&K&2
$ ,2 &#": *angible personalty; 0abin; remainder in house; corporation stoc+2 '*hose are probate property( everything
else will go via will2
$ *he Will on p2 &#A:
&2 =xpress revocation clause
)2 Discreet .tems
#2 4ouse
%2 Residual 0lause
"2 0ontingent *rust clause only applies if children are under a certain age2 We are loo+ing at a support trust 'gives
children whatever income is needed for their support(2 .nvasion of corpus clause 'stating if you need it for support
you can use it2
I2 >ominated *rustee if &
st
doesn8t 0ontains exculpatory clause and trustee8s powers '>o trustee shall be liable
forD( and then control is right underneath that2
A2 *rustee is not the guardian of the person or the property2 '?ou can also do this by letter for ease of changing(2
1lso- children are not property and shouldn8t have been disposed of in will2 1ll this does is let the court +now
what you want to be done2
CISCLAI1ERS 'p2 &%O$L(
$ *hese are important because they give you the opportunity for post$death estate planning2
$ ?ou need a statute for this because of the common law rules2 For gift- you need donative intent- delivery and
acceptance2 *he common law says that real property flips to the heirs at law so what if you didn8t want it2
$ D.0:1.5=R and R=>G>0.1*.<> mean the same thing2 1 person who stands to inherit says . don8t want it 'either
testate or intestate(
$ Why would you do this6 1void estate taxes 'instead of going to wife(; 1void creditor liability2 hifting to avoid
creditor and tax liability2
$ ?ou have to do it right 'under .R code and tate law purposes(2 !"#$&$)K: 5ust be in writing- before accepting
benefits- 'if a present interest must be within L months of transfer if a minor you have L months from ma7ority(- 'if
a future interest you have L months from vesting- indefeasibly(2 .R says only L months from the creation of the
interest2 '.f adult- L months after interest is created and if minor- L months after interest and )&(2
$ .R says L months of when the interest is created when the interest appears in document admitted to probate2
Tro4 v. Hart: 4e had appointed an attorney 'agent( and you weren8t stripped of powers2 =ven though he had appointed
someone he could still do it on his behalf himself2
09/15/03
CISCLAI1ERS ,ont.-
$ 5ust be in writing- within L months of the date the interest is created 'if testamentary- date of death(
$ .f it is going through intestate estate or will you can disclaim the inheritance2
$ 1s a policy matter- the purpose of disclaimer is to let you avoid creditors and taxes2
$ 0ritical things: 5ust be in writing; *here are different rules for when the L months starts running 'most people want
.R disclaimer and it must be on the date the interest is actually created(; if the gift is testamentary it is the date of
death2
$ What happens if there is a disclaimer6 *he person is treated as if he predeceased2 'one of the law of wills favorite
fictions(2
$ ,roblem on p2 &"K: < has ) children '1 S @(2 @ dies survived by one child- 02 *hen < dies intestate2 <8s heirs are 1
and 0 and 1 has four children2 1 disclaims2 4ow do we determine6 .n G1: .t goes to H to 1 and H to @8s heirs 'b(2
18s H $ trict per stirpes in G1 divided by representative2 18s children get &PO
th
each2 Gnder the 5,0- each
grandchild would get &P"
th
of the estate2 .t is per capita at the first surviving generation2 *here would be a premium on
disclaiming 4<W=B=R: Gnder the disclaimer statute in the G,0- it provides that only the disclaimed interest can be
passed
Tro4 v. Hart.
