BASIC ANALYSIS FOR INTESTACY 1.) Which law applies?

o Personal State where decedent domiciled @ time of death o Real State where property located 2.) Who are the heirs? o UPC 1-201 Heir = Persons entitled to property of decedent under intestate laws of succession Spouse Marriage requirement (no cohabitants) Common law If jurisdiction recognizes + meet jurisdictional requirements Gay marriage Children Adopted (UPC says no rights if adopted after age 18) Once adopted, right as to biological family terminated and vice versa. Half-blood Treated same as whole-blooded After-born 2 groups: o Conceived before/born after (UPC 2-120 only recognizes this group) Presumed heir if conceived w/in 10 mos. of decedents death o Conceived after Must show: Genetic relationship to decedent Decedent affirmatively consented to conception/supporting Non-marital (Q is whether can inherit from genetic father) o UPC 2-115(5) - Genetic dad if sperm fertilized egg of genetic mom o UPC says can inherit if can show paternity (but doesnt tell how) Surrogacy o UPC 2-121 Look @ contract + intent, not at who carried/blood Parents rights turn on existence of parent-child relationship 3.) Is there a surviving spouse? o What is a spouse marriage requirement Spouse = Common law, if jurisdiction recognizes + requirements met Spouse Cohabitants o Yes 100% if: Decedent no surviving issue or parents, or Decedent does have surviving issue, but theyre also spouses kids and neither decedent nor spouse has kids outside the marriage If not entitled to 100%, then: If no surviving issue, but surviving parent: o Spouse gets first $300K + remainder o Parent gets remaining 1/4 If decedent has surviving issue with spouse + spouse also has surviving issue w/ someone else: o Spouse gets first $225K + remainder o Decedents surviving issue get other by representation If decedent has surviving issue w/someone else: o Spouse gets first $150K + remainder o Decedents surviving issue get other by representation o No

100% to decedents issue by representation If no issue, then 100% to decedents parents If no issue and no parents, 100% to descendants of decedents parents by representation (decedents siblings, aunt/uncles, etc.) If no issue, parents, or parents descendants, then split 50/50 between decedents surviving maternal/paternal grandparents If none of above, does decedent have surviving steps? Yes They split 100% equally by representation No Escheat to state 4.) Who is taking by representation? o Old Per Stirpes o Go to first generation and divide equally among both living and dead descendants If any dead (predeceased descendants), the first generation of that persons descendants divide equally only that persons share of original decedents estate If that person has no lineal descendants, divide her share equally among the others in her generation o Modern Per Stirpes o Go to first generation where 1+ living and divide equally among that generation o Per Capita Per Generation UPC 2-106 o Go to first generation where 1+ living and divide equally among that generation If any in that generation predeceased decedent, then the total remaining once living descendants get their share is divided equally among predeceased descendants next generation of surviving descendants 5.) Is anyone barred from their share of the inheritance? o UPC 2-104 Survivorship Requirement 120-Hour Rule o UPC 2-801 Disclaimed Inheritance o UPC 2-803 Slayers Statute Preponderance standard (dont need criminal conviction) o Unworthy heirs (heirs who abused/abandoned) o Aliens o UPC 2-109 Advancements WILLS Is the will holographic or formal? UPC 2-502 Holographic Wills (note most states do not recognize holographic wills) o Document that does not comply with normal formalities is valid if: Signature and material portions are in testators handwriting Note - Does not say where on document signature must be located Can show by extrinsic evidence testator intended document to be his will Extrinsic evidence may include portions that in testators handwriting Note if formal will, still need to see if any holographic codicils UPC 2-502 [comments]. o Codicil supersedes will to extent of any inconsistencies between the two documents FORMAL WILL UPC 2-502 - Was the will validly executed? o In writing o Not reqd to be on paper, just some sort of medium that marks/signature can be detected o Signed o By testator/proxy, in testators conscious presence, by testators conscious direction. Testator signs first, then witnesses, but if all sitting around table signing, okay. o UPC 2-502(A)(2) Electronic signature signature o Witnessed Requirements to be a witness: competent + no criminal convictions. No age requirement. Disinterested Witnesses/Purging Statutes (UPC 1990 amendments got rid of purging statutes)

