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141 Cards in this Set

  • Front
  • Back
DEATH WITHOUT ISSUE
if a person dies without issue, jurisdictions provide for alternate distributions to parents, siblings, and other relatives in varying order of priority.
"DEAD HAND" CONTROL
A decedent may condition a beneficiary's gift on the beneficiary behaving in a certain manner as long as the condition does not violate public policy.
What is the purpose of Incentive Trusts & The Dead Hand ?
To incentivize beneficiary to not be worthless heiress, etc.
WHEN "DEAD HAND" IS UPHELD?
-> What are the 3 Allowable Conditions?
It is generally upheld unless the condition constitutes a complete restraint on marriage, requires a beneficiary to practice a certain religion, encourages divorce or family strife, or directs the destruction of property.

Allowable Conditions:
i. Pursue education
ii. Moral
iii. Encouraging productive career
WHO TAKES A DECEDENT'S PROPERTY 1ST?
Depends first on whether the property is non-probate or probate property.

a. If it's Non-probate property: limited to 4 things.
b. If it's probate property then:
1. Testate (will)
2. Intestate (no will)
WHAT IS NON-PROBATE PROPERTY LIMITED TO?
1. Property held in joint tenancy
2. Life insurance contracts (including all contracts w/a "payable-on-death" clause)
3. Legal life estates and remainders and
4. Inter vivos trusts
HOW DOES NON-PROBATE PROPERTY PASS?
Pursuant to the terms of the non-probate instrument.

Nonprobate = property that passes outside of probate under an instrument other than a will
a. Joint tenancy property
b. Life insurance
c. Contracts w/ Payable on Death (POD) provisions
d. Trusts
e. Retirement benefits
f. Land trusts (for real estate)
HOW DOES PROBATE PROPERTY PASS?
Pursuant to the terms of the decedent's WILL, otherwise through intestacy.

1. Probate = property that passes thru probate under the decedent's will or by intestacy
a. Not in joint tenancy (in the decedent's name alone)
b. Does not otherwise pass by contract
DESCRIBE THE PROCESS OF PROBATE
1. Probate is the default.
=> A decedent must take affirmative steps (execute a valid will or create a valid non-probate instrument) to avoid having the property pass through probate.

2. The probate court appoints a personal representative. He or she has the job of collecting the decedent's probate assets, paying off creditors' claims and distributing the property to those who are entitled to receive the property.
INTESTATE SUCCESSION
Formal name for process involved in deciding "who gets what" when a decedent dies without a will, with a partially valid will, with an invalid will, or with a will that does not dispose of all the decedent's assets
HOW TO ADVISE A PARTY ABOUT HIS/HER ESTATE PLANNING
The key objectives to keep in mind:
1. honoring the party's intent
2. avoiding estate taxes
3. avoiding probate
PROFESSIONAL RESPONSIBILITY
An attorney owes a duty of care to intended beneficiaries, and Int. Benf. are 3rd party beneficiaries w/respect to the contract between the attorney and the testator. Int. Benf. have standing to sue for malpractice.
SHARE OF SURVIVING SPOUSE
Established statutorily and is the amount of the estate the surviving spourse is entiteld to receive under the laws of intestate succession.
SHARE OF CHILDREN AND MORE REMOTE DESCENDANTS
The share of children and more remote descendants (such as parents, siblings, nieces, uncles, second cousins twice removed, in varying order of priority) generally comes after the surviving spouse is given his/her share of the intestate estate
WILL
Document detailing where and to whom the decedent wants property to be distributed upon death.
STANDING TO CONTEST
The P must demonstrate that if the will is denied probate, the P will take over the decedent's estate
WILL EXECUTION REQUIREMENTS
Formalities imposed by jurisdictions on their domicilaries in order to make a valid will. To make a valid will:

1. Must be of sound mind
2. Intending to make a will
3. At least 18 years old
4. Establish the objects of his bounty.
5. Must be in writing, signed by the decedent and signed by 2 competent witnesses
INTERESTED WITNESSES
People (or spouses of people) who take under a will. Depending on the jurisdiction, the will may be deemed invalid, or the will may be deemed valid, with only the gifts to the interested witness being deemed invalid.
CODICILS
Amendments to a will and must be executed with the same testamentary formalities (writing, witnesses, decedant's signature) that a will must comply with.
REVOCATION OF WILL
1. By cancelling
2. Obliterating
3. Tearing up
4. Torching will
5. Operation of law
6. Signing of new will
DEPENDENT RELATIVE REVOCATION (CONDITIONAL REVOCATION)
Allows a court to probate a revoked will because the new will was invalidly executed as long as the court is convinced that the decedent would have wanted the revoked will to be given effect if the new (but invalid) will can't be probated.
SPOUSES FORCED OR ELECTIVE SHARE
Statutory amoutn a jurisdiction provides for the surviving spouse, no matter what the will indicates.
TRUST CONSTRUCTION
Trustee owns legal title.
Beneficiaries own equitable title.
Trust must have some property in it. There must be at least one beneficiary in addition to a trustee, or else the trust fails. Must be at least 1 trustee
REVOCABLE TRUST
Where the donor (grantor) retains the power to revoke the trust prior to his death. For income and estate tax purposes, property placed in a revocable trust is not considered to be a complete gift.
IRREVOCABLE TRUST
One where the donor does not retain the power to revoke the trust. Property placed in an irrevocable trust is considered to be a completed gift for income and estate tax purposes.
MODIFICATION OF TRUSTS
Revocable trust may be modified by the donor. Can be modified with the consent of the donor and all beneficiaries.
TERMINATION OF TRUSTS
Terminates according to the terms of the trust or when there are no trust assets left in the trust
DUTIES OF TRUSTEES
The duty of care requires that the trustee pay close attention to all aspects of trust administration, including ensuing that trust assets are safe, making necessary tax filings, litigating and settling claims, and ensuring that distributions are made timely and properly. The trustee must place the interests of the trusts before his own, which means there can be no self-dealing or competing with the trust. The trustee is required to administer the trust and invest its assets in an impartial manner.
PRUDENT PERSON RULE
Requires trustees to act prudently when investing trust assets and not invest in speculative investments which might dissipate trust assets.
CY PRES
When a charitable trust's purposes are no longer applicable. This doctrine allows the trust to continue with the trust's purposes being modified to comport as nearly as possible with the trust's original purposes.
ADOPTED CHILDREN
Take from their adoptive parents in the same manner as natural-born children. Once adopted, the are not allowed to inherit through their birth parents, in others, they are allowed to inherit through their deceased birth parent, such as in the case of one parent dying, the surviving parent remarrying, and the children being adopted by the step-parent. The children don't lose their right to inherit through their deceased birth parent.
INTESTATE SUCCESSION
Process involved in deciding under state law who gets what when a decedent dies:

1. Without a will
2. With a partially invalid will
3. With an invalid will
4. With a will which does not dispose of all the decedent's assets.
ADVANCEMENTS
Gifts given in lieu of what one might inherit from the decedent. Jurisdictions generally require a writing to prove that a lifetime gift was an advancement and not just a lifetime gift.
SIMULTANEOUS DEATH
These statues determine the order of death when it is difficult to determine who dies first. This is important because in order to inherit from a decedent, one must survive the decedent. A person (or his estate) wishing to inherit has the burden of proving that he survived the decedent.
WILL
Document detailing where an to whom the decedent wants property distributed at death.
JURISDICTIONS
Jurisdictions have full faith and credit clauses in their statutes and consider a will valid even though it does not comply with its formal requirements so long as:

1. The will complies with the laws of the jurisdiction where executed, or the laws of the decedent's domicile.

2. The will does not offend the public policy of the jurisdiction where the will is being probated.
HOLOGRAPHIC WILLS
State-specific exception to the "two witnesses" requirement imposed by statute. Holographic wills must be signed by the decedent, and be completely (or substantially) in the decedent's handwriting.I
INTEGRATION OF WILLS
Integration of wills is a concept used by courts to determine the contents of a will. All of the connected papers are considered part of the will.
CODICILS
These are amendments to a will, and must be executed with the same tesetamentary formalities (writing, witnesses, decedent's signautre) that a will must comply with.
REVIVAL
In some jurisdictions, a decedent may revive a previously revoked will.
CONDITIONAL REVOCATION
Allows the court to probate a revoked will because the new will was invalidly executed as long as the court is convinced that the decedent would have wanted the revoked will to be given effect if the new will can't be probated. Doctrine of presumed intent.
PARTIAL REVOCATION
Occurs when decedent intends only to revoke part of his will, by crossing out a section or by operation of law.
CONTRACTUAL WILLS
If a decedent enters into a contract not to revoke a will, it may not be revoked.
LAPSED LEGACIES
A beneficiary must survive the decedent in order to inherit. Failure to survive means the gift lapses (unless the anti-lapse statute has been enacted).
2 TYPES OF ADEMPTION
1. Ademption by extinction- applies to specific bequests or devises. If the decedent does not own property at the time of death, the gift is ademed.

