Trusts And Estates-Ga Laws

Front 1

GA Slayer's Statute- OCGA- 53-1-5

Back 1

OCGA- 53-1-5,1.)broader than the UPC, and shorter than the UPC, 2.)covers persons who both conspire to kill and those who actually kill, (UPC deals directly with the killer)3.) Doesn't cover involuntary manslaughter (maybe a concession to decedent's intent and no need to deter something that is involuntary) 4.) Killer is treated as having pre-deceased the testator

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UPC 2-803 (g)- Slayer's Statute-

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1.) Requires a felonious and intentional killing, and also a judgment requiring "criminal accountability" 2.)Criminal acquittal doesn't mean innocence- get another chance in a civil proceeding in front of the probate court 3.) if someone is guilty in a criminal context that is enough 4.) need a preponderance of the evidence standard

Front 3

release of expectancy

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the forfeiture or release of his intestate share by a decedent before the decedents death- must be accompanies by fair consideration (release is binding upon person's heirs)

Front 4

UPC-1-201 (10)- Def. of Devise

Back 4

testamentary dispositions of real or personal property by will

Front 5

OCGA 53-4-10- age of capacity to make a will

Back 5

1) To make a will, you have to be 14 or older, unless there is something that disables you, a lack of capacity or undue influence

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OCGA 53-4-11- Def of capacity

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Capacity must be a "decided and rational desire" as to the disposition of property
It is a legal standard, not a medical standard- An incapacity to make a contract may coexist with the capacity to make a will
There may be lucid intervals during insanity
Neither advancing age nor weakness of intellect nor eccentricity of habit or thought is inconsistent with the capacity to make a will.

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Lucid Interval Principle

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Even if there was some kind of adjudicated incapacity of T specified, but if T executes will during a "lucid interval" the will will be upheld.

Front 8

UPC-2-501- Capacity

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UPC 2-501 “Sound mind” formulation-
sound mind means able to formulate a picture of his property, the natural obj of bounty, and develop a plan of disposition. (trad’l approach)

Front 9

UPC §2-501 - Age to be of capacity

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UPC §2-501 and almost all non UPC statutes set 18 as the minimum age. The age requirement is purely a physical requirement.

Front 10

Insane Delusion

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A belief that has no factual basis. Must be related to the disposition in the will to invalidate the will. (but for delusion, will would say something else)

A rational belief must have "Foundation in Facts" - if you can track what seems to be a delusion to some foundation in the facts, it's NOT an insane delusion. - not just a mistaken conclusion

Insane delusion happens when testator has been presented w/ evidence to the contrary and instead of accepting like a normal person would do under the circumstances, persists in delusion- Ex. Doughtery v. Rubenstein-

Front 11

What are two ways to contest a will?

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1.) allege lack of capacity/ insane delusion or
2.) undue influence

Front 12

What are the elements of undue influence?

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1. A T who is susceptible to UI, 2. Beneficiary w/ the opportunity and disposition to influence T, 3. Evidence of the result showing the effect of such influence

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A presumption of undue influence arises when:

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1.) when there is a confidential relationship,
(2) then T changed their will in favor of that other person,
(3) And especially if there is a presence of suspicious circumstances- which is rather vague-Look to specific facts
(Haynes v. First National State Bank of NJ- attn was directed by daughter...)

Front 14

A confidential relationship- OCGA §23-2-58

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Purports to define confidential rel’shp, but is buried in equity code and is never cited in will cases.
-“controlling influence” or “mutual confidence” where “law requires utmost good faith”

Front 15

What are suspicious circumstances that in connection with a confidential relationship give rise to a presumption of undue influence?

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If testator leaves money to non-natural heirs of bounty, and unprecedented change in will, live-in relationship with the person whom the will is changed in favor of, whether or not T has independent counsel...

Front 16

OCGA 53-4-68 -in terrorem/ no contest clauses

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1) (a) Conditions in a will that are impossible, illegal, or against public policy shall be void.
2) (b) A condition in terrorem shall be void unless there is a direction in the will as to the disposition of the property if the condition in terrorem is violated, in which event the direction in the will shall be carried out.
Why this way?
Most likely because we have a presumption against intestacy- and we want to make sure all the assets are sent to someone- a simple residuary clause would probably not be enough to overcome GA's distaste for no contest clause
b) Ex. of OK- "Bob gets 10K, but if he contests the will, the 10K will go to Charity X"

NOTE: Contest about formalities is probably ok

Front 17

n terrorem/No contest clauses- generally

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If anyone contests the will, you will loose your bequest under it
----But if the amount left is de minimus, then there really isn't a reason to not contest the will, b/c the contestor won't lose anything (like in Haynes)

Front 18

Three amounts possible under no contest clauses

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1) If she chooses not to contest the will
2) If she contests the will and it proves unsuccessful
3) If she contests the will and the contest proved successful-

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Fiduciary Duty and Attns

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a. A fiduciary relationship (like attn/client relationship) exists when one has a special confidence in another so that the latter, in equity and conscience is bound to act in good faith

Common Law Duty- duty extends ONLY to the testator, not to the potential heirs (privity barrier)
---Only about half of states follow (TX, Barcello v. Elliott) and half use a limited exception (Barcello dissent)

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Limited Exception to no-duty Rule for Attn liability for poor drafting

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Two Definitions of potential liability found in Barcello v. Elliott Dissents
1) Cornyn approach- Broader definition- if there is proof that the testator intended money to be left to someone, even if they aren't listed in the will, as long as this can be proven they can have standing to sue - extrinsic evidence is allowed
2) Spector approach- Narrower definition - standing needs to be limited to intended beneficiaries of the will, no extrinsic evidence is allowed
---Proof standards are much higher here

Front 21

Three types of wills (execution/creation)

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Formal/written and witnessed
Holographic- handwritten by testator and not witnessed
noncupative (oral)- not recognized by GA

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GA- Holographic Wills

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GA does not recognize holographic wills and has no borrowing statute

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UPC- 2-502- Req for will

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Requires that both the signature and material portions of the document must be in testator's hand writing

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General Requirements for a Holographic Will

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(1) Operative words legally sufficient to create a will (I bequeath, I give, I devise, etc.)
(2) Identification of property
(3) All dispositive provisions must be in the testator's handwriting (like I give, etc- stuff not relating to administrative provisions)

(Zhao v. Wong- can strike words to make intent, but cannot add them)

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What formalities are typically required for a will?

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There needs to be a writing
witnesses are usually needed (of a minimum age)
Signatures- of testator and witnesses

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What is an attestation clause?

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Included in will- diff for each state- it recites the elements of legitimate will signing (that testator seemed competent, he/she freely signed will, and the witnesses knew they were signing a will
--Usually put it on the same page as the testator's signature

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UPC- 2-502 (a)- Req. for will formalities

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1.) a writing 2.) a signing or mark by the testator (or a mark by someone else on the testator's behalf with the direction of the T and in the T's presence) and 3.) a witnessing by at least 2 disinterested parties

However, if will does not comply with these requirements, as long as there is "clear and convincing evidence" that the decedent intended that the document be his will, it will ok

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How are illegitimate kids treated under the UPC?

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Kid can inherit from both parents...need more info- definately the mom


Common- law- Illegitimate children were not allowed to be adopted by either parent, and could not inherit through either parent

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How are illegitimate children treated in GA for intestate shares?- GA -53-2-1

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Kids born out of wedlock can inherit through mom,
Can also inherit through father if born out of wedlock if
----there is a court order, he acknowledges it, signs the birth certificate, or other clear and convincing evidence

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OCGA 53-2-3- When can a parent take from a child born out of wedlock?

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a) Mom always can
b) Dad can if there is an establishment of paternity by the same standards

Front 31

OCGA -53-2-1- Halfbloods

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(2) The half-blood, whether on the maternal or paternal side, are considered equally with the whole-blood, so that the children of any common parent are treated as brothers and sisters to each other.

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OCGA 53-2-27- DNA testing

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DNA Testing for parentage can be ordered from "any party in controversy" AND and disinterment can be ordered as well- this is a more modern approach

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OCGA - 53-2-1- Abandonment and inheriting issues

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d) Except as provided in Code Sections 19-7-1 and 51-4-4 for the right of recovery for the wrongful death of a child, when a minor child dies without a will, a parent who willfully abandoned his or her minor child and has maintained such abandonment shall lose all right to intestate succession to the minor child's estate and shall not have the right to administer the minor child's estate.
Person asserting abandonment must file a motion with the probate ct, and then also overcome the burden of proof by clear and convincing evidence

Front 34

Under Uniform Parentage Act- who has standing to bring a paternity suit?

Back 34

Sect. 602- The only people with standing to bring a suit are
-----The child, mother of the child, man whose paternity of the child is to be adjudicated, a support enfocerment agency, and authorized adoption agency, a representative of an incapacitated person, or an intended parent

Sect. 607- Time Limits
----Any such action must be brought no later than 2 years after the birth of the child

Front 35

Under GA law, who has standing to bring a paternity suit?

Back 35

A little unclear- only a party in interest whose standing is in controversy (so an aunt could challenge standing here)

Front 36

Can someone compel a third party to submit to DNA testing?

Back 36

Under UPA-No- it's too invasive

Under GA law- OCGA 53-2-27- yes, can get DNA samples from any party in interest whose kinship is in controversy- as long as good cause for the test is shown

Front 37

UPC 2-114- Parent and Child- Illegitimacy

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an individual is the child of his [or her] natural parents, regardless of their marital status.


(b) An adopted individual is the child of his [or her] adopting parent or parents and not of his [or her] natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent.


(c) Inheritance from or through a child by either natural parent or his [or her] kindred is precluded unless that natural parent has openly treated the child as his [or hers], and has not refused to support the child.