Interested witnesses can sign, but can only get what would get under intestacy Applies only if the interested witness is necessary for the wills validation. 3 approaches for presence o Line-of-Sight Testator would be able to see witness sign if Testator looked o Conscious Presence -Testator comprehends (see, hear, etc.) witness is in act of signing (must be able to sense that witness is in act of signing) o UPC 2-502 Witness requirement met by either of the following: Notarized At least 2 people, each of whom signed w/in reasonable time after they witnessed either the signing of the will or the testators acknowledgment of that signature or acknowledgment of the will. o Reasonable time defined in UPC (doesnt say it has to be while T still alive) 2.) If not properly executed, how does jurisdiction view deviations from execution formalities? Substantial Compliance (Majority) Strict Compliance UPC 2-503 Harmless Error If not 100% Ct. acknowledges technical compliance Even though not in substantial compliance, entire not followed, but document adequately compliance, can be upheld can show document invalid. reflects testators intent, and there is by clear/convincing evidence that this clear/convincing evidence of substantial was testators intent and testator compliance intended document to be his will (but court wants to see some compliance) Very subjective 4.) Are there any outside documents that relate to the will in some way? Integration o All papers present @ execution + intended as part of will = read together as 1 document o Can be used to probate a document not executed with requisite formalities Republication by Codicil (Updating a Will) o Publication - Ts indication to witnesses, by words/conduct, that the document = his will o Republication Subsequent document executed with testamentary formalities, that either expressly/implicitly reaffirms the document it is amending A will is treated as re-executed as of date of codicil Can only republish a will that was validly executed in the first place UPC 2-510 - Incorporation by Reference o Writing in existence @ execution may be incorporated by reference if language in will: Manifests this intent, and Describes the writing sufficiently to permit its identification Contracts Relating to Wills o If there is a contract, contract law controls o UPC 2-514 The only way to show existence of contract relating to will is: Provisions in the will stating material provisions of the contract Express reference in will to contract + extrinsic evidence proving contract terms A writing signed by testator evidencing the contract o UPC 2-514 Execution of joint/mutual wills presumption of contract not to revoke 5.) Is there a way to contest the will? Testamentary Capacity o At time of execution, testator must be capable of knowing/understanding in general way: Nature/extent of his property Natural objects of his bounty (proposed testamentary disposition/who gets what) Legal significance of act of signing will

Presumption of testamentary capacity only way to rebut is to show testator was declared incompetent @ some point during lifetime Insane Delusion o False belief/perception of reality to which testator adheres despite all evidence to contrary o Majority False conception/belief Even if some factual basis, reasonable rational person could not draw same conclusion Causation Contested will = product of insane delusion (but for test) o Minority False conception/believe If any factual basis, then insane delusion Causation May have influenced what testator did in will Undue Influence (Mind control) o May not necessarily be an evil motive o 2 requirements: Coercion Testator forced to do something against his will. Red Flags o Condition of testator was he susceptible to undue influence? Age, lived alone, isolate, no family, weak-willed/minded o Fiduciary relationship/relationship of trust/confidence Caretaker = confidential relationship o Evidence testator was scared of alleged wrongdoer o Motive Did alleged wrongdoer have anything to gain? o Known character of alleged wrongdoer o Secrecy o Haste o Alleged wrongdoer setting up/sitting in on appointments o Relationship outside of social norms Causation But for Red flag evidencing causation: o Pattern that changes suddenly (shift in attitude toward others) o Strange/unnatural disposition Duress Overtly coercive Undue Influence + Physical Force (consider same factors as UI) o Contestor must show: Expectancy on part of contestor Intentional interference with expectancy Causation Fraud o Knowing/Purposeful Misrepresentation by 3P + Detrimental Reliance by Testator o Fraud in the Inducement T knew it was a will, but was lied to as to the terms Damages/constructive trust o Fraud in the Execution T did not know what he was signing was a will Complete invalidation (because no testamentary intent) Tortious Interference w/Expectancy (not grounds for contesting wont invalidate, just get dmgs) o Tort claim brought by 3P once estate has already been closed o Same elements as duress Avoiding Will Contest o No-Contest Clause Says if beneficiary unsuccessfully contests, treated as predeceased 6.) If there was a valid will, was it revoked if one of the 5 ways a will can be revoked? Revocation by Writing or Physical Act o UPC 2-507(a) 2 ways to revoke a will: o