$ :ettich gives *roy ,<12
$ 1stranged sister dies intestate2 4art- one of the sisters- reali/es that if he 3ualifies for 5edicare- he would lose it
because of the estate2
$ :ettich croa+s at some point2 *roy the attorney in fact appeals because he wants to get the disclaimer bac+ in
place2
$ Did :ettich validly disclaim his interest in the estate6
$ First :ettich executes a disclaimer with 4art2 *roy gets a lawyer to come in stri+e the disclaimer because it is
5edicare fraud2 .s this per se a rule6 Well it is a professional responsibility rule2
$ .s he violating the fraudulent activity law is this avoidance issue6
$ 4art counsels him to file the disclaimer and not Beil 'the lawyer(2
$ *he disclaimer is in place2 :ettich really did exercise a disclaimer2 1t the time he executed it- the federal regs had
not caught up with this and the disclaimer is still good2 *his does avoid his estate8s liability for the 5edicare
payments2
$ What happened in this case6 *he disclaimer is good2 *hen the court says that he in effect gave away the money at
a time he was being supported by a state program2 *he court suggests that the interest should be ta+en sub7ect to
claims of the state for any 5edicaid benefits2 4art already said that they would pay the money to the government2
*here is no ruling by the court on it2
$ The 2ederal Regs no/ state that 4o! annot !se a dislai3er to avoid 1ediaid2
1ahone4
$ Decedent shot and +illed by his wife2 Wife is convicted of manslaughter2
$ 4e is survived by wife and parents Wife would normally get the estate over the parents2
$ *he law says that she ta+es- but the court decides differently2 *he court has to figure out a way to not follow the
rule in B*2
$ First- they could follow the law and give the property to the wife2
$ econd- they could use e3uitable powers to say that wife shouldn8t get the interest because e3uity overrules law2
=3uity wouldn8t allow it to go to the wife2
$ *hird- they could allow the legal title to go to the wife but in a constructive trust 'it then collapses and goes to the
next heir(2 *rust is not really a trust but an e3uitable remedy2
$ *hey don8t want to add another penalty to the crime and she is going to have to serve her time as well2
$ *his is only a 7urisprudential difference2 .n the second situation- they scoff the law2 .n the third- they follow the
law but only in a nominal way2 o- they are not disobeying the law exactly2
$ =3uity 7urisdiction 3uestion: *he original court did not have e3uity 7urisdiction2 'probate court cannot get
constructive trust(2
$ 1lso- they don8t want this to happen for involuntary manslaughter type cases2
$ Whipsaw on civil and criminal verdict
.n G1- what if he isn8t convicted but everyone +nows he did it6 'p2 % $ !"#$&$"(
$ .f it is murder or voluntary manslaughter- no inheritance where the standard is beyond reasonable doubt2
$ 0ivil standard is clear and convincing or preponderance of the evidence2 .f they are ac3uitted- we don8t +now if a
7ury would find them responsible under those easier civil standards2
$ G1 tatute: 'a(: .f you are responsible for felonious +illing you don8t inherit2 'c(: <nly the children of the marriage
are able to inherit 'laches(2 'd(: .f you are convicted it is conclusive piece of evidence- but if you are not convicted-
you can establish it by clear and convincing evidence2
.nsurance tatute: !##$)"$&# *hat ta+es care of insurance proceeds
What about 7oint tenancy wP R<6
$ Does she forfeit all interest in the property6
$ Gnder the G,0- you don8t treat the person as predeceasing with these 9oint *enancies2
$ G,0 ,erson can stay in possession but the family gets H of rent during the lifetime2 When you do partition- you
should loo+ at the relative value of the ) estates2 G,0 treats them as tenants in common2
CA9ACIT5
trittmater:
$ >eed least capacity for marriage- but then the next is the will .s this good policy6 5arriage Will 0ontract
$ .n a C- you can harm someone and yourself2 *he possibility of will causing harm is less2
$ .n G1 it is clear by statute- on p2 #%
$ *o have capacity: &( >ature and extent of property; )( ,ersons who are the natural ob7ects of bounty; #( *he
disposition that the testator is ma+ing; %( 4ow the elements of the above relate2 '): >eed to +now the intestate
distribution scheme(
$ 5ust be careful and alert to a will that might be overturned by someone doing something that is unpopular
socially2
09/17/03
CA9ACIT5 ,ont.-
trittmater
$ he disinherited cousins that she didn8t even +now that well
$ *oday- the will would probably be upheld2
$ he is a feminist when feminism is truly an EFF word2
$ 4ow do you protect your client when someone is in the position of being disfavored by the client6
$ When you are trying to decide the capacity- you loo+ at the capacity of the person and not the reasonableness of
the decision2
$ :oo+ at the ability to comprehend as opposed to whether you thin+ it is a rational choice2
p2 #% $ upplement
G1 !"#$%$&&: >either advancing age nor wea+ness of intellect nor eccentricity of habit nor thought is inconsistent with
capacity to ma+e the will2
Wright case in notes: upheld the will where the guy was truly odd2
When you thin+ about capacity we should be thin+ing about the % re3uirements2 .t is a right that is more often honored than
not2
4onigman
$ Deceased left will
$ >o 3uestion of his sound mind under the % re3uirements of capacity
$ *he wife has also helped to accumulate the assets2 4e cut her bac+ from the inheritance because of his belief of
the affair2 *he wife has some property2 4e gave the stuff to the brothers and sisters and nieces2
$ *he will was invalid because it was product of insane delusion2 What is insane about thin+ing that your wife is
running around on you6 *he testimony that established as she carried men up in bedsheets- men running around
the house- etcD=ven if you absolutely believe that she is faithful and he is wrong about it that doesn8t arrive at
insane delusion2
$ What happens in the litigation6 9ury did decide and 0<1 reversed but upreme 0ourt decided that 7ury had
enough evidence but there were other errors and they need to retry it2
$ ,roof of .nsane Delusion: .t is not enough to be a mista+e2 =ven if all of the 7udges agree that he was wrong it
didn8t matter2 1ista$e is not eno!gh to set the /ill aside.