2. Ademption by satisfaction occurs when the decedent gives the beneficiary the gift prior to his death, instead of passing it to the beneficiary upon his death.
DISCLAIMERS
A beneficiary does not have to accept an inheritance. In order to disclaim a gift, the disclaimer must be in writing and timely made. Once made the disclaimer is irrevocable
ABATEMENT
The doctrine of abatement applies when the amount of gifts made in the will exceeds the amount of assets in the estate. Residuary gifts abate first, the general or demonstrative gifts, and finally specific gifts.
CLASSIFICATIONS OF GIFTS
1. Specific
2. Demonstrative
3. General
4. Residuary
AGE REQUIREMENT
A decedent must be at least 18 years old to have a valid will
MENTAL CAPACITY
A decedent must possess sufficient mental capacity to make a will
UNDUE INFLUENCE
A will will be denied probate, either partly or completely, of the will is the result of fraud, duress, or undue influence.
MISTAKE
If the decedent lacks the intent to make a will, the will is not valid.
NO-CONTEST CLAUSES
Clauses in wills that state that if the beneficiary contests the validity of the will, the beneficiary's gift under the will is forefitted.
STANDING TO CONTEST
In order to have standing to contest a will, the plaintiff must demonstrate that if the will is denied probate, the plaintiff will take under the decedent's estate.
INTER VIVOS GIFTS
If a decedent gives a gift before dying, it is an inter vivos gift passing outside of probate
JOINT TENANCY
The surviving joint owner takes the property in fee simple by operation of law.

Property joint tenancy says that anything that can be titled can be put in joint tenancy (i.e: bank accounts, real estate such as a home, investment account, all titled things).

It is very common for married couples to have all property in joint tenancy.
- In Illinois there is another form of joint tenancy, which says the couple are tenants by entirety which means joint tenants as husband and wife.
--> Setting up a joint tenancy immediately gives each joint tenant full ownership of rights.
-- This means that either person could come in and withdraw all the funds.
-- This also means upon death, the surviving joint tenant gets full ownership rights in that account, automatically by the operation of law.
-- This is true regardless of what the will says.

The one exception to this is tenancy in common (typically only seen in relation to real estate) => If you leave a house to children, it will be titled to them as tenants in common and they each have equal share.

* Otherwise look at the title to determine whether it is probate property.
EXECUTION REQUIREMENTS
As with wills, the maker has to be of sound mind, and there must be a signed document.
REVOCATION
Unless the document states how a living will of health care proxy is to be revoked, it can usually be done under teh same rules as those for revoking wills.
AUTHORITY OF AGENT OR ATTORNEY-IN-FACT
The agent has the authority detailed in the document, which provides for the agent to make a decision to withhold life-sustaining treatment when there is no chance of recovery.
TRUST RES
(trust corpus)
The trust must have some property in it
REQUIREMENT OF BENEFICIARY
There must be at least one beneficiary in addition to a trustee or else the trust fails.
REQUIREMENT OF A TRUSTEE
There must be at least one trustee (though a court will appoint a trustee rather than having the trust fail).
TESTAMENTARY TRUST
Trust created under the decedent's will
POUROVER WILL
A will which pours over any of hte decedent's assets injto an existing trust is referred to as a pourover will.
CHARITABLE TRUST
A trust which has a charity as the beneficiary. It's not subject to RAP.
PROTECTIVE TRUSTS
These allow donors to shiedl their assets from creditors while still retaining power over the trusts assets.
DISCRETIONARY TRUST
Trust where the trustee hsa the discretion over whether an to whom to distribute trusts income and assets.
SUPPORT TRUSTS
A trust in which the trustee is required to spend trust income and/or corpus support a beneficiary.
SPENDTHRIFT TRUSTS
Trust which provides that a beneficiary can't voluntarily or involuntarily assign his beneficial interest in the trust.
POWERS OF INVASION
For tax or other reasons, beneficiaries are sometimes given the power to demand trust corpus or income.
PRUDENT PERSON RULE
The prudent person rule is a concept which requires trustees to act prudently when investing trust assets, and not invest in speculative investments which might dissipate trust assets.
DUTY OF CARE
The trustee must pay close attention to all aspects of trust administration, including:

1. Ensuring trusts assets are safe.
2. Making necessary tax filings
3. Litigation and settling claims
4. Ensuring that distributions are made timely and properly.
DUTY OF LOYALTY
Trustee must place the interests of the trust before his own, sso there can't be any self-dealing or competing with the trust.
DUTY TO ACT IMPARTIALLY
Trustee is required to administer the trust and invest its assets in an impartial manner and not favor current income beneficiaries at the expense of remaindermen.
PRINCIPAL AND INCOME ALLOCATIONS
The trustee must allocate principal and income in an impartial manner, so as not to favor one class of beneficiaries over another.
POWERS OF APPOINTMENT
Power of appointment is given to a beneficiary allowing the beneficiary to choose who will become the next beneficiary. This allows the donor to delegate and postpone until a later date choosing who the next beneficiary will be.
CHILDREN BORN OUT OF WEDLOCK
Are treated the same as natural children and have the same rights under inheritance laws, provided proof of parenthood is made.
WHAT IS THE DEFAULT DISTRIBUTION SCHEME?
The default distribution scheme is intestacy.

=> If a decedent fails to dispose of all of his/her property through non-probate instruments or a valid will, the decedent's property passes pursuant to the state's decedent and distribution statute to the decedent's heirs.
A TYPICAL DISTRIBUTION SCHEME
(Get details of how much each takes in IL).

Generally:
1. Surviving spouse
2. Issue
3. Parents
4. Issue of Parents
5. Grandparents/ issue of grandparents
6. next-of-kin
7. Escheats to the state
AN "ISSUE"
=> a person's children or other lineal descendants such as grandchildren and great-grandchildren.
=> It does not mean all heirs, but only the direct bloodline.

=> Occasionally, there is a problem in determining whether a writer of a will or deed meant issue to include descendants beyond his or her immediate children.
=> While a child or children are alive, issue refers only to them, but if they are deceased then it will apply to the next generation unless there is language in the document which shows it specifically does not apply to them
ESCHEAT
=> The power of a state to acquire title to property for which there is no owner.

=> The most common reason that an escheat takes place is that an individual dies intestate, meaning without a valid will indicating who is to inherit his or her property, and without relatives who are legally entitled to inherit in the absence of a will.
=> A state legislature has the authority to enact an escheat statute.
BEQUEST
- A bequest is the act of giving (not the act of receiving) property by will.
- In legal terminology, "bequeath" is a verb form meaning "to make a bequest."
INCORPORATION BY REFERENCE
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
DO COURTS ALWAYS LISTEN TO WHAT THE TESTATOR WANTS ENFORCED IN THEIR WILL?
-- Broad latitude is usually given but you cannot require any illegal act.
-- One statute outlines a category of things deemed to be against public policy:
1. Anything that encourages divorce.
2. Anything that prohibits marriage is against public policy, as is prohibiting having children. That is deemed a fundamental right.

The law is often about line drawing and in this area it’s hard to draw the line.
Shapiro Case
- Will says son is excluded if he doesnt marry jewish girl
- The son argues that the conditions violate the Constitution and are counter to public policy.

-Court: The court says if the will is enforced, it is not a restriction on who he can marry; he just isn’t entitled to receive his share of his father’s estate.
Reasoning: You don’t have to give property to children. Since you could cut them out all together, you are entitled to add conditions. Secondly, the court looks at the underlying required act: there is nothing wrong or offensive about marrying a Jewish woman. It’s helpful to look at the underlying required act.
-- The required act is not unduly restrictive. If it is something that just shocks the conscious of the court it will be thrown out, if something is illegal it will be thrown out.
Incentive Trust
Reflects concern on the part of clients that children or grandchildren should turn out to be responsible and self-sufficient.