Lost Wills o Rebuttable presumption of revocation if will cannot be found @ testators death o Can be rebutted by showing Will was last in possession of someone other than testator (no intent) + Prove what was in the will (usually done by photocopy) Revocation by Operation of Law o UPC 2-802 Divorce decree revokes any provisions relating to ex-spouse If re-marry your ex, provisions can be revived if not otherwise revoked. o UPC 2-301 - Omitted Spouse o UPC 2-302 - Omitted Children Dependent Relative Revocation (DRR) + Revival o UPC 2-509 Upon revocation of Will #2, Will #1 revived if testator so intends. Show intent by circumstances or oral declarations by T 2-509(a) Revocation of entire will = presumption against revival 2-509(b) Partial revocation (codicil) = presumption of revival o @CL - If T revoked prior will b/c of mistake of fact/law, revocation = ineffective Must show by clear/convincing evidence that but for the mistake, the testator would not have revoked the prior will. Rationale No revocatory intent b/c basis for revocation was incorrect Remedy is not to revive prior will, but probate the one T tried to revoke If Ct. decides not to probate the most recent will, then intestate. In states w/o revival statutes, DRR = only way to revive any will. 7.) If valid, properly executed, & not-revoked is there a question as to substantive terms (disposition)? Ambiguities & Mistakes 2 types of ambiguity: Patent Facially ambiguous No way to determine intent w/out extrinsic Latent When terms of will applied, you find outside fact that creates ambiguity o Traditional Rule 4 Corners/No Extrinsic Evidence Rule If ambiguity, can use extrinsic evidence to resolve according to testators intent. If no ambiguity (i.e., a drafting mistake, but words the drafter mistakenly used are not ambiguous), extrinsic evidence not allowed to disturb plain meaning. o UPC 2-805 Scriveners Error Rule Permit extrinsic/reformation if show by clear/convincing evidence that: It was a mistake, and Ts intent + terms of doc. were affected by it Changes in Property After Execution of Will o What happens to the property depends on what type of gift it is: Definition Doctrine Traditional/CL Rule Modern Trend/UPC Specific item, left to Ademption by Irrebuttable Reverses CL Specific particular person extinction (property no presumption of presumption entirely; Devise longer exists @ death) revocation look to intent, b/c more in line w/testators likely intent Testator intends to Advancement If testator made lifetime Lifetime gifts (to General confer a general gift to his child, anyone) do not count Devise benefit rather than rebuttable presumption against inheritance specific devise (can of advancement absent written evidence be satisfied by any showing contrary intent

Writing Execution of subsequent will, expressly or by inconsistency Physical act, so long as Act performed by T with intent/purpose of revoking prior, or Act performed in Ts conscious presence/direction Can cancel regardless of whether cancellation touches any words on will

asset in the estate) of testator Residuary Portion of estate not otherwise devised Devise o What if estate has insufficient assets to pay off debt + satisfy gifts? Doctrine of Abatement Categorize the gifts Satisfy all specific first, then go to general. (If not enough under either one, pro rate). o What If There is a Devise That is Subject to Debt? Common Law Presumption that testator intended devisee to take the property free/clear, so estate pays off the debt UPC/Modern Trend Presumption testator knew the property was subject to debt Changes in Beneficiary After Execution of Will o Lapsed Devises If beneficiary predeceases testator, the gift is void (the gift fails) If failed gift is general/specific, falls into residue. If failed gift is residue, passes through intestacy. 2 safe harbors for lapsed gifts Anti-Lapse Statute o Actually just redirects lapsed gift to someone else o Presumes testator would want it to go to original devisees issue o Applies only if 2 requirements met: Original devisee is someone to whom statute applies Original devisee has surviving issue Class Gifts o 4 factors to determine whether something is a class gift: How devisees described (if specific names, usually ) How gift is described Whether all devisees share common characteristic Overall testamentary scheme o Does not have to include every member of class to = class gift NON-PROBATE TRANSFERS & WILL SUBSTITUTES 1.) What is the non-probate instrument? UPC 6-101 Any/all Ks = valid, non-probate assets (dont need formalities in execution) UPC 2-804 Divorce revokes dispositions to ex-spouse in governing instruments including revocable inter vivos trusts, life insurance policies, joint accounts, PoDs, etc.) Payable on Death Ks Powers of Attorney Healthcare Documents Life insurance, pension General Power of Attorney: Healthcare PoA Valid until one of 2 plan, etc. Invalidated in event of incapacity situations: (1) Brain-dead Revocable (2) Terminally ill and going to die w/in reasonable time If designated Durable Power of Attorney: Advance directive/living will Takes beneficiary, or if Effective even at/during incapacity over once HPoA invalid beneficiary predeceases, -Springing Effective only @ incapacity *Does not name an agent, just says who payable to estate as -General Effective until death or express pulls the plug. probate asset revocation *Docs = legally bound by living will 2.) If the instrument is a trust 2 ways to create a trust o Oral declaration of trust Only allowed for personal property (SoF) o Writing (transfer of title/deed) Required if testamentary transfer of real property (SoF)