$ ?ou will hold up the court system trying to prove mista+e ?ou cannot caveat a will that was basis of mista+e in
testate2 .t will do so much harm to so many people that the few fair situations aren8t worth the cost2
$ What8s the difference between mista+e and insane delusion6 Tuestion of fact
$ 4ow much of the will does she get6 .n >? she got "KN2
:ipper v2 Weslow
$ Gndue .nfluence: *his is again to a way to have what loo+s li+e a valid will invalid2
$ *=* for G>DG= .>F:G=>0=: &( confidential relationship; )( opportunity; #( motive; %( substituting his mind
for the will of the testatrix2 'he was susceptible to this; there was opportunity; there was motive(
$ he has basic capacity 4ow do we get to the
$ 4ow do we get there6 4e lived next door; he prepared the will; he was her lawyer but he was also related yet
he gets more than he would under intestacy which is not good 'shouldn8t be written in your favor( son is not
always in confidential relationship with mother but attorney is always in such a relationship;
$ G0=,*.@.:.*?- <,,<R*G>.*? 1>D D.,<.*.<> 5<*.B= Q F10*<R *< :<<C 1*2
$ *he real problem is getting to the 7ury2
$ .f there is a presumption of undue influence where drafter gets larger portion- then it would have to have gone to
the 7ury2 Where there is bigger percentage of property and confidential relationship and participation in procuring
the will- there is a presumption of undue influence2
$ .> G1: *estator was submissive may or may not have to be proven *he procuring of the will- confidential
relationship and larger inheritance create presumption2
$ *here is a no$contest clause in the will 'UO( When we read the will- the no$contest clause seems good but the
grandchildren don8t ta+e under the will anyway2
$ .n G1 a no$contest clause is not good unless there is a gift$over ?ou don8t get the money and someone else does2
.t must provide to whom the gift would go2
$ ,G@:.0 ,<:.0? <F ><$0<>*=*: What if @loc+ loo+s li+e she lac+s capacity6 .f you challenge you always
lose- but there is a choice .f there is probable cause to contest then the no$contest clause will not be upheld2 *his
is a better choice2 *he rule .f you contest- the trier of fact decides that there was probable cause- you ought to be
able to contest the will2 G1 still says that they are void without gift$over- but they have not gone to probable cause
test2
:1W?=R 1 @=>=F.0.1R?
$ Rule &2O: 1 lawyer shall notD
$ :oo+ to the benefit Where there is executor 'p2 IO(
5oses S Caufmann
$ 5oses: <lder woman case
$ Caufmann is much more of a ris+ Gay couple has long term relationship2 4is lover and business advisor was left
the entire estate and clear attempt to explain2 Family challenges and wins on undue influence2 imply a product of
bias2
$ 5oses: hould have as+ed about other legal heirs2 <nly as+ed about children and husband2
$ .f you are really concerned about family challenge- what should you really do6 :ifetime gift what is the problem
with that6 ?ou can8t use it anymore; 9oint *enancy with R< more protection; *rust revocable trust or
irrevocable trust2 ,lus the history of undue influence- you can set a trust aside on this basis but a lot harder2 *rust
can be revocable2 <n death- trustee conveys the remainder2 .t is revocable2
09/22/03
eward 9ohnson
$ ) things from this: &( 9ust as you should not write a will under which you receive a substantial gift- the possibility
of it being a tainted transaction is much higher; )(
$ Fees for 0haritable *rustees: Gets about "N but it drops as to the amount of the trust2 *he fee matter is a serious
one2 .t was odd and insensitive of Vagat to increase her own fee in the will2 1lso enables a whole lot of suspicion
over the whole will2 What could she have done to protect the client more6 Gse a codicil to the will .t would have
made the will less challengeable2 1n amendment to a will is called a codicil2
$ .f a codicil is invalid- it will be stric+en but the rest of the will can be upheld2
$ .t is odd to have gone in a drafted a totally different will2
We have been loo+ing at the ways we can invalidate a will that otherwise appears good:
&2 :ac+ of 0ompetencyP0apacity: Gnable to understand the fundamental issues under the will and as a result does not
represent the testamentary intent
)2 Gndue .nfluence: Will was overborne doesn8t represent the testamentary intent
#2 .nsane DelusionP5onomania: 1 part or the whole thing is made under an insane delusion2 >ow the whole will
doesn8t fail only the part that is affected2
%2 Fraud: .t will invalidate a will as in any other transaction2 .t will not be fair or 7ust to let a will proceed on
fraudulent terms2 *he boo+ distinguishes between: FR1GD .> *4= .>DG0=5=>* 1>D FR1GD .> *4=
=M=0G*.<> Ele3ents of 2ra!d: &( Fraudulent purposePscienter; )( 5isrepresentationPFalse tatement; #(
.nducing Reliance; %( omeone is harmed by it2 '>eed &( ,erson who ma+es a deliberate misrepresentation with
the intent to defraud and the defrauded party does in fact rely on it to their harm2 *he testator is defrauded because
their testamentary wishes do not get carried out2 ,roblem 4eir tells < not to draft a will giving property to 1
stating it is not necessary2 4eir will get constructive trust and the intent will be done2 '=3uitable remedies
'constructive trust(: can correct for un7ust enrichment fraud is not essential to get e3uitable remedy(
a2 Fraud in the .nducement:
b2 Fraud in the =xecution