EXAMPLES: One example is that they will provide for a significant cash payment if children obtain a full time college degree. Another one is setting up a trust to provide benefits as long as children are employed full time. They could also tie the trust benefits to their children earning a certain income on their own, for example, $100,000. Another example is tying trust benefits to good character.
What's wrong w/ the "incentive trusts" examples?
In the first example, the children could choose careers that didn’t require a college degree. What about requiring full time employment? They could be living in a bad economy, could be making an honest effort to find a job. There are people who might want to stay home with their children, do volunteer or charity work. With that kind of condition you could penalize someone who wants to do something worthwhile. With the $100,000 condition, the client could be rewarding the wrong type of behavior. The fourth example involves subjective standards. What is considered to be good character? Who is the judge of that? People have different values and different judgments. What is deemed to be good character can certainly change with time? People should create incentive trusts with their eyes open.

They need to understand these issues before creating the trust.
What is "Intestate"?
Intestate = dying without a will. (Or without a valid will).
Who gets property if you die without a will?
For most people, most of their property will not be subject to probate bc most property is not controlled by a will.
What is the probate property of a person who dies w/o a will is governed by?
The probate property of a person who dies w/o a will is governed by the state's statute of descent and distribution.
a. Personal property -- governed by state of death
b. Real property -- governed by state of location of property
c. ILLINOIS -- 755 ILCS 5/2-1, 2-2, 2-3, 2-4 (THESE RULES ONLY APPLY IN CASES OF INTESTACY)
What does ILLINOIS -- 755 ILCS 5/2-1, 2-2, 2-3, 2-4 pertain to?
=> THESE RULES ONLY APPLY IN CASES OF INTESTACY

--> 2-1: Distribution
1. If there is a surviving spouse and children: 1/2 to spouse and 1/2 to children
2. No surviving spouse or children --> Goes to siblings and parents in equal shares

-->2-3: Posthumous children
1. Receive the same share of estate as it would if parent had died during his/her lifetime

-->2-2: Illegitimates and adopteds
1. Illegitimates dying: Parents won't inherit unless they had a parental relationship & provided for the child's support.
2. Illegitimates inheriting: inherits from mother but not from father unless father has admitted paternity or it is has been proven through a DNA test etc.

-->2-4: Adopteds
1. Adopteds take from their adoptive parents unless they were adopted after the age of 18.
2. Adopted child does not take inheritance from natural parent.
What are the exceptions to 755 ILCS 5/2-4?
EXCEPTIONS:
Adopted child CAN take inheritance from natural parent
1. If the adopted child is adopted by someone w/in the natural family
2. If the natural parent died b4 the child was adopted
What is the Function of Probate?
a. Provides evidence of transfer of title to the new owners
b. Protects creditors
c. Distributes the decedent's property
What is probate property (vs. non-probate property)?
Probate is property that is:
1. First not in the joint tenancy and
2. Second, it is property that does not pass otherwise by contract.
Examples of property that pass by CONTRACT.
1. Life insurance. => An insurance policy is contract between you and the insurance company.
--Proceeds pass by means of a beneficiary designation filed with the company.
2. Payable on death bank accounts => where the account is in your name but is POD to you and select the beneficiaries.
3. Retirement accounts (= a large % or non-probate property). => ie: a traditional pension plan, 401K or IRA, => if you die having those plans, it passes to your beneficiary upon your death
Exception: When can retirement accounts go into probate?
1. If you designate your beneficiary, under your insurance for your 401K or your IRA, as your estate than it is probate property.
2. In addition, people will sometimes designate a beneficiary and that person is deceased and they forget to add another beneficiary.
--- If there is no designated beneficiary alive than it goes to the state and can become probate property.
What is two of the MOST important types of non-probate properties?
1. A TRUST set up during the deceased’s lifetime.
2. A land trust (= a form of trust where the land trustee holds a dual title).
--> Their only job is to have the property put in the trustees name; there are no other duties.
--> The person who puts land into a land trust is typically the beneficial owner. This is the person who calls the shots on everything. Typically the land trust will also say who gets the property on the beneficial owner’s death.
--> Just like insurance and retirement plans, this is subject to a contract.
What is a trust?
A trust is really nothing more than a contract with the client who is called the grantor and the trustee.
---> There is a trust agreement that says you need to pay the funds to my beneficiary in the way I have provided.
----> Assets in this contract are not subject to probate.
Can you change or revoke a trust?
If you want to change or revoke the trust you can do so by a trust amendment.
=> The grantor can amend the trust at any time during his or her life.
Which statute controls what happens when you die without a valid will?
Illinois the statute is 7555 ILCS 5-2:

If you die without a will the state will write one for you. This applies to both real and personal property and the real estate of a non-residency.
What is right of representation?
If the deceased has a surviving spouse and children, the spouse gets half and the children get half by right of representation (2-1A).
A descendant gets an equal share with other descendants. If there is a deceased descendant; their children would step into the shoes of that person. The entire group shares one half.
---> So if there are 3 children, each child gets 1/3 of one half.
How is it determined who gets represented first?
Look to the statute (= reflects the desires of the typical person):
-- If there is no surviving spouse, the typical person would want their assets to go to their children.
-- If there are no spouse and no kids, then it goes to the siblings or parents in equal shares.
-- If there are no siblings or parents than you look at descendants of grandparents, nieces and nephews.

The statute as you read it takes you further along the line. Ultimately you end up with a catchall, if you can show some family relationship.

The last category is if there are no family members at all left, and then the money goes to the state of Illinois.
What happens if someone DIES AS an illegitimate (born out of wedlock)?
2-2 says:
- If someone dies as an illegitimate, their estates are distributed the same as anybody else.
- HOWEVER, A parent of an illegitimate won’t inherit unless they actually have a parental relationship with the child and provided for the child’s support.
What happens if someone IS an illegitimate when the testator dies?
Inheritance as an illegitimate: 5-2-2H
-- A child born out of wedlock is an heir of the mother or any maternal ancestors. But the child doesn’t take from the father unless the father acknowledged the child as his own, or the father was established by clear and convincing evidence like a DNA test.
-- This prevents long lost children from appearing and taking money without proof.
What happens if someone is adopted?
5-2-4A:
Adopted children take from their adoptive parent, unless:
1. they were adopted after the age of 18 and
2. never lived with the adopted parent as a minor.
Minery Case
- Alfred adopted his wife Myra to make her eligible to inherit under provisions of his mother’s will.
- Court: looks suspicious; thwarts the intent of the ancestor; and cheats the rightful heirs
Can an adopted child take from natural parents as well as adoptive parents?
5-2-4D
No: the child cannot take from the natural parents because the child is viewed as a child of the adoptive parent. Any legal link to the natural parent has been severed.

Exceptions:
1. If the adopted child is kept within the natural parent’s family.
2. If the natural parent died before the child was adopted, then the child is an heir of the deceased parent.
Hall case
- The children's natural dad died so their step dad adopted them. The brother of the natural dad died and he had no heirs so his estate went to his surviving brothers and sisters and their children (these kids). The court looked to see if the adopted children could get part of the estate.
- Court: Because they were adopted, they lost all right to the estate.

* When we talk about the rights of adopted children and illegitimates, we are only talking about somebody who dies without a will.
--> These rules do not apply to the interpretation of will and trust documents.
How do we determine the status of adopted children under wills and trusts?
Cardinal rule of will and trust construction => What was the grantor’s intent?

-Probate code 2-4F: refers to an actual will or trust.
=> child born to an adopted parent will be regarded the same as a natural born unless the child is excluded by clear and convincing evidence.
* How does IL handle illegitimates under wills and trusts?
In Illinois LAW, if you have a will and trust, illegitimates are not included unless you specifically, expressly include them.

*However, although there has NOT been a statutory fix, societal attitudes toward children born out of wedlock have changed, and so have judicial attitudes. Overall these children will generally be included unless there is intent to exclude them.
What happens to a child born after a man dies?
In general, as a matter of will and trust law, a child who is in gestation, or not born yet, is still regarded as a child.
How are shares divided among Decedents? (3)
1. English per stirpes -- Treats each line of descendants equally.
a. If there is a predeceased child, his share drops down to his children to be divided equally among them.
2. Modern per stirpes -- Treats equally each line beginning @ the closest living generation.
3. Per capita at each generation -- Treats equally each taker at each generation with the other takers in that generation.
What happens if there is a simultaneous death (ex: car crash)?
=> You have to decide who survived whom. If the husband died first, everything would go to the wife.
Simultaneous death 755-ILCS 5-3-1
--> To determine who would get the wife’s estate => You would look at the statute to determine which relatives would get the estate.
---> If the husband survived the wife, the estate would go to his relatives so it makes a difference who survived.