Front 38

GA- Posthumous child and inheriting

Back 38

GA has a traditional statute- to inherit, child must be born within 10 months of decedent's death, be conceived before that persons death and they have to survive more than 120 hours after birth

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Advancement

Back 39

Definition- Satisfaction of an intestate share through lifetime transfer (corollary to ademption by satisfaction)

Front 40

GA and advancement-

Back 40

In GA- there is presumption against advancement-for something to be considered an advancement, there needs to be a writing of some sort from the decedent
----No timing element here- gift can be given long long ago

Under common-law- there was a presumption for advancement counting against the intestate share

Front 41

Hotchpot Method and Advancement

Back 41

Aka the add-back method, wherein any share advanced to a heir before the decedent's death is added back into the decedent's estate, then the intestate share is taken from that larger amount
Ex. A has three kids, B,C,and D. A advanced 10K to D (telling him a note it is an advancement), then died intestate leaving 20K. Add back in 10K to 20K= 30K, divided by 3= 10K each, B gets 10, C gets 10, D gets 0

Front 42

For Hotchpot method and advancement- Does person was advanced more than their intestate share have to give it back?

Back 42

No

Front 43

How do you figure out if something is an advancement?
UPC 2-109

Back 43

the presumption is that money given to person before death is an inter-vivos gift, not an advancement

For something to be an advancement- UPC 2-109- says 1. donor must sign a writing saying it is an advancement OR 2. recipient somehow acknowledges that it is an advancement

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UPC 2-109- When are advancements valued?

Back 44

At the date of recipt, not the date of death

Front 45

what is consanguinity?

Back 45

Degree of blood relationship between two people- calculated in degress
(in UPC-2103 and 2-106)
helps for intestate shares

Front 46

Lineal consaguinitiy vs. collateral consaguinity

Back 46

lineal c is anyone in a direct line from you, collateral is anyone else

Front 47

Three types of per stirpes distribution

Back 47

1. strict per stirpes distribution -divides at first level- like GA
2. modern per stirpes statute would go to the first living generation level (if no kids of X, would go to X's grandkids
3. or Revised Per stirpes- like UPC ( i. Not quite the same- go to each generation, add up the living number, then look at that same level, see who has left decendants, allocate a share,etc.)

Front 48

UPC 2-103(1) and per stirpes distribution

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Go to each generation, add up the living number, then look at that same level, see who has left decendants, allocate a share,etc.

For Ex. (look to 1/23)
1) So if B,C, and D were dead
2) A= 1/3, and there was C and D (combine those)- so C and D get 2/3- then go to the next generation of C and D-ers
a) Under C and D- there is still IJKL alive- so divide the 2/3 into 4 shares, which is 1/6 of the state total
b) If L was dead, then IJK would each get 1/6, and then the remaining 1/6 was just split between Q and U equally- they each get 1/12

Logic- members of each generation should get the same thing

Front 49

Who has standing to challenge an intestate distribution agreement?

Back 49

Need to have a legal stake in the outcome of the agreement to be able to appeal the standing (Estate of Goick)

Note: A creditor could have standing to appeal, because they could possibly be appointed PR?- B/c the creditor has a stake in the distribution of the state --Under GA law- a creditor is 4th in line of people to be PR

Front 50

UPC- 2-102- Surviving Spouse's Intestate Share

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(1) the entire intestate estate if:(i) no descendant or parent of the decedent survives the decedent; or(ii) all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

(2) the first [$200,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

(3) the first [$150,000], plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;

(4) the first [$100,000], plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.

Front 51

OCGA §53-2-1(b)- Intestacy and Children

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1 kid-- split evenly between two (spouse and child)
2 kids- 1/3 to spouse and 2/3 to kids evenly
3 kids and up- 1/3 to spouse and 2/3 between the kids

"Upon the death of an individual who is survived by a spouse but not by any child or other descendant, the spouse is the sole heir. If the decedent is also survived by any child or other descendant, the spouse shall share equally with the children, with the descendants of any deceased child taking that child's share, per stirpes; provided, however, that the spouse's portion shall not be less than a one-third share"

Front 52

General route of statutes of intestacy

Back 52

spouse
children
parents
brothers and sisters and their lineal decendants
grandparents and their lineal decendants
remaining next of kin
if no next of kin, then estate reverts by doctrine of escheat to state

Front 53

Halfbloods and the UPC

Back 53

UPC and Oklahoma-Tries to keep ancestral property in the ancestral line- looks at the assets as "family" assets rather than assets of the individual
--Halfbloods do not take if 1. the assets come from an ancestor and 2. ancestor is not an ancestor of the half-blood (A sibling is NOT an ancestor)

This approach is unlike GA, which treats halfbloods on either side as brothers and sisters to one another.

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Adult Adoptions ok?

Back 54

GA - looser statute- requires consent of adult person, ct can then grant the adoption as they see fit

Illinois - Estate of Brittan- has a residency requirement of at least 2 years prior to the adoption- adult adoptions ok

Gay Couple Adoptions- some courts will invalidate them...but those courts suck

Front 55

Does testator need to be in presence of witness when he signs?

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Witnesses must be in presence of testator when he signs- (Morris v. West)- GA agrees- Conscious presence is not enough (i.e. testator and witnesses were in same office suite- but the testator would have been required to more than slightly alter his position to be able to see the witnesses)

iii. Nichols v. Rowan: to be in the testator presence must be able to see witnesses from his actual position or from a position w/ slight alternation (Ok)

UPC- 2-502 (3) each witness must sign within a reasonable time after he [or she] witnessed either the signing of the will as described in paragraph (2) (a signing) or the testator's acknowledgment of that signature or acknowledgment of the will

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Where can signature on will be?

Back 56

UPC- 2-502- anywhere in the document

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What is the dispensing power of the UPC?

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Dispensing statute: if you can proof by clear and convincing evidence that intent is that the document be considerd a will the court is not going to worry about statutory formalities- UPC - 2-503
--Only in 10 states

Focuses on testator's intent

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What is the doctrine of substantial compliance?

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ii. Substantial compliance:
1) looks at how close you got to meet the statutory formalities. If you are close to meeting the statutory formalities and testator shows clear intent- then will is good. focuses on what was the testators intent. Is in play in more jurisdictions

Front 59

What are two salvage doctrines for wills that don't meet the will formality requirements?

Back 59

1) Dispensing: focuses on what was the testators intent is only. If it is clear then it is okay- UPC- 2-503- not used often

2) Substantial compliance: looks at how close the will is to the statutory formalities as well as the clear intent of the testator -used more often

Front 60

What two things are witnesses required to do?

Back 60

To sign and to attest (witness must intend to bear witness to the performance of the acts the statute requires)

Front 61

OCGA- § 53-4-23. Effect of witness or witness's spouse being beneficiary

Back 61

(a) If witness is interested, then they shall be allowed to sign, but the testamentary gift to them will fail unless there are two other disinterested witnesses
(b) An individual may be a witness to a will by which a testamentary gift is given to that individual's spouse, the fact going only to the credibility of the witness.

Summary: interested witnesses only forbidden when they themselves are actually interested( the husband to the wife who is named in the will could be a witness to the will)

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UPC 2-505

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(a) An individual generally competent to be a witness may act as a witness to a will.


(b) The signing of a will by an interested witness does not invalidate the will or any provision of it.

Summary: the pecuniary interst of the witness doesn't affect the validity of the will- the existence of the pecuniary interest in the will only bears on the witness' credibility

Front 63

Why don't we like interested witnesses for a will?

Back 63

2 theories
1) Concerned with truthfulness and credibility--- let them be a witness but purge their bequest
2) Concern of undue influence- don't let them be a witness

Front 64

What are purging statutes ?

Back 64

It eliminated the bequest of an interested witness- UPC does not do this- it looks to the credibility of the witness (UPC 2-505)

Front 65

What is an interested witness?

Back 65

Usually not a trustee or excecutor- usually only a witness who benefit directly under the will due to a bequest

Creditors- still are not considered interested witnesses b/c creditor's rights exist independently of the will and don't arise from any bequest in the will

Front 66

Is an attestation clause a requirement of a valid will?

Back 66

UPC-2-503-and 2-505 don't require it

an attestation clause is usually at the end of a will, where witnesses certify that will has been properly executed by testator in their presence

Front 67

Self proving affidavits?

GA and UPC?

Back 67

Self-proving affidavits allow proof of will formalities, even if witness is dead or incompetent at time of probate

UPC §3-406 – SPA conclusively presumes that all signatures are met and creates a rebuttable presumption that the other formalities are met.

UPC §2-504 describes- 2 Forms of Affidavits- needs to be acknowledged by testator before an officer authorized to administer oaths and the witness must execute the affidavits before the same officer

GA §53-4-24(c)-treats a will with a SPA the same as will/codicil that is not self-proved

Front 68

Three requirements of a valid will?

Back 68

testamentary capacity
compliance with statutory formalities
testamentary intent (usually look to the face of the document itself)

Front 69

What are several ways to let outside documents be included in the will (use these theories in order as listed below)?

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(1) Integration- will construction- try this first
(2) Incorporation by reference- pretty well established
---Stautory Provisions allowing list= good if it exists
(3) Facts of Independent Significant- not universally recognized- more tentative

Front 70

What are several ways to let outside documents be included in the will (use these theories in order as listed below)?

Back 70

(1) Integration- will construction- try this first
(2) Incorporation by reference- pretty well established
---Stautory Provisions allowing list= good if it exists
(3) Facts of Independent Significant- not universally recognized- more tentative

Front 71

What are several ways to let outside documents be included in the will (use these theories in order as listed below)?

Back 71

(1) Integration- will construction- try this first
(2) Incorporation by reference- pretty well established
---Stautory Provisions allowing list= good if it exists
(3) Facts of Independent Significant- not universally recognized- more tentative

Front 72

Integration- Generally

Back 72

Refers to which documents are included in a will

All of documents involved have to be in front of the testator when he is signing and look to intent of testator (Estate of Norton)

Front 73

How do you prove evidence of integration?