"2 ,R<@:=5: *he will leaves everything to friend because friend told her that the niece had died when she had
not2 * drafts will leaving stuff to friend2 4ow should one proceed6 .s the will good if it was induced by fraud6 .f
the will can be +noc+ed out and she is intestate heir- you can go for challenging the will2 .f she was not the heir at
law- how could she go about it6 0onstructive trust if she is not the heir at law2 @e careful in see+ing your remedy2
Father Divine case
$ ,laintiffs were first cousins 'but not the heirs at law(2 When she died she left most of the estate to Father Divine6
*he court said that this church was a cult2 @e careful to reali/e that when a very wealthy white woman gives that
property to a blac+ church it is li+ely to be challenged here2
$ @rother entered into a settlement agreement 'heir at law( so he was no longer in it2
$ 0ousins said that she tried to change the will before her death- but was unable to because Father Divine was
supposedly the conspirator in her death2
o 4ow do we plead this case6
o 0apacity6 >ope
o Gndue .nfluence6 5aybe
o 5onomania6 5aybe
o Fraud6 ?es2
o omeone shouldn8t be able to benefit from his wrongdoing2 *his is one of the first cases that uses the fraud theory
and imposes a constructive trust2
o .n most cases- fraud theory is not that clear2
o trategy: *hey are trying to have the will probated and assets would go to Father Divine2 *hey are the
wrongdoers2 .f the will is not probated- the property goes to the brother2
*<R*.<G .>*=RF=R=>0= W.*4 =M,=0*1>0?:
$ .n G1- we don8t have to worry about this because G1 does not recogni/e expectancy as an interest at all2
$ 1 few states recogni/e this but it is a mixing of tort and probate law and shouldn8t be allowed2
EGECUTI0N 02 WILLS
5ost wills are formally executed and written and complies with whatever your statutory formalities are2
.n G1 this is the only way to have a good will2
'>on$cupative: *his made on deathbed and not written(2
4olographic Wills: =ntirely written in the testator8s handwriting and do not have to be in compliance with statutory
formalities2 G1 does not recogni/e these2
Why have statutory formalities6 &( ,ublic policy: 4aving formalities Q Witness ma+es someone reali/e that they are
doing something important; help with evidence; help with inappropriate influence;
4.*<R?
First- tatute of Wills: ,ersonal property orally and real property by written
>ext- tatute of Frauds: ,reventing fraud by witnessed writings2 ?ou can devise land by witnessed writing signed
by # people2 ,ersonal property slightly less onerous2
>ext- Wills 1ct: aid that we don8t need ) systems for devising real and personal property2 *his said that it was all
simple2 @ut then it said that you had to have ) witnesses present at the same time2 Will has to be signed by hand2
G,0 'p2 ))I(: 5ust have writing; signed by testator or at the direction of the testator 'only where he cannot sign it(;
must be ) witnesses and they have to witness &( the signing- )( ac+nowledgement of the signature or #( the will itself;
*he witnesses do not have to be there at the same time and do not have to sign in the testator8s presence2
G1 'p2 #" of upplement(: ) witness but must sign in the testator8s presence; will must be witnessed as opposed to the
G,0 which gives # things to witness2
@oth statutes do not re3uire publication *he witness does not have to +now it is a will under G,02 *hey do not have
to tell the witnesses what they are witnessing under both sections2
G1 supreme court determined that G1 has more of a statute of frauds statute instead of wills act state2 .t is <C to have
the witnesses sign first where it is instantaneous2
E*estator8s ,resenceF: When does this occur6 *estator has to see the witness sign2 Do they actually have to see it
signed or does the ability of being able to see it if you wanted to6 .s it enough that they could have seen it2 .f you are
close enough that the testator would have been aware of your witnessing- it is usually enough2 :ine of ight *est:
*estator should with very slight movement be able to see the witnessing2
Groffman
Wife is getting only life estate here2 Widow disputes the will arguing that the will did not meet the technical
re3uirements as to witnesses2
1ttestation clause on the will: :awyer says here ta+e this and sign it2
What is wrong with execution6 tatute re3uires that both witnesses sign together with testator in the same room2 *he
witnesses did not both see the testator8s signature2
Would this be <C in G16 o the will would be <C2
.t is also <C under G,0
.s it possible to witness a will after death 1s long as reasonable time after the death and there has to be a good
explanation- but it does not have to be contemporary2 .n G1- he has to be in the presence so it doesn8t loo+ li+e a post$
mortem witnessing can occur2
p2 )%) to )%I: uggest that we might do a wills practice because it is a guide as to how to do the execution correctly2 *here
are all of these variations- but this will ma+e it good anywhere2
$ 0onflict of :aw: tate of domicile is first choice and state of domicile when person dies and state where will was
created2
$ elf$,roving 1ffidavit: it is the original ) step G,0 self$proving situation2 1nd you simply ought to do it2 .t is
awfully negligent not to do one to help your client2 1ll the affidavit does is ta+e out challenges as to the execution2
>o one can challenge after this2
09/24/03
5.=D 0:1 DG= *< @R<>04.*.