*If you can’t tell who died first and neither have a will, the husband’s property will be distributed as if he survived his wife and his property would go to his family members AND the wife will be regarded as having survived the husband and her own property would go to her family members.
Tylenol case
A couple just back from their honeymoon took Tylenol and died within minutes. The case involved $100,000 insurance policy where the wife was the beneficiary. The question was whether the wife survived her husband. If so, her family would get the policy.
--> The court relied on medical evidence and ultimately concluded that the wife did survive for a few minutes after the husband died so the wife’s estate went to her family.
What is the General Rule Re:adoption?
(Hall v. Vallandingham)
General Rule (including IL): adoption is considered ‘”rebirth” into a completely different relationship, and once a child is adopted, the rights of both the natural parents and relatives are terminated. Most state laws agree w/ this (including IL).
What's the rule, re: adopting a person so that they get covered by a previously existing will?
(Minary v. Citizens Fidelity Bank & Trust Co.)
Adoption of an adult for the purpose of bringing that person under the provisions of a pre-existing testamentary instrument when he clearly was not intended to be so covered should not be permitted.
What does the law say about minors?
The law says that you can only handle financial transactions if you are of the majority age and not under mental or physical disability.
-->The majority age is considered to be age 18.
--> If a person is under the age of 18, and they inherit $, they lack legal capacity and their money must be handled through a guardian
What are the two types of guardians?
1. Guardian of a person => responsible for the physical well being of the disabled person. This includes ensuring that they are fed, clothed, and have received medical care.

3. Guardian of the estate => handles the assets and is responsible for all financial transactions and providing the funds necessary for well-being.
Which statute outlines guardian duties?
755 ILCS 5-11-13
Pgph A: = a guardian of a person shall provide custody, nurturing, and education.
A-17 + 18: = relates to the guardian for a disabled person.

Pgph B: talks about the duties of a guardian of the estate.
=> the care, management and investment of the estate.

755 ILCS 5-11-8 = how a guardian gets appointed
--> you have to set up a hearing date + fill out a petition.
--> if the person is under 18, you must ask (q's on form) who is the family? What is the birth date? Who has custody of the minor? What is the value of the minor’s estate? => The judge will then declare the guardian appointed.

Are there are competing persons who want to be the guardian? => the court has to choose between the two. If a parent, that person automatically is the guardian. However, disagreement usually over who would be the guardian of the estate => most likely be the parent unless the judge believes the parent cannot handle the finances.
How does the court handle disabled ppl?
5-11- A-2 defines a disabled person: must be issue of fact. Is the person in fact disabled? (

-Must show clear and convincing evidence
- Must define relation to the petitioner and reasons for guardianship
-Documents supported by a doctor/psychiatrist
What is a GAL?
A lawyer experienced in generating reports which explain how a person’s condition affects their ability to handle their own affairs.

They will do an independent examination with the person. They will interview them, talk to the family then issue a report with their own findings. The judge will rely heavily on what the GAL has to say.

--> The disabled person can oppose the petition. They are entitled to hire their own counsel or doctors and could demand a jury trial. Family members could also oppose a finding.
What happens if both parents die while a child is a minor and their wills do not designate a guardian?
If both parents die while a child is a minor and their wills do not designate a guardian, the ct will appoint a guardian
What does a guardian decide?
Guardian decides where minor lives, how minor is educated, and when minor receives medical care -- care of minor
What are the 3 Property Mgmt Options (Guardian of the Estate)?
1. Minors are considered incompetent to handle inherited $$
2. A "guardian of the person" has no authority to deal w/ the child's property
3. If parent dies intestate, leaving property to the minor, the ct must appoint a guardian/conservator of property
What are the 3 property mgmt alternatives to Guardian of the Estate?
1. Guardianship of the Property
2. Conservatorship
3. Custodianship
What is the Guardianship of the Property responsible for?
This guardian has the duty of preserving the specific property left to the minor and delivering it to the ward at age 18, unless the ct approves a sale, lease, or mortgage. [It should be avoided; expensive and time consuming].
- Appointed by court (gets a legal document to handle the affairs)
- Must submit a budget 2 d Ct & get approval for Ward investments.
What kind of guardianship investments are permissible?
Permissible investments:
-US treasuries
- insured accounts
- community bonds issues by state and local governments
- Corporate bonds have to have a top rating.
- Allowed to invest in stocks but they have to be conservative investments and can’t exceed two thirds of the estate.