Back 73

Look to the flow of the pages, numbered pages, sentence completion on another page(continuity of writing), stapling of pages

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Incorporation by Reference- Elements Generally

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Two elements
1.) Show document was in existence at time codicil was drafted and signed, and
2.) There must be clear and distinct reference in the codicil itself to provide full assurance that other document was meant to be incorporated (to prevent fraud)

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UPC-2-510 Incorporation by Reference

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A writing in existence when a will is executed may be incorporated by reference if the language of will manifests this intent, and describes the writing sufficiently to permit its identification

Front 76

UPC 2-513- Incorporation by Reference- Lists

Back 76

i) Make sure to authorize the writing in your will
ii) Make sure it is all in the testator's handwriting-If written- Make sure it conforms to holographic formalities here per your jurisdiction
iii) Make sure it is dated (UPC doesn't mention this but you want to not get confused)
iv) Signed

This section covers only the disposal of tangible personal property - not money

Front 77

What if you want to give away something and retain the right to alter your list?

Back 77

Can use a) Trusts b) An executor you trust c) UPC-2-513 list of things to give away (not personal property, not money)
d) Give the remainder interest of an item away retaining a life interest in the item
e.) some states will allow in separate writings that weren't in existence but that dispose of tangible personal property

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Republication by codicil-

Back 78

Republishes the will on the date the codicil was made

----only available where you have an earlier will that complied w/ will formalities.

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Interlineations

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Correction or alterations by writing between the lines

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Protection of the Family
Spouse Share- Reasons

Back 80

For it
1.) Partnership theory- the two have helped to acquire the assets together, so both should receive part of the assets, look to length of marriage
2) Support theory- we would like to help support the other spouse because she helped support him during the marriage
--Problems with the support theory- What if the widowers get married again---What about minor children? You have to provide child support during the marraige and there is no comparable thing for a child
3.) If they divorced, then you would have to pay them alimony


Against it- you don't like the spouse, they were estranged - restricts free alienability of property

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What happens to property upon divorce?

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Community Property state- all assets acquired during marriage are deemed to be marital property- and then that is split in half
---Upon death- the stuff is split in half


Common Law property- in divorce, all assets acquired during marriage are deemed to be marital property, try to start with a 50% breakdown, but it can be moved
----Upon death- all property titled in decedent's name is considered the decedents
---So- better to divorce in these states than to remain with them until death

Front 82

Avoiding the Spousal Elective Share: Revocable Trusts

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Assets held in an inter-vivos trust created or amended during marriage will be subject to the elective share if the deceased spouse retained a power to revoke or general power of appointment- b/c of partnership theory of marriage (exercisable by will or deed)

Massachusetts
Sullivan v. Burkin

So- corollary would be if trust was irrevocable- assets wouldn't go into determining the elective share

Front 83

To avoid Mass Rule (Sullivan v. Burkin) to include trusts in decedent's estate in factoring of spousal elective share?

Back 83

Create a trust prior to marriage, or transfer assets during marriage, have spouse/decedent not be the trustee, make it irrevocable, make it for the benefit of someone else, or make a gift

Front 84

What are spouse's options when taking spousal elective share?

Back 84

Elect to take their statutory share

Or take what he/she is given under the will

Front 85

UPC and the Augmented Estate

Back 85

Includes lifetime gifts made during marriage (community property stuff) jointly held property, insurance held by the decedents, there are offsets made if surviving spouse has received the gifts or is the beneficiary of the insurance

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statutorily, there are 4 diff approaches to the elective share in diff states

Back 86

1) Fixed percent
2) Fixed percent if there are surviving children
3) Minimum amount plus a percentage above that minimum
4) Variable based on length of marriage

Front 87

What goes into UPC Augmented Estate? 4 categories

Back 87

1. Net probate estate- things you could pass under a will less debts and costs
2. Non-probate transfers during marriage and after death to someone other than the surviving spouse (within 2 years of death)
----Right of Survivorship accounts, POD, gifts, living trusts that decedent retains control over, life insurance AND
----Gifts- must be more than 10K made within 2 years of death- for administrative reasons
3. Non probate transfers to surviving spouse upon death by reason of spouse's death -not in lifetime
--Trusts, life insurance, etc.
4. Value of surviving spouse's property
----Even if it is life insurance (used at minimal cashout value not payout value)

Front 88

So - UPC Augmented Estate- by the numbers

Back 88

2-203- Composition of the Augmented Estate
2-204- Decedent's Net Probate Estate
2-205- Decedent's Non Probate Transfer to Others
2-206- Decedent's Non-Probate Transfers to the Surviving Spouse
2-207- Surviving Spouses' Property and Non-Probate Transfer to Others
2-208- Exclusions

Front 89

So how do you determine the Spousal Elective Share under the UPC? Steps

Back 89

1.) Identify elective share percent- look to the chart- increases by 3 percent a year then after 11 yrs, to 4 percent a year, then maxes out at 15 years
2.) Figure out the Augmented Estate- 4 Categories of things that go in it
3.) Determine the elective share amount (multiply the percentage by the augmented estate)- floor is 50K
4.) 2-209-the surviving spouse's own assets are counted first (or a portion of them under fifteen year marriage) plus all of property surviving spouse recieved under will and also in non-probate transfers, in making up the spouse's ultimate entitlement, so that the decedent's assets are liable only if there is a deficiency.

Front 90

What Percentage do we take for a spousal elective share?

Back 90

Old UPC- 1/3 of gross estate all assets passing by will substitute- all those assets pass into the gross estate- all assets the decedent had or controlled at death as well as any pre-death transfers
---Not included- life insurance passing to someone other than the spouse
-- Surviving Spouse received 1/3 of gross estate with credit to value of property already received ---Didn't embrace partnership theory quite as much

New UPC approach- more partnership
---Look at all of assets both parties controlled,
---Sliding scale based on duration of marriage- up to 50%, although there is a floor the spouse is entitled to received- 50K minimum
--- Now included in general pool- life insurance

GA- no elective share!! Just a year's support

Front 91

UPC-2-213 and Waiver/ When waiver is not valid

Back 91

(a)Allows waiver of elective share or homestead allowance, by a written contract or waiver signed by surviving spouse

(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that the waiver was not voluntary OR was unconscionable AND before execution of the waiver,
i) Did not Have a fair and reasonable disclosure of the decedent's finances OR
ii) Did not voluntarily waive in the writing any right to disclosure about the finances OR
iii) Did not, or reasonably could not have had an adequate knowledge of the finances of the decedent

Front 92

Explanation of full and fair disclosure in connection with a waiver

Back 92

In Pre-nups- Spouse needs to list every asset- and if they don't then they did not have a full and fair disclosure- which happens often
---Maybe there should be some limit here- some materiality standard where the non-disclosure should have only been invalid unless it meets a certain monetary limit (thereby precluding accidental forgetting of assets?)

Front 93

The Geddings Standard

Back 93

Geddings v. Geddings- if the spouse signs a pre-nuptial but has no fair knowledge of the husband to be-s assets, then the waiver is invalid

Front 94

Protections other than elective share for surviving spouse

Back 94

In this order
UPC 2-4-4- says 1.) Homestead first, then 2.) Family Allowance, then 3.) Exempt property, then Creditors, and then as per the will-
---It doesn't matter if someone gets double what the will provides for under the exemptions and then the will- do it anyway

Front 95

What is a homestead exemption?

Back 95

Homestead Allowance-Allows a set aside amount to go to spouse/minor children before creditors can really go in.

--UPC- 15K- goes to surviving spouse or any minor children

It is a protection for the minor children and spouse

Front 96

Exempt property allowance-

Back 96

Exempts Personal property that is worth more to the decedent than anyone else
UPC- 10K- to surviving spouse and then to ANY child

Front 97

Family Allowance Exemption (from creditors)

Back 97

Family Allowance- allows money to go from the decedents to dependents during period of probate administration
---UPC- maximum of 18K in 1year- surviving spouse and minor children

Front 98

How do exemptions (homestead, family, personal property) factor with elective share?

Back 98

Exemptions come straight off the top with no regard to wills- then after the exemptions and the creditors take their share, you factor the elective share and pretend those exemptions and the share that went to creditors never existed.

You take your percentage of the elective share from the net probate estate
---Net probate estate= Gross Probate Estate minus (homestead exemption, family allowance, exempt property, and debts of decedent, taxes and administration costs)

Note: Probate exemptions and allowances are not charged against the elective share nor against a share by the devise unless the decedent's will directs it (UPC)

Front 99

Purpose of Pretermitted children statutes

Back 99

i. To protect against children the testator didn't know about, children born after the will, children the parents think are already dead


Children May be intentionally disinherited in every state except Louisiana.

Front 100

Recommendations for parents that want to disinherit their children

Back 100

Make it very clear in the will that the disinheritance was intentional- if you do not mention your child in your will, a ct will assume it was an accident and you meant to include them (Estate of Glomset- OK)

1.) You want to specifically mention those children you intend to disinheritance

2.) You can specifically mention that even if you have other children, you mean to disinherit them - or can say if you have other kids and they can get 100 bucks

Front 101

What is a pretermitted heir?