09/29/03
H0L0;RA9HIC WILLS
G1 only recogni/es the formally executed will2
1 number of 7urisdictions recogni/e Q 4olographic Wills Wholly in the testators handwriting
,robably more common in Western tates- but recogni/ed in a lot of other states2
G,0 'p2 ))I$A(: Will is also valid if the signature and the material portions are in the testator8s handwriting
<nly material provisions have to be in testator8s handwriting
ome 7urisdictions may not follow the will8s act rule 4olographic will has to be signed at the end2
ignature is good wherever it appears on the will under G1 law2
9ohnson
Gsed a wills form '&LO& case(
ignature and material provisions had to be in testator8s handwriting
1ll material provisions had to be in writing2
4ere- he used a wills form where it is obvious that he had the intent of ma+ing his will2 *his was not entitled to
probate 'you can8t consider the context of the form(2
Would this will fly in G16 G1 would not allow this because it re3uires ) witnesses
What about under the G,06 *he material provisions would have to be in his handwriting- but you have the
testamentary intent supplied by the use of the form itself
,roblem % on p2 )AK
4usband croa+s and she writes a will stating she wants her stepchildren to ta+e2 *he stepchildren wouldn8t ta+e under
intestacy2 he wants the stepchildren to ta+e2 .s the paper entitled to probate- if we assume that the 7urisdiction
recogni/es holographic wills6 .t seems that the material provisions are written in her handwriting and there is language
of testamentary intent 'this is instructionary to the lawyer to draft a will pursuant to the instructions(2 he didn8t mean
for the document to be her will and she wanted him to draw it up
Testa3entar4 intent is the intent for the do!3ent to :e the /ill, not that it /as /hat she /anted done /ith her
"ro"ert4.
?ou are loo+ing for the document2
Cimmel8s =state
1 letter is entitled to probate2 What is it about the letter that lets it be probated unli+e the note6
.f Eenny thing hapensF: ECepp thisF: *his is sufficient to allow probate2
Cimmel would not have understood the technicalities of the will
0onditional Wills: ays on the face of it .f . die on this trip- .f . die of this surgeryDBery conscious of mortality2
Would this be admitted to probate if she didn8t die then- but &K years later6 *his particular thing didn8t happen2 4ow
important is the introductory clause6 .f it was simply what motivated them to write the will- then the testamentary
intent would be assumed2 5ost often- the conditional will EwillF be probated2
,resumption: ,resumption of testacy which is preferable to intestacy2
REE0CATI0N
Wills are always sub7ect to revocation until the death of the testator2
<ften it is said that a will has no effect until the death of the testator2
*W< W1?:
Writing with formalities: Whatever gets you a will- also can get you a revocation2
,hysical acts: @urning- obliterating .t ta+es the physical act with intent2
>eed 7oinder of act and intention .n every 7urisdiction except G1- a revocation by physical act must be in the
testator8s presence or it doesn8t count2 .n G1- it has to be at the testator8s direction2
*here is a Elost will presumptionF *he presumption is that the will is revo+ed if it is lost2
?ou assume that if the will is torn up that it is revo+ed2
?ou have to rebut this if it is not the intent of the testator to revo+e the will2
0<D.0.:: ?ou can revo+e with writing and formalities ?ou have to consider that the codicil may be a revocation2
*here are ) rules:
When the )
nd
testamentary writing does not contain words of revocation- treat it as a codicil if possible2
Revocation of a codicil does not revo+e the will2 Revocation of a will revo+es all codicils2
,roblems on p2 )AA
.f you have revo+ed a will you have revo+ed all codicils2
.f you have revo+ed a codicil you do not revo+e the will2
.f the will and other document are inconsistent- then you have to ta+e the latter2
4arrison v2 @ird
Duplicate <riginal: @oth were executed and thus both were originals2
.t is better to have only & original out there though. In the o!rse of the o"inion, the ;A o!rt said that there
annot :e d!"liate originals. The first one e7e!ted is the onl4 original2
.n the facts of the case- they +new which one that was executed first2 @ut if the paper is undistinguishable6
4arrison ta+es one of the wills home and the original was retained by the attorney2 *he attorney revo+es the will by
tearing it into % pieces and mailing it to the testator2 he directed him to do that2 G1 is the only state that does not
re3uire the testator to be present2
*he other argument that the will is revo+ed *he will could not be found in the possession of the testator2 *he torn up
pieces were in her possession and now we can8t find them2 *he presumption is that the destroyed the will2
:<* W.:: ,R=G5,*.<>:
G1 tatute: p2 AL .f you can8t find the original- the presumption is that the testator revo+ed it2 .t only ta+es a
preponderance of the evidence to overcome the presumption2
What if you do have a 7urisdiction that recogni/es duplicate originals6
0ommon law rule: if you have duplicate originals- revocation of one revo+es all of them2
.f you have a copy and can prove the contents of the original- you can still probate the copy2
:oo+ to the facts to see if we presume revocation2
*hompson v2 Royall
he wants to revo+e her will and as+s lawyer to revo+e2
Writes on the bac+ of the will that it is null and void and she signs the statement that he is written2
.t is possibly EcancelledF *his is the only place she can go with what they have done with the will2
Why doesn8t writing on the bac+ of a document6 *he phrase must touch the words that are to be cancelled2
*he court should be loo+ing for a revocation since it was her obvious intention- but the 7ust can8t find it2
.f you mar+ the document as cancelled- then there is a stamp right under the words2 .t can only be a cancellation where
the words are mar+ed by the cancellation attempt2
he is starting with 'a( and 'b( on p2 )O"2
10/13/03
tarting on p2 #%": 5ultiple ,arty @an+ 1ccounts
5G:*.,:= ,1R*? 100<G>*
@an+ of 1nna
F10*: =xecutor of estate of Fran+ Whitehead was suing the ban+ that paid out the funds to 0ora Goddard2 *he
funds are in a 7oint savings account2 Fran+ and 0ora are 7oint names on the savings account2 *here is a right of
survivorship provision for 0ora Goddard2
5ost of the litigation in post$death estate issues between family members and family and friends comes up in the
multiple party ban+ accounts2
0omparison between ma+ing testamentary disposition and ma+ing exceptions statutorily2
:ife .nsurance ,olicies: used to be the only exception
5ultiple ,arty @an+ 1ccounts
9oint to survivor- ,<D- 1gency and *rust accounts
!<(=(+=F: G1 @an+ing tatute: p2 AK Definition of Financial .nstitution 'you could guess that essentially this
statute is tal+ing about what we consider formal financial institutions(; <nly # types of accounts 'no agency
account(: 7oint to survivor- ,<D- *rust 1ccounts2 <n p2 A&- the statute provides that the next # statutes are only
relevant when you have a controversy about who gets the money in the account2 *hey are not relevant as to the
liability of the ban+2 <ther code sections govern the liability of financial institutions2 *he terms of the deposit
agreement govern the liability of the ban+ing institution2 !<(=(+=': 9oint account with right of survivorship um
remaining goes to 7oint person unless there is clear and convincing evidence to the contrary2 *he ban+ is off the
hoo+ and is entitled to pay to the survivor on the 7oint account2 'a( and 'c( are the 7oint accounts and trust accounts
which state that the money belongs to the person who it loo+s li+e it belongs to on the account unless there is clear
and convincing evidence to the contrary2 'b(: ,<D 1ccount @elongs to ,<D payee without any clear and
convincing evidence standard2 @asically the situation is that we have a 7oint account or trust account which is
possible to overcome what the documents say and prove that the money in the account belongs to someone other
than the person whose name was on the account2
1>1:?.: =xecutor began to care for him and is claiming for the estate
,laintiff 1rgument: *he 7oint account <nly meant to give her some access to the account2 4e only wanted
her to be an agent of him to handle his financial affairs2
,laintiff has to overcome the written documents and the law2 W: *here is a lot of evidence that suggests
that after he first opened the account he tried to change it and he didn8t effectively do it2
What about the G1 tatute6 .t is the same as saying that even though there is a 7oint account and the rule of
law is that the sums go to the survivor *he family comes in and says that she was supposed to be his agent
and they can prove that2
What +ind of proof do we need to show that it is an agency6 he had no control over it and didn8t use it for
herself2 *he time that is pertinent is the time of creation of the account- but evidence can come from after the
account is opened2
ince it is not clear that she is an agent per se- it helped to see that he tried to change the account2 .t
might be a more critical fact that she did not use the money2
R=B<01*.<> *1*G*=: Does the will in G1 revo+e the account designations6 >o- not in G12 *he
revocation statute under the G,0 '@loc+buster ,rovision that can revo+e outstanding designations(2 ?ou
cannot revo+e the ,<D- 7oint tenancy or trust account under G1 and you can only do it under G,0 where it
revo+es share to ex$spouse2
Why does the statute say that if you are loo+ing at 7oint or trust account- we will let outsiders to the account
