Wills

• Three Types of Documents

  1. Transfer of property at death
  2. Property management during life
  3. Care of self in medical matters
• Potential Docs for Transmission of Property at Death

  1. Will
  2. Revocable and irrevocable trusts
  3. Deeds
  4. Life insurance bennys
  5. Bank and investment accounts
  6. Transfer on death designation for account/investment
• Property Management Docs

  1. Durable POA
  2. Multi-party bank accounts
  3. Trusts
  4. Partnership agreements
  5. Beneficiary designations
  6. Marital/pre-nuptial agreement
• Care of Self Docs

  1. Living will (advanced directive for health care)
  2. Medical POA
  3. Guardianship
  4. DNR
• Non Probate Devices or Property Will Substitutes

  Property that passes upon the property owners death by a legal instrument that is not a will
• Small Estate Affidavit

  Small estate with less than 50K, need - your probate estate needs to be less than 50k and the whole estate needs to go to probate
• Immediate POA

  Works right away, doesn't need to wait for incapacity
• Springing POA

  Occurs when incapacity starts (need to show incapacity)
• Burial and Disposal

  1. Next of kin has right to make this decision unless something has been pre planned and pre-paid
  2. Organ donation is on the advanced directive
  3. Full body donation is not on the advanced directive
• Restrictions on Donative Freedom

  1. Spousal share (elective share)
  2. Creditors
  3. Estate tax
• Engagement Letter Should Include

  1. Names of client and who is NOT the client
  2. Scope of representation (What docs/legal services are bring provided)
  3. Legal fee structure
  4. Joint representation provisions
• Intestacy Statutes

  1.      Starts with spouse who survived

  2.      Comes from the values of the legislature, social norms, assumptions

  3.      Included here are spouses, descendants, parents, siblings
• Strict Per Stirpes (AKA English Per Stirpes)

  Divided into shares at the generational level closest to decedent, even if that level is all dead; then distributed along the bloodline
• Modern Per Stirpes

  Initial division of decedent’s property made at generational level closest to decedent in which one or more individuals are alive; then distributed along the bloodline
• Per Capita @ Each Generation

  Initial division like Modern, but undistributed shares are combined and equally divided among next generation
• Advancement

  Giving something prior to death and counts towards future inheritance

  1. Common law held that any lifetime gift was presumed to be an advancement (traditional view)
  2. Now UPC has rationale that it is a gift unless there is ev. of advancement
• Slayer Rule

  One who has killed the decedent may not inherit

  1.      Need a conviction and killer is seen as predeceasing the victim
• Negative Will

  A provision in a will that an heir is to receive no property under intestacy
• Adopted children are considered descendants but they will lose their inheritance rights to birth parents
• Person inheriting from decedent needs to survive 5 days
• Involuntary Bars to Inherit

  1. Decedent presumed intent in heirs behavior (ex. killing, abandonment)
  2. Societal disapproval of an action
  3. Deterrent for behavior that society considers problematic
• Voluntary Bars to Inherit

  1. Private agreements
  2. Disclaimer (prevents title from coming to them)
  3. If you disclaim you do not get to chose where it goes
• Disclaimer Requirements

  1. Must be in writing AND
  2. Within a certain time of death (normally prior to 9 months)
• When You Have Intestate Succession

  1. Revocation
  2. Left over probate property that was not dealt with properly
  3. Not admitted to probate
  4. The bennys did not outlive the decedent
• Caveator

  Person who is contesting

  1. Need to prove that the will is not valid
• Proponent

  Person who is the personal representative

  1. Burden to prove the will is valid
• Holographic Will

  Will in your own writing, signed and dated by testator
• Substantial Compliance Doctrine

  Allows a non-conforming will to be admitted to probate, notwithstanding certain defects in execution if there is clear and convincing evidence that the will formalities have been satisfied
• Harmless Error

  Allows a non-conforming doc to be admitted to probate if there is clear and convincing evidence that the decedent intended the doc to be their will
• Capacity Threshold

  All you need is a lucid moment
• Interested witnesses are not allowed to sign/testify
• OK has self proving affidavit

  If this is done right, the witnesses will not need to come testify during probate
• Testator Needs To Know

  1. Nature and extent of property
  2. Natural objects of bounty (general heirs)
  3. Disposition that they are making of the property AND
  4. Capable of understanding how these elements relate
• Why Formalities

  Protective, evidentiary, cautionary functions
• Will Requirements

  i. In writing

  ii. Signed by testator

  iii. Attested by two or more disinterested witnesses
• UPC Will Requirements

  1. In writing
  2. Signed by testator OR testator’s name by some other individual in testator’s conscious presence
  3. Two individuals sign or with notary public
• Caveat

  Objection to a will submitted to a probate court
• Forfeiture Clause

  Disinherits anyone who tries to challenge the will
• Ante-mortem Probate

  Court can declare will valid while they are alive
• Elements of Undue Influence

  1. The testator must be a person susceptible to the influence
  2. The alleged influencer must have had an opportunity to exert undue influence upon the testator
  3. The alleged influencer must have a disposition to exert undue influence
  4. There must be a testamentary plan or bequest resulting from the influence