Back 101

A child who is unintentionally left out of the will- an afterborn child or a child that was presumed to be dead

Front 102

UPC-2-302- omitted heirs

Back 102

UPC equalizes the shares among all the testator's children, whether named, omitted or believed to be dead

(a) Includes after born or after adopted children as follows
1) If there are other kids- Take all of children's shares, add them together and divide them by the number of children, and then the afterborn child will take that average amount
2) If there are no other children, child would receive what they would take under intestacy, unless the afterborn child is the child of a spouse who otherwise receives substantially all of the estate, in which case they get nothing (240K of 300K is probably materially all, but not substantially all)

(b)(a) doesn't apply if the disinheritance was intentional, or if the testator provided for omitted after-born or omitted children in leiu of a testamentary provision or such transfer can be reasonably inferred from amount of transfer

(c) if decedent doesn't provide for child because they think he's dead- he can take under this section as an omitted heir

(d)- UPC Section 2-302- things abate as said under 3-902 (see below)

Front 103

OCGA 53-4-58- Living child testator believed to be dead

Back 103

living child testator believe to be dead will take under the will
(NO PRETERMITTED HEIR STATUTE)

(a) Will take what they would have taken by intestate to the extent that the surviving parents' share (if there are assets) would not be diminished (b) if there are other children, omitted child gets an even share (divide all assets by number of children), and other childrens' share abates rateably

Intestate share in GA- Child would have gotten 1/3 out of the assets going to other people not his parent

Front 104

ii. OCGA 53-4-48- Revocation by marriage of testator, birth of child, or adoption of child (After-born Children)

Back 104

After born kids- if will is not made in contemplation of their arrival, get intestate share (just like spouses)

A class gift to members of testator's children shall be presumed to be with expectation of expansion of that class, even if the members are specifically names

Front 105

Doctrine of Independent Significance (method of will construction)

Back 105

A testator's disposition can be changed by contingent outside events and acts of third parties
(The future event the bequest is tied to must have a significance outside its significance in the disposition of the estate)
(in re Tipler's Will)

comes up when an outside event either determines who takes, or what is taken

UPC-2-512

Front 106

Lapse?

Back 106

When someone who is supposed to take under a will is not alive at the time the testator dies

Front 107

Procedures once lapse kicks in-
Both for bequests to a friend and also to a blood relative

Back 107

If the bequest is to a friend, 1.) see whether there is an alternate taker 2.)then bequest will go to residuary beneficiaries, and 3.) If the deceased is a residuary beneficiary (a) If the deceased is the ONLY residuary beneficiary, the residuary passes through intestacy (b)Then if there are multiple residuary beneficiaries- then other resid. beneficiaries would take as though deceased had never been




If the bequest is to a blood relative- make sure to look and see if state's anti-lapse statute kicks in and allows blood relative's heirs to take

Front 108

OCGA-53-4-64- Effect of Death of Beneficiary

Back 108

a) (a)- GA doesn't have any language limiting who the beneficiary will be (GA is in the minority of states here)- can apply to void beneficiaries as well, ANY beneficiary with decedents (no limitations as to close relatives)
i) Only applies to persons who have decedents living at the death of the testator
ii) Doesn't apply to life estates, or estates with remainders, or if there is a limitation on the bequest- those estates will lapse and go to the residuary beneficiary
iii) If one of descendants of the decedent beneficiary have died, then there must be decendents of that decedent
One. When X, deceased beneficiary, leaves children ABC, A who is dead but left DE,
b) (b)- The provisions of subsection (a) of this Code section shall also apply to a testamentary gift to a class unless there appears a clear intent to the contrary.
c) (c)-if there is a divorce, annulment, or subject to the slayer statute, it only applies to decedents of that person if the decedents are also children of the testator

Front 109

O.C.G.A. 53-4-65-Lapsed or Void Testamentary Gifts
- Anti Lapse Statute

Back 109

(a) A lapsed or void testamentary gift of realty or personalty shall become part of the residuum.
(b) A lapsed or void gift of the residuum shall be deemed a part of the share of the other residuary beneficiaries in proportion to their original shares of the residuum. If there are no other residuary beneficiaries, a lapsed or void gift of the residuum shall pass by intestacy.



This is just like most other Anti-Lapse statutes

Front 110

Void bequest?

Back 110

Void bequest- at moment testator is writing will, the beneficiary is already dead

Front 111

How can a testator override the anti-lapse statute?

Back 111

a) If testator says devises only go to persons who "were living at the time of his death", then testator clearly intends to override the anti-lapse statute (Estate of Rehwinkel)

3) Gift to beneficiary "if he survives me" is superfluous, doesn't change the law. Usually express survivorship requirement has to be clearer than that. (Estate of Ulrickson)

Front 112

UPC 2-603- Anti-Lapse statute

Back 112

decedent must survive the testator by at lease 120 hours

Look to specific statute- so very long and comprehensive-pg 313

Front 113

What if a member of a class dies? Will their share lapse?

Back 113

Generally, no, the bequest will be split among other members of the class

Front 114

What are four general ways to pass property under a will?

Back 114

i. Specific bequest- my sister gets this painting
ii. Demonstrative Bequest- my sister gets money from a specific place/bank account/brokerage account
iii. General bequest- is an amount, from any assets
iv. Residuary clause- covers assets that are left over- "and everything that remains goes to my children"

Front 115

Abating- UPC 2-302

Back 115

UPC Section 2-302- things abate as said under 3-902
--- We protect in order of specificity. Specific devises most protected, then general/demonstrative bequests, residue least protected.


Abate rateably- means decrease proportionately

Front 116

Ademption (by extinction)

Back 116

When a specifically bequeathed item is no longer in the testator's estate at death- or item has substantially changed in character

Front 117

Ademption (by satisfaction)

Back 117

When person who was supposed to get item under will has already been given that item – for specific bequests it is easy, for general bequests of money, you need to look to the intent of the testator
Corollary is advancement- for intestate distribution

Front 118

UPC-2-609- Requirements for Ademption by Satisfaction

Back 118

Property is treated as adeemed by satisfaction if 1.) the will provides for deduction of the gift, 2.) the testator declared in a contemporaneous writing that the gift would be adeemed by satisfaction or provides for the value to be deducted from the value of the devise, or 3.) the devisee acknowledges in writing that the gift is in satisfaction of the devise

Front 119

GA- Ademption by satisfaction- 53-1-10

Back 119

(a) Specific Bequest is adeemed by satisfaction if there is evidence in item c, or if the item is out of the testators estate
(b) General bequest- is adeemed by satisfaction if there is evidence of the testator's intent
(c) Evidence- (1)if the will provides for the transfer- OR (2) if testator declares this in writing within 30 days of the transfer to the recipient, OR (3) if the recipient acknowledges that the this counts against the share in the will- --- Exactly like UPC-

Front 120

Identity Test for Ademption by Extinction

Back 120

Form or substance change- if the item has changed in substance, it is different and item is therefore adeemed – McGee v. McGee
If the item merely changes in form= ok
Ct will not inquire into the reason why the item is not found in the decedent’s estates

Front 121

Guardianship Exception

Back 121

To extent T is not responsible for change in identity of item, maybe the ID theory is too harsh on beneficiary that T intended to benefit. (UPC and GA do not have)

Front 122

Ademption by Extinction- Rules for Securities

Back 122

Person taking shares gets any extra shares or money not received through direct action of the testator- benefits of stock splits, mergers, consolidations or reorganizations- UPC- 2-605-
Beneficiary is not entitled to replacement stock -If testator sells stock and replaces the stock with stock from another company-
Beneficiary is not entitled to cash if testator sells the stock and doesn’t reinvest

Front 123

GA 53-4-66 and Ademption by Extinction

Back 123

- is allowed

Front 124

UPC- 2-606- Exceptions to ademption: Nonademption of specific devises; Unpaid proceeds of sale, condemnation or insurance; sale by conservator or agent

Back 124

Specific devisee has a right to either the property, or the balance of the purchase price, any amount of a condemnation award, insurance proceeds, property acquired as a result of or in leui of foreclosure, replacement items, pg. 295 need to summarize
Unless testator's intent shows the testator intended to adeem their bequest, or ademption of the devise is consistent with the testator's manifested plan of distribution
-----I.E. There is a presumption against ademption

Front 125

Ademption by Extinction- GA- Three Exceptions

Back 125

(a) If there is an exchange of property for property of like character, or the change of investment of a fund (identity theory found in McGee, but broader because it states "changes of investment of a fund")
(b) Insurance Exception- if something is lost, destroyed, stolen, etc, the property is not deemed adeemed, and the money from insurance proceeds will go to beneficiary (six month limitation- that is about how long it will take testator to get the money and change the will)
(c) Condemnation-Exception same as insurance exception, same six month limitation

Front 126

Three Ways to Revoke a will (or part of it)

Back 126

Revocation by Subsequent Written Instruement
Revocation by Operation of Law (divorce/marriage/pre-marital wills)
Revocation by Physical Act

Front 127

Revocation by Operation of Law

Back 127

Divorce, Marriage, some states say by birth of child

Front 128

Three Approaches to spouses who are married after the creation of a will (Rev by Op of Law)

Back 128

1. Elective Share to protect the spouse- but might be less than what the testator would really want spouse to take
2. Marriage might revoke a will entirely
3. Some states enact an omitted Spouse statutes (like pre-termitted child statute) (GA does- GA 53-4-48)

Front 129

OCGA 53-4-48- Revocation by marriage of testator, birth of child, or adoption of child

Back 129

Subsequent spouse takes their intestate share (if they are named anyway, then those amounts will offset the spouse's share)---Omitted spouse approach

Front 130

UPC 2-804- Wills and Divorce and Annulments of Divorce(Rev. by Op of Law)

Back 130

UPC will generally treat the living spouse as though they predeceased the testator, unless the express terms of the will say otherwise (in case of divorce, I still want the spouse to inherit)
This section applies to a large class of instruments here to non-probate transfers, insurance policy, wills, POD accounts, etc.
----NOTE: In reference to the anti-lapse statute- if ex-spouse is being treated as though pre-deceased, we will not sending assets down the spouses family line through the anti-lapse statute)

Front 131

OCGA 53-4-49- Revocation by Divorce

Back 131

Same as UPC, ex-spouse is treated as predeceased, unless the two divorced later remarry
--Timing- Nothing is written in stone until the testator dies
--Only class of instruments covered here- just wills
--Revokes to ex-spouse and the anti-lapse staute does not void bequests to spouse's family members (i.e. not like the UPC- if ex-spouse is being treated as though pre-deceased, we aren't sending assets down the spouses family line through the anti-lapse statute)

Front 132

OLD UPC 2-508 (pre-1990 version)- Rev on Divorce

Back 132

pg 365- will can be made before or after the divorce-
Just covers wills, and only eliminates ex-spouses, and is revived by remarriage

Front 133

Revocation of Will by Physical Act

Back 133

When a will that was in testator's possession cannot be found, or markings were made on a will, or will is destroyed (burning, tearing destroying, canceling, mutilating, etc.)