come in and prove that it doesn8t really belong to survivor or beneficiary- but not with a ,<D6
*he ,<D is the only one that absolutely doesn8t allow withdrawal during life time by the beneficiary2
,eople establish the other accounts '7oint and trust( for different reasons than to give someone money at
death2
Why is it common to see what we see in G1 where there is no provision for agency accounts6
1gency ends ordinarily at death all the power ends at death2
*his could change- but they seems to perceive that there is too much push in that the agency terminates on the
death2
*W< 51.> ,<.>*
1rrangements that would seem li+e invalid testamentary transfers under common law are valid under the ban+ing
statutes2
9oint- trust and ,<D accounts are testamentary dispositions that can be done outside of the will because of
statutes2
*hey allow for disproof of documents as well
9<.>* *=>1>0.= .> R=1: ,R<,=R*?
9oint *enancy with R<: .ntervivos gift where they become part owners *heir ownership ta+es effect immediately
and not upon death2
0an only get out of this through sale bac+ to you2
Gniform *ransfer of ecurities 1ct: :ets you move securities
?ou have loo+ per statutes to see what we get2
1V allows a revocable ,<D deed to real property2
R=B<01@:= *RG*
Co33on La/.
We have this long common law tradition of giving inter vivos property and the law of gifts says that they are not
conditions and the property has to go to the donee2
.f you want to hold onto the property during life- but you +now who you want to get it at death- then you write a
will2
1t common law- you weren8t able to hold onto the property during life and then ma+e a testamentary transfer of it
outside the context of a will2
Far+as v2 Williams
F10*: Far+as bought stoc+ four times as Far+as as trustee and Williams as beneficiary2 Williams is entitled to
everything when Far+as dies2 Williams has a remainder in fee simple2 *he life estate stays with Far+as2 :et8s
thin+ of it this way- Far+as owned the stoc+ certificates in the first place and then transfers title but he is life
income beneficiary and Williams is remainder beneficiary2
1>1:?.:
*4R== W1? *< G.B= ,R<,=R*?
:ife estate with remainder interest
,ost Death Fee
:egal and =3uitable *itle
Far+as has split it in many ways including time line Far+as holds legal title and e3uitable title- but
Williams has e3uitable title during life too2
4e retained the life income- dividends- right of revocation and rights of control over the property
Williams gets nothing during Far+as8 lifetime *hey are loo+ing at whether there was an interest during his
lifetime2 <therwise- Far+as would be ma+ing a testamentary disposition outside of a will2
*he court is struggling with this idea2
9GDG5=>*: Williams had an interest an e3uitable interest2 .n G1- all express trust must be in writing2 Gnder
the law of trusts- this was fairly formally- but he could have done it by putting note in des+ drawer2 ?ou loo+ for
writing that established transfer2
uppose instead of letter he wrote companies- we find note in des+ drawer stating that he was conveying the
property and was signed by him2 1ll that it ta+es is a writing with no witnesses2 *hat document is valid2 .f it is
valid- something happens when the document is written2
.f you establish a revocable trust and you are trustee and life beneficiary and you +eep a right to revo+e- the rule of
law is essentially ,R<,=R*? W1 *R1>F=RR=D 1* *4= *.5= <F *4= WR.*.>G2
Does a will or a trust trump6 *rust @ecause the trust property had already been transferred to the beneficiary2 *he
+ey is seeing that what the court is saying in Far+as
E=ven though a person retains the power to revo+e- the intervivos revocable trust transfers the property when the
trust is executed so that those property interests move at execution of the document2F
*his is hugely flexible and convenient2
G1 has gone along with this as well2 *here is not a case on record that completely loc+s G1 courts into this but
through ban+ing and the reliance on most people2
*hin+ about this case 1ll of a sudden you get
,ilafas: *here is a lost will rule What happens now in the development of wills law666 .f it is a will substitute- does
will law apply6 0ontract law6 =tcD

10/15/03
Will ubstitutes
0ommon :aw: :ife =states with Remainders; 9oint *enancy with R<
tatutory ,<D ,rovisions: Gniversal in ban+ account statutes 'must be in the statute though(
pecial 1cts: Gniform *ransfer of ecurities ,<D designation on stoc+ certificates '*<D *ransfer on death(
Revocable trust: =nd run all rules *ransfer at death without formalities we have been tal+ing about2
,ilafas
.n &LO)- he made himself trustee of his .B trust for the benefit of O >,< and " children
4e retained power to invade the corpus and receive the income 'li+e a retained life estate(2
4e is +eeping the economic benefits of what he is receiving2
4e +ept power to amend and power to revo+e2