Does it meet the 5 requirements for creation of an effective trust? o Intent Dont need to use the word trust to make a trust, just need to show intent. o Trust Property (Principal) Trust must be funded Can be any type of interest Money, stock, future profits, interest in LLC, assignment interest, leasehold interest, real estate o Ascertainable Beneficiaries Must be at least one ascertainable beneficiary o Split of Legal & Equitable Title Trust = bifurcated gift Separation of benefits from burdens Beneficiary gets equitable/beneficial title Trustee holds legal title for benefit of beneficiary (management) o Affirmative Duty On Part of Trustee Dont need to use the word trustee just fiduciary relationship + active duty 3.) Has there been a breach of fiduciary duty? UTC 815 Gives trustee same authority over trust assets as an unmarried, competent person would have over his own assets o Subject to 2 limits Terms of trust document UTC 816 Fiduciary duties 2 fundamental duties under umbrella duty of GF o Care/Prudence Did trustee act as a reasonable/prudent trustee should? Objective standard - reasonable investor, not reasonable person: Look @ assets as a whole, and invest accordingly (e.g., prudent investor would diversify) Cannot rely on advice of attorney as defense o Loyalty Did trustee act in the best interest of all beneficiaries? Did the trustee engage in self-dealing? Action that is at all self-benefitting = presumption of breach of DoL. If he engaged in self-dealing, can he assert either of the 2 defenses? The terms of the trust authorized/permitted/directed it All beneficiaries either consented or ratified Has the trustee breached any of his other fiduciary obligations? o Impartiality Due regard for interests of all beneficiaries, both present and future o Duty to inform Educate beneficiaries as to whats going on with the trust o Duty to collect/protect trust property If there has been a breach of fiduciary duty, are there any co-trustees who may also be liable? o Cant turn blind eye - Duty to speak up or resign Std. = actual/constructive knowledge 4.) Is there a dispute as to rights to distribution? Who is asserting their rights to distribution? o Creditors May have a right to has already been distributed to beneficiary if there is no spendthrift clause Spendthrift clause protects mandatory distributions from creditors No beneficiary has any ability whatsoever to assign/sell/transfer trust rights o UTC 503 Exceptions to spendthrift clause Child support + alimony o Beneficiaries Look to the terms of the trust: Does trustee have mandatory or discretionary duties? o If mandatory, did he do what trust required? o If discretionary, what is the scope of his discretion? Sole/Absolute Beneficiaries lose.

 Limited (Discretionary w/guidelines) 5.) Is someone seeking to modify or terminate the trust? UPC 410(a)-(b) Action to modify/terminate can be brought by T, B, or court First, make sure there is someone representing unborn/unascertained beneficiaries. o UTC 303(6) Parent can represent minor/unborn if no conflicts of interest o UTC 304 Co-beneficiary can represent if substantially identical interest What type of trust is it? o Inter vivos revocable trust can be modified by settlor @ any time o Irrevocable trust Do trust terms name trust protector/committee with power to modify/terminate? If so, they can make substantive and administrative adjustments, if o Settlors descendants + their spouses benefit from any substantive change; and o The change does not extend periods for vesting; and o [get other one from ppt] If no protector UTC 411(a)-(b) If the modification/termination is in the best interests of all beneficiaries, court may modify/terminate if o Settlor and all beneficiaries agree, or o Beneficiaries agree but settlor is pissed Unless the modification/termination is inconsistent with a material purpose of the trust (in which case settlor must agree) If everyone agrees but cannot show it is consistent with settlors intent, then need to show one of these other things: o UTC 412 Change of circumstances or inability to administer effectively Cant simply argue the change benefits the Bs Must be able to show necessary to effect settlors intent o UTC 414 No longer economical Most states assign a $ amount o UTC 415 Need to correct mistake Must show by C&C evidence its necessary to effect intent o UTC 416 Tax objectives Necessary to achieve settlors tax objectives Change must not be contrary to settlors probable intentions Ct. may give the modification retroactive effect o If some beneficiaries are holding out, may still be able to if Trust could have been modified if all had consented, and Interests of non-consenting Bs = adequately represented Is someone trying to remove the trustee? First, look at the terms of the trust: o Who is the current trustee(s)? o Who is the successor trustee(s)?