Front 134

What happens when you cannot find a will that was kept in testator’s custody?

Back 134

A will that is in the testator's custody cannot be found, presumption is that the will is presumed to be destroyed (OCGA 53-4-46)
Presumption is overcome when there is clear and convincing evidence of an opposite intent- GA says a copy is allowed if there is a preponderance of evidence that it is a true copy, and that there was not intent to revoke, by preponderance of the evidence
(Ex- of overcoming presumption- First Interstate Bank of Oregon v. Henson- Hammer-No positive proof as to where the will was kept, person who also had access to it stood to benefit from its destruction, Testator never sugested the will was destroyed, Testator spoke to someone about its validity 11 months before his death)

Front 135

Two types of revocation?

Back 135

Express and Implied- OCGA 53-4-42

Front 136

OCGA 53-4-42 and Express Revocation

Back 136

(b) Express Revocation- When testator makes a writing or takes an action to destroy the will, the revocation takes place immediately

Front 137

OCGA 53-4-42 and Implied Revocation

Back 137

(c) Implied- when there is the execution of a prior will, that by its inconsistent terms probably overrides the first (if there is no express language revoking prior wills)
--Takes effect when the subsequent inconsistent will becomes effective. If the subsequent inconsistent will fails to become effective from any cause, the implied revocation is not completed. (Notice how timing is different from Express Revocation)
------Ex. if he rips up the 2nd will, there is a presumption he wanted the 1st will to be effective

Front 138

O.C.G.A. 53-4-44- Express revocation by destruction or obliteration of will

Back 138

Need 1.) physical act to revoke and 2.) an intent to revoke
Presumption is that the intent is there if you take the act, but you can overcome it

Front 139

Partial Revocation by Physical Act (Generally)

Back 139

1.) Presumption is that most states allow revocation of part of the will (that the partial revocation does not entirely revoke it)
2.) UPC- 2-507 -(a)- allows partial revocation-If you have a revocatory act on the will----Then the amount revoked from X would go to the residuary
3.) Can cross out provisions and initial them, but cannot really add provisions (fraud concern)

Front 140

Revocation by Subsequent Written Instrument (Generally)

Back 140

Happens when terms of second will are inconsistent (hard to define inconsistent terms, but “all of my effects” refers to personal property unless land was referred to in same document- Wolfe’s will) NOTE: subsequent written instrument must still have will formalities –like signature and witnesses
--Rev. by Subsequent Written instrument is an implicit revocation which means that the first will is not revoked until the death of the testator (GA law suggests)

Front 141

Revocation by Subsequent written instrument- UPC and GA

Back 141

UPC 2-507- Inconsistent Wills- (c) Presumes that if the second will makes a complete disposition of all of the testator's property- the first will is revoked, also presumes that if a second will does not make a complete disposition of the assets, the testator did not intend to revoke the first will
OCGA- 52-4-47- An implied revocation extends only so far as an inconsistency exists between testamentary instruments. Any portion of a prior instrument that can stand consistently with the testamentary scheme in a subsequent instrument shall remain unrevoked.---probably same effect as UPC section

Front 142

Three Ways that Revocation by subsequent written instrument arises

Back 142

A later will that expressly revokes earlier will or is inconsistent with terms of earlier will
A codicil
A later will that revokes the earlier will without disposing of any property (only revoking earlier will)

Front 143

If there are multiple executed copies of the will, and one copy cannot be found?

Back 143

If that will was in the hands of the testator, then presumption is with respect to all copies, that the will was revoked

Front 144

Codicils (little will)

Back 144

A document that amends or supplements a will-Must satisfy the same formality criteria as a will, usually specifically refernces the will
It is easier just to make a minor change by codicil rather than by printing out an fixing a whole new will- OR maybe it is easier to make a new will, b/c then there won’t be any integration problems, problems with people losing codicils, etc. or if we have questions about capacity

Front 145

Doctrine of Dependent Relative Revocation

Back 145

Doctrine of the second best-
When there is an implied condition to the revocation
----Like testator only meant to revoke the first will if the second will is valid (Carter v. First Methodist Church of Albany) or only wanted to revoke the disposition if the son was really dead
Ct tries to look to getting as close as possible to the testator's intended disposition
--- For Ex. if testator changed bequest from 10K to 20K, but the change wasn’t valid, then testator would probably want beneficiary to get 10K again, but if he changed it from 10K to 1K, and 1K change wasn’t valid, he’d probably not want the doctrine of dependent relative revocation to kick in (look to what testator wanted)

Front 146

UPC 2-503-Doctrine of Dep. Relative Revocation

Back 146

Both UPC and GA have the doctrine of dep. Relative revocation

Front 147

Theory of Republication by codicil

Back 147

Theory is that it restates testator’s intent as of the date of the codicil- Can only republish something which was validly executed in the first place (however if will is made under UI and then codicil is made when there is no UI, will and codicil will both stand b/c testator could have changed will when he wrote codicil) ,

Front 148

Revival

Back 148

Lets an old will, which was overridden by a new will which was subsequently invalidated become revived- a lot of jurisdictions don't have revival without testamentary formalities (through republication)
Like if you wrote one will, then wrote another with entirely different provisions, then revoke second will

Front 149

UPC 2-509 and OCGA 53-4-45 and Revival

Back 149

(1) Prior will wholly revoked by a writing - both GA and UPC- prior will stays revoked unless evidence shows otherwise (No diff)
(2) Prior will wholly revoked by an act- presumption is against revival both under GA and UPC- unless evidence shows otherwise (no diff)
(3) Will is partially revoked by a writing (DIFF here between two)
UPC- presumption is against revival AND in GA- for revival...if there is certain evidence (So there is a minimal difference here)
(4) Will is partially revoked by an act- UPC and GA- presumption of revival- unless there is evidence there was no intent to revive (no diff)
(5) GA is broader is some places (in what evidence is required, UPC requires - proof can either come from the circumstances of the revocation or from the subsequent declarations of the testator), but they are generally the same unless there is a partial revocation by writing

Front 150

What does an administrator do?

Back 150

They liquidate and manage the decedent’s estate (testate or intestate), they publicize the decedent’s death, they collect all of his assets, pay all debts and expenses, make distribution according to will or rules of intestate succession and file an account with the probate ct

Front 151

Who do you appoint as personal representative?

Back 151

Usually state’s intestacy statute will tell you- about order of appointment- usually surviving spouse, a child, and other heir, creditor (4th in GA)

Front 152

4 Types of Non-Probate Transfers upon death/ Will Substitutes

Back 152

Joint tenancy, Joint Bank Accounts, life insurance policies, person plans, intervivos trusts

Front 153

Joint Interests with Right of Survivorship (Type of Non-probate transfer)

Back 153

Like a joint bank account (Franklin v. International Bank)
GA 7-1-813- funds held in an account that has a joint right of survivorship the presumption is that the surviving party receives the funds unless there is clear and convincing evidence of a different intention that must have been there at the time the account was created (Would have changed the Franklin case)

Front 154

Three reasons for creating a joint bank account-

Back 154

1.) Elderly depositor just wants to give joint account holder on account for reasons of conviences in case they are incapacitated 2.) Depositor wants to give the account to someone after his or her death, but doesn't want the joint account holder to withdraw or use any of the money or rights until his death 3.)Depositor wants to confer on the joint-account holder all of the rights associated with joint ownership-including the unlimited right to withdraw and use the money

Front 155

PODs (Payment on Death Accounts)

Back 155

During life there is one owner, but there is no withdrawal right for the beneficiary until death. If there are two beneficiaries there is no survivorship right between them, they own the "remainder" as tenants in common- the GA statute- says there is no right of survivorship between the POD beneficiaries
POD vs. a will-POD will probably engender more litigation, a will makes her intent clear and it takes more effort, but with a POD, courts are going to allow other extrinsic evidence of her intent, whereas with a will, they never would
(But a POD will be cheaper to change than a will)

Front 156

What is a trust?

Back 156

A way of owning property where we divide up legal and beneficial ownership- between beneficiary and trustee (who manages the trust)
Trustor/ settlor/grantor= person creating a trust

Front 157

Why would someone create a trust?

Back 157

1.) We don't trust the beneficiary to control the assets,
2.) Donor wants to be able to control the trust after they are dead- provides more flexibility in estate planning
3.) Gets assets out of probate (doesn't get you out of federal estate taxes, maybe state)
4.) Trusts are better than life estates (more independence in a trust)

Front 158

Three Requirements for a trust

Back 158

Property, Trustee and Beneficiary
1.) Property- schedule A recites the amount being transferred into a trust (always say 1 dollar)- although a trust might fail if it is part of a pour-over plan from a will- the corpus of the trust
2.) Trustee- person who holds legal ownership- if one isn't named in document, or one named in document refuses to or can't serve, then ct will appoint one
3.) Beneficiary, b/c We need someone to enforce the trust document if trustee goes astray and therefore Trustee can't be sole beneficiary- b/c then there is no trust and the trust merges into a fee simple

Front 159

What if beneficiary of trust isn’t explicitly named?