.n &LOA- he made will and amendment at the same time2 *he will made certain be3ueaths and excluded former wife and
left residue to the trust 'includes some specific devises(2
*hey couldn8t find the will at death2 1ttorney said that the original went to the decedent2
<ne of the sons that was left out loo+ed for the will2 1s a result it was not found2
:<* W.::: ,resumption that if you cannot find the will it has been revo+ed where it was in his possession before
death2
<ften- the very person that has access to the place the will should have been found Ecan8tF find the will2
*his does not create a presumption against it
.t is still up to the trier of fact2
*he will is considered revo+ed2
What is the effect6 >o effect on the trust property already in the trust2 5ost of the property is in the trust2
*hey then say that a lost trust should be treated in the same way as the lost will2
*here is no rule of law li+e that for a trust under statute li+e there is for a will2
1rgument: @ecause revocable trusts are used as substitutes for wills- they should be treated li+e wills2
@ecause he put in the trust that he can revo+e by writing- that didn8t happen and as a result it is not revo+ed2
*here is no lost trust presumption2
.f trust had no life except to be pour$over for residuary- then it might be a will substitute consideration- but since it had
a life of its own during his life- then there is no will substitute argument here2 *4=R= 51? @= 1 :<* *RG*
,R=G5,*.<> W4=R= .* <>:? 41 1 0<R,G 1* D=1*42
tate treet @an+:
ettlor created an .B trust with powers to amend or revo+e
0onveyed to the trust some capital stoc+ of " closely held corporations
4e no longer is owner but now he is trustee and there are other beneficiaries described in the trust2 4e goes to the
ban+ and they give him a loan based on his controlling interest in the corporations and loo+ at history of finances2
4e never tells the ban+ that he has put the interest in the trust2 *he ban+ officer doesn8t ta+e any security for the
note and doesn8t ever as+ about the actual control of the corporation2
*he principal of the loan had not been paid and the estate was not large enough to cover the loan because the property
was in the trust2
1rgument: Read this as a unified estate plan 1pparently he wanted the 7ust debts clause to apply to the current debt2
*hey will hold the property in trust and use it for the benefit of the beneficiaries2
During his life- they would have had access to the assets in the trust2
4e has unlimited power over the trust during his life2
@eneficiary 1rgument: When he died- he lost power to revo+e the trust and is no longer trustee2 o the title is in the
beneficiaries2 1s a result- they argue that beneficiaries are not responsible for the debt2
.f you have a situation where a person ac3uires the assets themselves and then puts them in revocable trust with
retention of control and have not changed their position- on their death- those assets are treated as available to the
creditors2
,roperty :aw 1rgument: *here is no title in the decedent only in the beneficiaries2
<riginally- the power to revo+e did not survive the trustee and was not available to his creditors2
*his case is really the holding now2
*he assets are available to the creditors notwithstanding as a title matter they loo+ li+e the beneficiaries2
,G@:.0 ,<:.0?: *his discourages people from trying to avoid debts at death by putting everything in revocable truts
that would have been untouchable by the creditors2
.f they had said that property laws rule- then the creditors could not attac+ the assets of the probate2
What about 7oint tenancy Why shouldn8t they too be ruled li+e this6
4arder to get out of than the revocable trust
,lus you don8t have exclusive right to control
hould there be a 3uestion on the exam W= >==D *< 1RGG= .* @<*4 W1? 'flow by title vs2 it is in estate
because of retention of power during life2
90UR(0EER WILLS
.n both cases we loo+ed at- wills that are written to pour$over residuary into trust2
.f the trust instrument is in existence before the will is written and will says it wants the pour$over to go into the trust-
by doctrine of incorporation of reference- it wor+s2
.f the trust is amended- then he is getting a gift in writing that is not witnessed execution of invalid testamentary
disposition
G*1*1: 1llows trust to be unfunded and treated as having a life2 Regardless of the si/e- etcDit will be a trust2 *he
other big change from common law the trust instrument can be executed before- concurrently or after the will2 *he
trust is amendable and revocable and therefore there is incredible flexibility2 'E<r afterF is an amendment which G1
did not adopt(2
G1 is nearly identical to G,0 except for Eor afterF *o have a revocable pour$over trust- you must right it before or
concurrently with the will2