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Wills and Trusts

Fall 2011

Prima geniture feudal times employed this technique that gave property to oldest male
testacy dying with a will
intestacy dying without a will
problem of the dead hand when decedent conditions a gift to a beneficiary upon them getting it in a certain way. property owners usually have broad discretion to dispose of property however they want.
probate property property that passes under the decedent's will or by intestacy
nonprobate property property passing under an instrument other than a will
Examples of nonprobate property joint tenancy w/ rights of survivorship; beneficiary designations: life insurance, contracts with POD provisions, interests in trust; legal life estates and remainders; inter vivos trust
Are tenants in common probate? Yes
Probate functions (3) 1. provides evidence of transfer of title to new owners by a probated will or decree of intestate succession 2. it protects creditors by requiring payments of debts 3. it distributes the decedent's property to those intended after the creditors are paid
Duties of Personal Representative 1. inventory and collect the assets of the decedent 2. manage the assets during admin 3. receive & pay claims of creditors and tax collectors 4. clear titles to cars, real estate, or other assets 5. distribute the remaining assets to those entitled
Informal Probate Process 1. file application 2. admit will to probate 3. appoint PR 4. application for formal/informal probate 5. court issues order admitting to probate and appointing PR 6. file inventory
Formal Probate Process 1. hearing in front of judge 2. file petition for formal probate, get court date, provide notice to interested parties (must wait at least 5 days after death to file application.)
Acceptable actions of Personal Representative 1. retain assets 2. receive assets 3. perform contracts 4. execute/deliver deed 5. divest assets, if needed 6. acquire or dispose asset 7. make ordinary repairs 8. divide land 9. enter lease (basically anything you can do with your own property)
Notice of Disallowance informs creditor that claim will not be paid w/o litigation
Order for payment of claims a. insufficient assets to pay all 1. costs and expenses of admin 2. reasonable funeral 3. debts and taxes w/ fed preference 4. med & hospital expenses 5. debts and taxes w/ state 6. all other claims
Negative Wills exclude or limit the right of an individual to succeed to property. UPC generally allows
Intestacy Share of Spouse NE 30-2302 and 30-2303 1. O issue, 0 parents -> spouse gets 100% 2. 0 issue, at least 1 parent -> spouse gets $50k probate and half of the rest. 3. At least 1 issue, of which are mutual with spouse -> gets $50k + half rest 4. 1 child not mutual: gets
Divorce, annulment, separation
English per stripes
Modern per stripes
Per capita at each generation
collateral kindred
first line collaterals
second line collaterals
parentelic scheme
degree of relationship scheme
adopted children
nonmarital children (common law)
nonmarital children (modern law)
Guardian of minor child
Custodian of Property
Bars to Succession (2) 1. Homicide 2. Disclaimer
NE effect of Homicide
Requirements of Disclaimer
Effect of Disclaimer on Gov't tax liens & Medicaid
Mental Capacity Requirements for Will
Insane Delusion
Undue Influence
Contestant of Will for Undue Influence, Duress, Fraud
Bequests to Attorney
No Contest Clause
Disinheritance Clauses
Fraud in the inducement
Fraud in the execution
Constructive trust
Tortious Interference
Requirements to prove tortious interference
parties to a trust
inter vivos trust
declaration of trust
deed of trust
testamentary trust
duty of loyalty
duty of prudence
subsidiary rules
trustee functions (3)
creation of trust (4)
NE 30-3828 Creation of Trust
Constructive delivery
symbolic delivery
resulting trust
taxation of grantor trust
spousal attribution rule
necessity of trust beneficiary
power of appointment test of validity
general power of appointment
limited power of appointment
Honorary trust
mandatory trust
discretionary trust
spray trust
support trust
discretionary support trust
duty to inquire
simple discretion
exculpatory clause
simple trust
complex trust
total return trust
unitrust total return
mandatory arbitration clause
rights of beneficiaries creditor's
exception to creditors rights
spendthrift trust
self-settled asset protection trust
creditors claims against settlor
modification of irrevocable trust
virtual representation
termination of trust
Whether default trust is revocable or irrevocable?
removal of trustee
gifts to classes
per stripes
modern per stripes
per capita at each generation
Class-closing rule
exceptions to Class-closing rule
post-poned gifts
gifts of specified sums
Created by: aajohn64