Back 159

Specific beneficiary doesn't need to be named as long as trustee or court by extrinsic evidence is given enough direction to be able designate who gets the assets (Moss v. Axford- Testator designated her residue to person who provided her with best care in her old age)
----Ct can review trustee's decision
HOWEVER- If testator left her assets to her "friends"-"Friends" has no legal meaning, so at common law, that trust would fail, but under the UTC - there might be a better chance of upholding it

Front 160

Momentary Trust

Back 160

Like trust in Moss v. Axford, trustee determines who beneficiaries are and then assets are paid over immediately

Front 161

Why do we like trusts to have identifiable beneficiaries?

Back 161

1.) B/c we don't know what the trustors intent was, esp if they don't provide a clear standard
2.) Rule Against Perpetuities Problem
3.) B/c otherwise we don't know who has the power to enforce these trusts- Usually the beneficiaries would, but if beneficiaries are indefinite, they can't, Attorney General's job is NOT to enforce private trust terms (even with charitable trusts, it is difficult), Could allow heirs to take instead of residuary beneficiaries- they can then sue

Front 162

Six General parts of Trust (According to Milot)

Back 162

1.) Trust Formation- this is my trust, set up provisions
2.) Trust property- Recite transfer of trust property into a trust- listed into scheudule A
3.) Any other rights that trustor retains in respect to the trust- to cancel, to amend, etc.
4.) Beneficiary Section- describes what happens to trust during lifetime of trustor, and then what happens upon the end of the trust and how it ends
----List out the Groups of beneficiaries and their rights to each part of the trust, the specifications and time period for the trust for each beneficiary, how much they get (like if a surviving spouse remarries?)
5.) Trustee Provisions- the trustee's responsibilities- standards of care, what they can do, can they sell the property? (state law provides a default, but you can change them)
6.) General Contract Language- choice of law provision, and other boilerplate provisions
7.) Then signed usually by trustor, sign and date, and trustee, sign and date

Front 163

Three Types of Trusts

Back 163

(1)Express trust-Clear intent to make a trust, with a trustee, and beneficiaries, and there are assets-For the benefit of the named beneficiaries
(2)Resulting trust- Where there is an attempt to make an express trust- where it is formed, but fails for some reason, then the assets return to the trustor, and then pass through the will-For the benefit of the trustor
(3) Constructive trust-An equitable remedy that the court fashions, ask for it in the pleading-Person who received legal title to the assets doesn't actually deserve them, so this discharges the person of their ill-gotten gain

Front 164

Two Types of Express Trusts

Back 164

Private Trust and Charitable Trusts

Front 165

Precatory words vs. words creating a legal obligation

Back 165

Precatory- non-binding, suggestive, no legal obligation- Words- ask, desire, wish, lead you into the question of whether something is mandatory or not
While words creating a legal obligation=make it a trust

Front 166

Examples of Precatory words v. binding words

Back 166

Precatory--"to be disposed of as already agreed between us" (Spicer v. Wright), “it is my desire”
Words that create a legal obligation- If intent of the testatrix was shown through facts and circumstances “it is my desire” can be changed into if specific terms about when money was supposed to be given, when given, testator was in habit of supporting beneficiary etc (Levin v. Fish)

To determine whether precatory or mandatory- Look to
1.) Relationship btwn trustor and trustee- if the trustee are not the natural object of the trustor's bounty- it is more likely to be
2.) Look to see if the trustee's obligation to beneficiaries is clear or not

Front 167

Oral Trusts

Back 167

Valid in some states but not in others-NOT in GA (53-12-20)
An oral declaration during life is ok for trust but NOT FOR A WILL b/c 1.)Then the question of validity could have been raised during trustor's lifetime 2.)Delivery - the pang of giving something up- if it happens during the lifetime, then it is less likely to be fraudulent

Front 168

OCGA 53-12-20- Oral Trusts

Back 168

GA does not allow an oral express trust, an express trust must be written-But maybe could have found a constructive trust- for remedial purposes

Front 169

Active Trust v. Passive Trust

Back 169

Active Trust- Trustee has active duties to perform
Passive Trust- trustee just holds legal title and doesn’t have to do anything

Front 170

Problems with secret trust/oral trust

Back 170

1. Creditors don't know what to do
2. We want to allow people to be able to rely on the written system- like if grandma mortgages the property, then defaults- we will protect the mortgagee
3. Fraud possibilities are high

Front 171

Totten Trusts

Back 171

they are payable on death accounts revocable during lifetime, savings account trust-
the assets in each account get paid directly through the named beneficiaries upon death of primary person
assets are not factored into elective shares

Front 172

Illusory Trust

Back 172

When trustor complies with all the formalities of trust creation but exercises so much control over th trust it is clear that he didn't intend to relinquish any rights to the property

Front 173

Capacity to Make a Trust

Back 173

Capacity standards for trust are the same as for a will
Much less apt to have challenges with a trust- Timing of when it would be challenged is different
--- Trustor retains a greater ability to defend their capacity

Front 174

Modern view about precatory words

Back 174

They do not by themselves create an express trust- but if you look to trustror's intent and teh facts and circumstances at the time, they might

Front 175

Ways to Validate a Living Trust(b/c it is a will substitute without will formalities)

Back 175

1.)If the trust existed for other reasons as well, it is more likely the trust would be validated- but it is hard to have an already funded trust (facts of independent significance)

2) Validated through incorporation by reference, as long as it is in existence at time will is written - but then you can't change the trust without destroying incorporation by reference

3) Where intent was clear, courts would validate it anyway whether or not it was a will substitute

Front 176

Living Trust

Back 176

An intervivos trust that is revocable- looks kind of like a will (often challenged as a will substitute without will formalities)

Front 177

Unfunded Trusts/ Pour Over Wills

Back 177

Common Law says a trust that isn't funded til death is invalid BUT state statutes usually differ

OCGA 53-12-71
1) In order to set up a trust, you can set up an outside trust, 1.) id it in your will, and as long as you have it 2.) written in a written trust document, and as long as the trust exists at the time the will is made= ok
----This GA statute validates a pour over will/unfunded trust
- Trust can be amended later (so this is broader than the incorporation by reference document)

(c) A revocation or termination of the trust before the death of the testator shall cause the devise or bequest to lapse and goes to residuary

UPC- 2-511- Same language as GA

Front 178

Benefits to a Trust over a Will

Back 178

i. To avoid probate
ii. To plan for incapacity
iii. More privacy
iv. To consolidate administration of probate and non-probate assets (like insurance or retirement benefits, which are non-probate assets)
v. Not the same formalities for trusts as we do for wills

Front 179

Intervivos trust (revocable, living trust, or irrevocable) Vs. testamentary trust

Back 179

Intervivos trust is a private document - there is no court interference unless there is a problem, parties don't have to have representation, although there is more posibility for fraud
Testamentary trust- more expensive to admnister, more bother, have to periodically file with probate court,

Front 180

Revocable v. Irrevocable Trusts

Back 180

Revocable trust- is not considered a completed gift to your beneficiary (where beneficiary would get a stepped-up basis? if you have an appreciating asset) (annual exclusion gift)
- an irrevocable trust is, therefore an irrevocable trust provides some sort of tax breaks

Front 181

Problems with Revocable Trusts

Back 181

Unclear Drafting leads to problems(Heaps v. Heaps)

Revocation by Operation of Law
---Common law- no revocation upon divorce- lapse doesn't apply, because this is a trust, not a will,
Example--If Sarah makes trust benefiting Sam, they divorced, Sam dies, Sarah dies intestate, Bob, Sam's brother would take
---UPC-2-804- (and Clymer v. Mayo) divorce revokes revocable dispositions (revocable trusts)

Front 182

Spendthrift Trust

Back 182

Used to protect from creditors and also to restrict the beneficiary's right to alienate his interest in the trust. Says the beneficiary cannot assign his interest, cant get a lump sum, creditors cant garnish the trust.

Front 183

In states that recognize spendthrift provisions, are creditors completely barred from reaching the beneficaries' interest in the trust?

Back 183

No- creditors can often get at the income from the trust (not the principal)
Some states allow creditors to get at any part of income that exceeds what is necessary to support and educate the beneficiary

Public Policy- Alimony and child support are exceptions, tort claims, claims by fed and state gov.

Front 184

What words create a spendthrift provision?

Back 184

" such payments are to be made free from interference or control of his creditors"

Note: If involuntary alienability is prohibited, so is voluntary alienability

Front 185

Self -settled spendthrift trusts- are they valid?

Back 185

No
Self-Settled Trust- GA and other states- no creditor protection if you set up a trust for yourself.
This makes sense here, if you are setting it up for your future medical interests, going to look at it more favorably.
Why some states might allow self-settled trusts- race to the bottom

Front 186

What is the difference between voluntary and involuntary alienation?

Back 186

voluntary- if you want to sell your interest in a trust

involuntary- if a creditor wants to lay their hands on anything other than the interest income

Front 187

In a spendthrift trust where income payments are mandatory, there is still no protection for involuntary creditors (Scheffel v. Kruger)

What are the only exceptions (not creditors0?

Back 187

Tort Judgments, Taxes, Alimony, child support, judgment for necessaries (medical support and lawyer who administers trust), etc. (GA)

Front 188

Why do we allow spendthrift trusts?

Back 188

1. Prevents someone who you don't think can be responsible from assigning away their interest.
2. We are looking at the settlor's intent.
3. A creditor can do their due dilligence to determine where money is coming from.

Front 189

Discretionary Trusts

Back 189

i. Discretionary Trusts - the trustee is granted discretion to pay to or apply for the benefit of the beneficiary only so much of the income and principal or either as the trustee sees fit.

