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Law Outlines Wills, Trusts, & Estates Outlines

Wills Outline Blackletter Outline

Updated Wills Outline Blackletter Notes

Wills, Trusts, & Estates Outlines

Wills, Trusts, & Estates

Approximately 44 pages

Blackletter law outline for Wills, Trusts, and Estates....

The following is a more accessible plain text extract of the PDF sample above, taken from our Wills, Trusts, & Estates Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Chapter 1: Introduction: Freedom of Disposition

  • Succession – the transfer of property at death.

  • Intestate succession – the rules of law that take hold if there is no will upon death. Gives decedent an estate plan by default.

  • “dead hand” control – a person has wide latitude, in American law, to control the disposition of their property.

  • American law of succession is organized around donor’s freedom of disposition.

  • A donee’s interest in a future inheritance is a mere expectancy, one that arises from the donor’s freedom of disposition and that remains subject to the donor’s change of mind.

  • Incentive trust – typical way a conditional bequest is made.

  • Three categories of conditions that incentive trusts might impose:

    • Those that encourage the beneficiaries to pursue an education.

    • Those that provide a moral incentive (incentives that reflect the settlor’s moral or religious outlook or promote a particular way of living).

    • Those designed to encourage the beneficiaries to have a productive career.

    • Courts enforce incentives as long as they don’t violate public policy.

  • Total or General restraint on marriage – weight of authority holds that these, along with provisions encouraging divorce are void as contrary to public policy unless the donor’s dominant purpose was to provide support until marriage or in the event of divorce.

  • Partial restraint on marriage – prevailing rule is that the restraint is invalid as unreasonable “if a marriage permitted by the restraint is not likely to occur.” Likelihood of marriage is a factual question, to be answered from the circumstances of the particular case.

  • Circumstances in which a court may not privilege a donative intent:

    • Imperfect information

    • Negative externalities

    • Intergenerational equity

  • Forced Succession – decedent’s property could pass by mandatory or forced succession, such as a rule that provides for primogeniture or succession to a spouse, children, or other dependents or kin.

  • Freedom of disposition – decedent’s property could pass in accordance with the decedent’s declared wishes if they are reliably preserved, or if not, then in accordance with a default system of succession that tracks the probable intent of a typical decedent.

  • Confiscation by the state – Decedent’s property could be confiscated by the state on the theory that the decedent’s property rights terminate on death.

  • Estate Tax – a tax levied on the transferor’s estate that is paid before any transfers are made.

  • Gift tax – added to prevent avoidance of the estate tax (and the income tax) through inter vivos transfers to children and others.

  • Generation-skipping transfer tax – to ensure a wealth transfer tax at each generation.

  • Forced share – given to the surviving spouse; enacted by statute; typically, 1/3 of decedent’s estate. Found in separate property states (mostly).

  • T dies owning Blackacre. T has one intestate heir, X, but before dying T executed a will giving all of T’s property to Y. Blackacre will pass under the will to Y. Two years later, A dies, leaving Whiteacre “to T if T survives me, but if T does not survive me, then to T’s estate.” Who takes Whiteacre, X or Y ?

    • The issue is whether T’s will controls the disposition of property not owned by T at death but subsequently acquired by T’s estate. If T’s will controls, Y takes as the residuary beneficiary under the will. If not, X takes as T’s intestate heir.

  • UPC view on property owned at death:

    • All property owned at death as well as “all property acquired by the estate after the testator’s death” pass under the testator’s will. Subsequent administration if additional property of the estate is discovered after probate has closed.

  • What state law governs disposition of property?

    • Law of the state where decedent was domiciled at death governs the disposition of personal property (primary or domiciliary jurisdiction), and the law of the state where the decedent’s real property is located governs the disposition of real property (ancillary probate).

  • Nonprobate property – property that passes by will substitute outside of probate.

  • Inter vivos trust – trustee holds legal title to the trust property creating no need to change title by probate administration upon the death of the settlor.

  • Pay/Transfer-on-death Contracts – account custodian distributes the property at the decedent’s death to the named beneficiary. Bank, brokerage, mutual fund, and pension and other retirement accounts commonly allow. To collect all beneficiary needs to do is file a death certificate with custodian.

  • Life Insurance – paid by the insurance company to the beneficiary named in the insurance contract. Company pays upon receipt of a death certificate of the insured.

  • Joint Tenancy – decedent’s interest vanishes at death. Survivor owns the whole property free of decedent’s interest.

  • Personal representative – first step is appointment to wind up the decedent’s affairs. A fiduciary who collects and inventories the property of the decedent; manages and protects the property during the administration of the estate; processes the claims of creditors and files federal and state tax returns; and distribute property to those entitled.

  • Executor – person named by decedent who is to execute (carry out the terms of) the will and administer the probate estate.

  • Administrator – if will does not name executor, if executor is unable/unwilling to serve, or decedent dies intestate, the court will name a personal representative referred to as this. Usually selected from a statutory list of persons who are given preference, typically in the following order: surviving spouse, children, parents, siblings, and creditors.

  • Devise and Bequest – devise refers to land; bequest refers to personal property.

  • Statute od descent and distribution – governs intestacy in almost all states making the same persons intestate successors to both real and personal property.

  • Three core functions of probate: (1) evidence of transfer of title, (2) protects creditors, and (3) distribution of...

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