* To make a change in investment portfolio you need to ask permission from the judge
How will a judge weight guardian investments if a ward needs a lot of income v.s if the money has to last a long time?
The judge is concerned about the guardian losing the money and will check to make sure that these investments yield sufficient income and appreciation to support the ward. If a ward needs a lot of income, a judge will tilt towards investments that yield a lot of income. If the money has to last a long time, the judge will be concerned about investments that will depreciate in value.
What is a Conservatorship?
Conservator is given "title as trustee" to the protected person's property, as well as investment powers similar to those of trustees. Terminates at age 18.
What is Custodianship?
Custodian is a person who is given property to hold for the benefit of a minor under the Uniform Transfers to Minors Act (UTMA -- 760 ILCS 5/17).
What is a Guardian ad Litem?
=> a lawyer who is appointed to make her own evaluation of a disabled person
a. Disabled persons can challenge and oppose a finding of their incapacity
What are limited guardianships?
=> only for certain functions
iv. Procedural:
1. Letter of office appointing
2. Guardian must submit a budget
When does guardianship end?
- Guardianships for minors end when the party turns 18.

- Guardianships for disabled person lasts as long as the disability lasts.
What's one popular alternative to guardianship?
Both trust and power of attorney are substitutes for guardianships.

1. A Power of attorney can give someone the power to deal with property when the client has become mentally disabled.
-- Can avoid the need for guardianship which can be time consuming and expensive.
-- Power of attorney is nothing more than a formal legal document whereby you appoint an agent to act on your behalf.
---> It is important to specify to what extent he can act on your behalf. You can either give virtually unlimited power to your agent or you can limit it. It’s a matter of contract and it’s up to you how much power you give that attorney or agent.
How does a power of attorney work? (Statute?)
760 ILCS 20-1 (Pg 149): Uniform transfer to minors
=> says if you are giving funds to a minor, it will instead be given to a custodian under the transfer to minor’s act.

-> In your will or trust when giving money to a minor, you say that you give funds to a custodian for the benefit of the minor.
=> Gives the custodian the right to hold the money for the trustee. (The account name would be under the custodian’s name and the custodian is only supposed to use the funds for the benefit of the minor.)
=> When the minor reaches age 21, the funds are distributed to the minor, no strings attached.
What's the downside of a power of attorney?
The negatives to this process are that nobody is watching the transactions.

--With a guardianship the judge is watching so they do give some protection.
--You want somebody to watch things so trusts are often a good alternative.
What are the two types of power of attorney?
1. One is for property (755 ILCS 45/3-3)
2. The other is for healthcare. For healthcare it gives the agent the power to make healthcare decisions for you if you are unable to do so yourself. This includes consent to medical treatment or surgeries. It can also give the power of life and death if it discusses when and under what circumstances to pull plug.

=> Illinois has a statutory form to use because the statue basically says that if you use this form, it will be valid, legal and unchallenged.
=> There is also a statutorily approved form for property.
Which statute deals with Powers of Attorneys? (When do they become effective?)
755 ILCS 15-3-3 (Pg 109).
It says:
--> You can appoint an agent and give that agent power over your property including bank accounts, real estate, investment accounts, etc.
--> You can give your agent the rights to draw funds from your account, pursue litigation, file tax returns.
--> They could do anything with respect to your finances or you could limit agent powers.

Often these powers of attorney only become effective when you become disabled or unable to handle your affairs, although you could have them effective immediately if you wanted to.
What are Durable Powers of Attorney?
A durable power of attorney => If you have the power of attorney kick in only when you become disabled, as long as you were competent when executing it, even if you were in a vegetative state, that power of attorney is still good.

=> An appointed agent to act on your behalf, to some extent (either full or limited)
a. Benefits: easier and less expensive than guardian
b. Problems: no court supervision, so choose someone u really trust
When do Powers of Attorney end?
1. An ordinary power of atty --> power of the agent terminates upon the principal's incapacity

2. A durable power, unlike ordinary power, continues throughout the incapacity until the principal dies.
How are Powers of Attorney different from trusts? (4)
Differences from a trustee:
i. Can not make transfers after the principal's death
ii. If agent dies, his power terminates until a successor agent is named by the principal
iii. Atty does not own the property
iv. Third parties more readily deal with trustees than agents