Front 190

Support Trusts

Back 190

In case of support trust, the trustee is directed to pay to or apply for the benefit of the beneficiary so much of the income and principal or either as is necessary for the education and support of the beneficiary.

Front 191

Exculpatory Clauses for Trustees

Back 191

Srictly construed (esp when trustee is attn who writes the exculpatory clause), are usually upheld except when breaches of trust are committed in bad faith or with reckless indifference (Marsman v. Nasca)

Front 192

Duties of Trustee

Back 192

Can decide when assets are spent- when principal is invaded- i.e. whether assets of testamentary trust be used to support a woman who has been declared incompetent before her own assets as controlled by a guardian are used (Wells v. Standard)

Trustee in Support trust has a Duty of Inquiry -
---Not only does a trustee have a duty to act reasonably, they have a duty to inquire into beneficiaries circumstances periodically and see what is necessary, esp when trustee was on notice of the circumstances- (Marsman v. Nasca)

Beneficiary can consent to a breach of the trustee- but a continuing breach means assent will not be considered

Front 193

Mandatory v. Discretionary Trusts

Back 193

a mandatory trust- one where the beneficiaries interest in the outcome is mandatory (usually according to fixed schedule)

discretionary trust-when the beneficiaries' interest in the trust and/or principal is discretionary (no right to recieve income or principal)

Front 194

Sprinkle/Spray trust

Back 194

A sprinkle or spray trust requires that trustee to distribute the property, but the paayment is to be made to a group, and trustee has discretion as to whom to make the payments and how much each is to recieve

Front 195

Creditor's rights (generally)

Back 195

Gen Rule- creditor can reach a debtor's property as long as the property interest is transferable

Front 196

What can a creditor access out of a trust?

Back 196

If a mandatory trust- creditor can get at income just as beneficiary could have

If a discretionary trust- a creditor cannot force a trustee to distribute property to the beneficiary any more than the trustee could have

Trust with a spendthrift provision- these clauses can bar just voluntary, or both voluntary and involuntary transfers

Front 197

Estate Taxes -Phase Out

Back 197

Phase Out of Estate Tax- since 2001 exemption amount increased, taxable amount decreased- in 2010, it will be nothing, but in 2011, it was back to 2000 levels, which is like a new tax

Front 198

States Have different approaches to state estate taxes:

Back 198

Traditionally, they offered a credit up to 16% of your total estate,
Some states still charge only deductions against
Some states have no estate tax, some still do
GA- links its state estate tax to federal credit amount (this does not exist anymore, so GA has no state estate tax)
Stand alone estate tax- 1/3 of states have them- GA does not- 48-12-1.1-

----If the fed. estate tax is termed in terms of a credit rather than a deduction, then GA will have a state estate tax

Front 199

Estate Tax is linked to

Back 199

Tax on the transfer of wealth- linked to the gift tax and the generation skipping transfer tax (grandkids and stuff)

Front 200

When are you taxed?

Back 200

Gift taxes- kick in after 1 million

Estate tax-2 million minus whatever was used of the gift tax exclusion amount
--Rate for estate tax is 45 percent, after exclusions, deductions and base is factored in
---between 2-5 million dollars- that's the hard category

Front 201

Timing on Estate Taxes

Back 201

g. Transfer tax- Timing
Tax is due on the transfer- needs to be filed a gift tax return by April 15 of next year

Front 202

What are you taxed on?
For gifts there are 4 exclusions;

Back 202

1.) Annual exclusion gifts- all gifts to 12 K or less per donee per year (a de minimus rule- only want to tax substantial transfers)- 12K indexed for inflation
2.) Any transfer between spouses- in life or death
3.) Direct Payments of tuition and medical expenses for another person- to a qualified educational exclusion
4.) Transfers to a charity

Front 203

What is is taxed? For estate tax:

Back 203

1.) Everything that goes through probate, and
2.) Non-probate transfers where certain lifetime transfers that people can make and retain an interest over (like a revocable trust where benefits go to someone else), and
3.) Gifts made within 3 years of my death- comes back into estate- above the 12K

Front 204

What is a stepped up basis?

Back 204

In estate tax
--Generally- if I buy an asset for 100K, sell it for 200K, will pay a capital gains tax on 100K
---But if I buy it for 100K, die when it is worth 200K, the beneficiary who gets it gets a stepped up basis of 200K

Front 205

Estate Planning for Marital Couples (Tax-wise)

Back 205

Martial Deduction
--Historically, gifts between spouses were included in the gift/estate tax, but now there is a full exclusion b/c husband and wife are seen as a unit

Hypo to explain interactions of gift and estate tax exemption
1) H and W each have 3 million, H gives 1 million to Bob,
2) H dies in 2008, all assets to daughter
3) On husband's death- his taxable estate= 2 million - add back in taxable gifts- 1 million= 3 million dollar estate size
a) Then 2 million dollar exclusion, so 1 million dollar taxable estate at 45% rate

Front 206

Generation skipping Transfer Tax

Back 206

Where a transferor attempts to transfer property to a transferee who is more than one generation below the transferor, a federal generation-skipping transfer tax is imposed

Front 207

Four things you can do to make sure that gay couples get what they want

Back 207

1) A contractual agreement- where each promise to leave each other something at their death- it is like a reverse pre-nup, will have consideration, etc.

2) Charitable remainder trusts- you set up a trust, say partner will get trust assets during life, charity gets the remainder upon partner's death (effectively an annuity)
--- So gift over to partner is valued as an actuarial value- so you only give a gift of a life interest, not the whole interest
---- So therefore a charity has a strong incentive with a partner to uphold this trust (and attorney general might also get involved too)

3) Adult adoption- but some people don't culturally like them, you cut off adopted partner from their birth family, some states don't recognize them, and this is not revocable

4) Getting assets outside of the probate system
a) Trusts (revocable unfortunately doesn't have any tax benefits), contracts, jointly held property, Payable on Death Accounts

5.) Maybe also Pre-validation of the will- before the death, can take the will to ct- like in Ohio

Front 208

Interaction of Full Faith and credit- what if A executed a will in Mass then moves to AZ?

Back 208

Full Faith and Credit-
A will validly executed in an another state- must be given credit in another
Like if a will if validly executed in state 1 (2 witnesses), then moved to a state where three witnesses are required

Front 209

Dual Probate

Back 209

Dual Probate
If someone has property in two states, then the will must be probated in those two states

Front 210

Choice of Law and Trusts

Back 210

For trusts- you need to name which state's law you need to apply

Front 211

Problems for Gay Couples

Back 211

Will leaving assets to partner might be invalidated on theory of UI (Will of Kaufman)

Front 212

Transsexual Couples and Intestacy

Back 212

KS said you can't change your sex by anything you do in your lifetime- so couple was not actually married

So these couples will want to have a will in place and don't want to rely on intestacy

Front 213

OCGA 53-2-1-Statute for kids born outside of wedlock

Back 213

Kids can inherit through mom,

Can inherit through father if born out of wedlock if there is a court order, he acknowledges it, signs the birth certificate, other clear and convincing evidence

Rebuttable presumption of paternity in GA=If there is a test establishing to a 97% certainty that the child is the child of that father, you take it to court where it can be rebutted by clear and convicing relationship

Front 214

OCGA 53-2-3- When can a parent take from a child born out of wedlock?

Back 214

Mom always can, Dad can if there is an establishment of paternity by the same standards--wedlock if there is a court order, he acknowledges it, signs the birth certificate, other clear and convincing evidence

Front 215

Why enforce private wishes as stated in a will?

Back 215

Because that means that the person will have an incentive to create wealth, and to not waste money in conspicious consumption, increasing

Front 216

When can a posthumous child still inherit from his father?

Back 216

Deceased intestate parent affirmatively consented to 1. the posthumous reproduction and 2. to support any resulting child (Woodward v. Commissioner of Social Security)

UPA- Sect 707- the deceased individual is not a parent by assisted reproduction unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child


GA has a traditional statute- to inherit, child must be born within 10 months of decedent's death, be conceived before that persons death and they have to survive more than 120 hours after birht

Front 217

When can someone bring a suit to challenge paternity?

Back 217

UPC- Sect. 607- Time Limits to challenge paternity-Any such action must be brought no later than 2 years after the birth of the child

Front 218

Who can bring suit to challenge paternity?

Back 218

Under Uniform Parentage Act- Sect. 602- The only people with standing to bring a suit are -The child, mother of the child, man whose paternity of the child is to be adjudicated, a support enfocerment agency, and authorized adoption agency, a representative of an incapacitated person, or an intended parent
Under GA- any A little unclear- only a party in interest whose standing is in controversy (so an aunt could challenge standing here)

Front 219

OCGA 53-2-3- When can a parent take from a child born out of wedlock?

Back 219

Mom always can, Dad can if there is an establishment of paternity by the same standards---if there is a court order, he acknowledges it, signs the birth certificate, other clear and convincing evidence

Front 220

OCGA 53-2-1-Statute for kids born outside of wedlock

Back 220

Kids can inherit through mom,

Can inherit through father if born out of wedlock if there is a court order, he acknowledges it, signs the birth certificate, other clear and convincing evidence

Rebuttable presumption of paternity in GA=If there is a test establishing to a 97% certainty that the child is the child of that father, you take it to court where it can be rebutted by clear and convicing relationship

Front 221

Why enforce private wishes as stated in a will?

Back 221

Because that means that the person will have an incentive to create wealth, and to not waste money in conspicious consumption, inc reasing

Front 222

Why do people accumulate assets?

Back 222

1.) A miscalculation- person doesn't know when they are going to die
2.) People want to leave a certain amount to each legatee
3.) Some people just want to be productive-that doing more makes them feel better

Front 223

Limits on Estate Transfer- ok or not?