o Do terms require specifics for successor trustees? o Does document vest someone w/power to remove trustee? If terms of trust are silent, go to UTC 706(b)(4) o Settlor, co-trustee, Bs, or court may bring action to remove o Court may remove trustee if Trustee has committed serious breach of trust Lack of cooperation among co-trustees which substantially impairs trust administration Unfitness, unwillingness, or persistent failure by trustee to administer, and removal = best interest of Bs If substantial change in circumstances has occurred, or if removal is requested by all beneficiaries, remove if Removal = best interest if beneficiaries, and Not inconsistent w/material purpose, and Suitable co- or successor trustee is available RESTRICTIONS ON POWER TO DISPOSE OF PROPERTY AT DEATH Are there any potential restrictions on Testators right to dispose of his property at his death? First look to see which property system the jurisdiction follows: o Separate - Old English CL (41 states) o Community - Marriage = partnership everything acquired in marriage divided 50/50

SPOUSAL SUPPORT RIGHTS

Social Security Employment Pension Plan Homestead -Surviving spouse does not get to choose who gets SS benefits -If divorced but remarried, required more than 10 years -If ERISA plan, can go only to spouse -Public policy Contd income springing to spouse -Protects primary residents (spouses/minors) from creditors -Limited to amount house is worth -UPC 2-402 Homestead allowance is $22,500: If worth $22,500 or less and subject to creditors, spouse/kids can live in it until their death -Appliance/car provision (tangible personal property) -Protected from creditors up to $15K -Amount estate will allow survivor to receive during probate (Shuman has never seen this) -Basically was a life estate in a portion of the property, but these no longer exist -Someone = omitted spouse when will predates marriage and does not include spouse -UPC 2-301 Omitted spousal share = intestate share -Amount surviving spouse is entitled to solely by virtue of being surviving spouse Surviving spouse can reach some % of probate and non-probate as part of ES: o Can reach revocable trust, but cannot reach irrevocable trust created by 3P - 2 theories for allowing elective shares: UPC Viewed as support for surviving spouse (in these states, only spouse can claim) Other Jurisdictions Viewed a benefits of the partnership (in these states, if surviving spouse incompetent or dead, guardian/estate /court can make ES claim on his behalf) -Must make affirmative claim against the estate (usually made when T leaves spouse out) Only requirement is must be able to show marriage to decedent @ time of death SOL very short E.g., the later of: 8 mos. from DOD or 6 mos. from start of probate

Personal Property Set-Aside Family Allowance Dower & Curtsey Omitted Spouse Elective (Forced) Share

-Can satisfy elective share claim by paying outright or putting in trust for spouses benefit, to which they are entitled to only the income -Main issue is what amount surviving spouse is entitled to (E.g., in SC, ES is 1/3 estate: Can only make ES claim for the different if they do not leave you at least 1/3) -Can waive right to ES (pre-nuptial/post-nuptial K)

Calculating Elective Shares UPC 2-202 (1969) Still followed in most states Spouse entitled to 1/3 of augmented estate: o AE = Probate + some non-probate/inter vivos made w/o consideration during marriage: (1) Any transfer under which decedent retains right to possession/income (e.g., trust) (2) Any transfer decedent can revoke/invade/dispose of principal for his own benefit (3) Any transfer in JT w/someone other than the surviving spouse (4) Any transfers made w/in 2 yrs. before death exceeding $3K per donee per year (5) Property given surviving spouse during life, including LE in trust, and property recd by spouse @ death derived from decedent, such as life insurance and pensions To calculate elective share, add up all and divide by 3, then subtract anything under #5 UPC 2-202 & 2-203 (2008) New rule (not followed in most states) UPC 2-202 ES = 50% of value of marital property portion (MPP) of augmented estate UPC 2-203 Calculating MPP Marital Property Portion = [(Ds P/N txrs to spouse)+(Ds P/N txrs to others)+(Spouses P/N txrs to others)] Multiply by % pertaining to number of years married: Less than 1 year 1 year, but less than 2 years 2 years, but less than 3 years 3 years, but less than 4 years 4 years, but less than 5 years 5 years, but less than 6 years 6 years, but less than 7 years 7 years, but less than 8 years 8 years, but less than 9 years 9 years, but less than 10 years 10 years, but less than 11 years 11 years, but less than 12 years 12 years, but less than 13 years 13 years, but less than 14 years 14 years, but less than 15 years 15+ years 3 6 12 18 24 30 36 42 48 54 60 68 76 84 92 100

Then credit back [(Ds N-P transfers to spouse + spouses property) / (N-P transfers to others)] o (Because that is property already owned by surviving spouse)