Back 223

Are usually ok- Look to the intent of the testaor- gift over (remainder goes to someone else) looks more like a condition, but if something looks like a forfeiture= not OK

Ex. “son must get married to Jewish girl within 7 years to retain the bequest” (Shapiro v. Union National Bank)

Front 224

· Duty of loyalty to one's clients is important - look at a set of factors

Back 224

○ How much of attn's income was made up of referrals from financial planner?
○ How many other attns does the financial planner suggest- is there some outside about why X is making these referrals
○ Need to see if what you as an attn does affects the financial planner's business
○ You don't want the financial planner in the room when you discuss the options with your client
○ Make sure you keep documentation on your clients

Front 225

Describe the UPC-Per Capita at Each Generation Approach

Back 225

Start at generation with first living person, then add up all living people at that level plus all dead who left issue- divide the estate into that many shares- give out shares to the live people, take the dead person (with issue)'s share and divide it by the number of living kids at the next level down whose parents haven't already received something

Front 226

How does GA's Intestate Statute Distribute Assets btwn kids and spouses?

Back 226

No diff between marital and non-marital kids

§ SS and 1 kid-- split evenly between kid and spouse
§ SS spouse and more than one kid- 1/3 to spouse and 2/3 to kids evenly

Front 227

GA's Intestate Statute- How does it go after kids and spouses?

Back 227

Spouse/Kids, kids' descendants, parents, siblings and their descendents, GPs, aunts and uncles, first cousin (switches here to per capita? Instead of per stirpes)
§ Nieces and Nephews share equally if no siblings of X alive, first cousins share equally if no aunt nor uncle alive

Front 228

UPC- Intestate Share for Anyone other than Spouses

Back 228

· UPC- Kids and other Heirs- Anything not passing to SS goes as follows
§ 1.) D's kids by representation, 2.) If no kids, to the D's parent's equally if both survive, or all to surviving parent 3.) If not surviving kids or parent, to siblings and their kids by representation 4.)If no surviving kids, parents or siblings (or their kids), but D is survived by GP or GPs kids, half of estate goes to D's parental GP and half to maternal GP and down

Front 229

What is the spouse's intestate share under UPC? Four options

Back 229

1.) All if D had no kids or parents or if all of D's kids were also kids of SS and the SS doesn't have any other kids

2.) First 200 plus 3/4 of any balance of the intestate estate if no kids but there is a parent of D

3.) First 150 plus 1/2 any balance of the estate if all of D's surviving kids are also kids of the SS or if SS has one or more surviving kids

4.) First 100 plus 1/2 of intestate estate if one or more of D's kids are not kids of the SS

Front 230

How are intestate shares of ancestors and collateral heirs determined? UPC v. GA

Back 230

UPC- Distribution should be per capita at each generation- Just like above

GA- per stirpes- strict- just like above

Front 231

Simultaneous Death Act

Back 231

Unless proof death was other than simultaneous, each presumed to have survived the other

Front 232

When can illegitimate child inherit from parents?

Back 232

1. Always the mother
2. Never the stepfather
3. The biological father if:
a. a court order has legitimated the child
b. During child's lifetime father signed a sworn affidavit or child's birth certificate
c. Clear and convincing E that he is the father
d. Genetic test was done

Front 233

GA- Collateral heirs

Back 233

For decendents- strict per stirpes,

So go -spouse, decendents (strict per stirpes), then to parents, then out to siblings, then to nieces and nephews who take by (modern per stirpes), then GPs, then aunts or uncles (or their kids), then first cousins (modern per stirpes)
§ If no first cousins- use table of degrees- find person who is closest (count up to closest relative, then count back down)
§ GPs split everything equally

Front 234

UPC and collateral heirs

Back 234

○ UPC- per capita at each generation- Just like above- UPC- look to first level with living heirs, to the extent that there is a GP- we send half assets up each line - Divide each side in half and look to a UPC per stirpes approach

Front 235

Elective Share- what is the minimum a spouse can recieve?

Back 235

50K - the supplemental allowance

Front 236

With Augmented Estates and the UPC, are irrevocable trusts in which settlor retains a life estate included?

Back 236

YEs- even though you wouldn't think so.

Front 237

§ Is mother's husband the father of the child- if no biological connection- UPC?

Back 237

If husband intended to be the father and there is a written document in which mother and donor both say he should be father= he is

Front 238

If the donor does not provide written consent allowing someone else to be the father of their child?

Back 238

If the parents live together for child's first two years, child is father's child

Front 239

Common Law Rule about adoptions and legal relationships with father

Back 239

○ Common law rule- legal relationship is cut off by adoption

Front 240

GA Statute about adoptions and exceptions to general rule

Back 240

GA- in a stranger adoption case- basic presumption that adoptee legal relationship is cut off by adoption - Two Exceptions for stepparent adoption
1.) Stepparent adoption where natural parent is still alive- child can inherit from natural parent, if you are being adopted by a stepparent (can have 3 parents)
2.) Stepparent adoption when spouse has died and SS gets remarried- child can still inherit through family line of original spouse

Front 241

GA- can father cut off by H2's adoption of his child still inherit from his child?

Back 241

They can inherit from him, but if the child was adopted during his life, he cannot inherit from them---however, if the child was adopted after his death, then his family line can still inherit from the child

Front 242

UPC- Adoptions and inheritance through H1

Back 242

UPC- 1. Doesn't matter whether parents are married for purposes of inheritance, 2.In a step-child adoption- child can still inherit from parents and grandparents

Front 243

UPC- Adoption and inheritance from child

Back 243

UPC- from child- by cut off line- is allowed as long as their was no abandonment and that line treated the child as theirs

Front 244

To challenge a presumption of paternity, -SoL

Back 244

○ UPA-To challenge a presumption of paternity- must be contested within two years (presumed father, mother, or other individual)

Under UPA- child has no statute of limitation to override presumption of parentage

Front 245

When does a presumption of paternity arise? Under the UPA

Back 245

1.) he and mother of child are married to each other(or attempted to marry each other) and child is born during marriage or 300 days after marriage is over
2.) after birth of child, he and mother married each other, he voluntarily asserted his paternity and 1.)assertion is in a record 2.)he is named as father on birth certificate and 3.) he promised in a record to support child as his

3.)for first two years of child's life, he lived with child and held out child as his

Front 246

Practical Diff between omitted spouse and elective share? Spouse gets the choice-

Back 246

○ Omitted Spouse- intestate share of probate assets- protects against diff harms- forgetfulness
§ Not any good for assets held in living trusts
○ Elective Share- includes non-probate transfers, probate transfers, etc. - protects the partnership concept of marriage

Front 247

UPC- Omitted Children or Children Testator believed dead

Back 247

If other kids- add those shares together and omitted kid gets average- other persons' shares abate rateably (unless the child was intentionally omitted or testator provided for the child outside the will)

If no other kids, gets intestate share unless substantially all of the estate is left to a SS who is also a parent of the child

Front 248

GA- Living Child testator believed dead

Back 248

Gets intestate share unless SS's share would be diminished, if there are other kids, then gets average of the kids's shares

Front 249

GA- Omitted Child

Back 249

afterborn child revokes a will, gets intestate share

class gift is presumed to be in expansion of that share

Front 250

What happens if there is an invalid constraint on a bequest?

Back 250

Bequest conditioned on W divorcing E, not ok- it is an invalid condition- then X will take the asset without the condition- strike the condition

Front 251

When deciding whether a constraint is valid - how does a gift-over clause work?

Back 251

Gift-over clause- makes it more likely that the condition is valid

Front 252

What are the approaches to abatement?

Back 252

Common law says- residuary, general, specific

UPC says same general order, but make sure to take testator's intent for general distribution plan into account- if it looks like order will disturb the general distribution plan, then look to the options each route would give you

Front 253

What is the difference between a substitute gift and an alternate taker?

Back 253

Alternate taker is specifically defined in UPC as the person written in a will who takes instead of lapse if the first giftee is dead

Substitute gift is what happens upon lapse, when giftee is dead, and her descendants take in her place

Front 254

Class Gifts and Anti-Lapse Statutes
UPC and GA

Back 254

UPC specifically applies to class gifts
GA- does not specifically mention class gifts, but it is very broad (applies to all decedents with descendants), so probably applies here

Front 255

Does a subsequent writing revoke a previous writing impliedly or expressly?

Back 255

Can be either- expressly if mentioned in the will- impliedly if the second writing makes a complete disposiiton of the testator's assets, or if the terms of the second contradict the first

Front 256

What different types of evidence does GA and UPC allow to counteract a presumption of revival?

Back 256

Both UPC and GA allow evidence of circumstances of the revocation and the contemporaneous declarations of the testator while GA also lets in written documents explaining intent

Front 257

Difference bewteen an intervivos and a living trust?

Back 257

Intervivos (compared to testamentary) is any trust set up during life of testator

Living trust is set up by testator to manage his assets, and usually testator also benefits from the living trust

Front 258

What's the difference between a discretionary support trust and a mandatory support trust?

Back 258

A discretionary support trust says "trustee may distribute funds for support and ed of beneficiary"

A mandatory support trust says that "the trustee must distribute funds for support and education of beneficiary"

Front 259

Common law doesn't like pour over wills or unfunded trust? Why?

Back 259

Unfunded trusts didn't have a trustee or a corpus- none of the traditional elements

Common law doesn't like pour over wills because they pour over into a trust without will formalities (although trusts set up in wills were ok)

Front 260

What are the differences in the powers the UTC and the REstatement delegate to the trustee?

Back 260

Restatement- is more liberal with powers, trustee is given more discretion when there is no named beneficiaries (doesn't have to pay them out, can just wait til end of trust period, then assets go to remainderman)

UTC- less liberal for trustee with unascertained beneficiaries

Front 261

When does the exclusion for annual estate taxes phase out?

Back 261

2010- so there will be no estate tax in 2010