Wills, Trusts, and Estates

outline


Class Info

Law School: Liberty University School of Law

Course ID: LAW 575

Term: Fall 2019

Instructor: Dean Todd

Books Used

Intestacy

To die intestate means to die without a will. This is the opposite of testacy.

Partial Intestacy

Partial intestacy is when one dies with a will only disposing of part of his property.

Generally, the law of the state where a decedent was domiciled at death governs.

Heir

An heir is one "who is entitled under the statutes of intestate succession to the property of a decedent." UPC § 1-201(20).

No living person has heirs, only heirs apparent. Heirs apparent have a mere expectancy that is both contingent on their surviving longer and on the property not being otherwise disposed of.

  • When named in a will, heirs apparent are called devisees, legatees, or beneficiaries. This is still contingent upon the same conditions however and does not guarantee that they will inherit anything though until the testator actually dies.

Expectancies are not legal interests and cannot be legally transferred, however purported transfers may be enforced for equity's sake.

Rules for Heirs

In every state, the spouse is first, then descendants take to the exclusion of ancestors and collateral kindred. (Dead childrens' wills do not apply. In-laws get nothing.)

  • Surviving Spouse
    • No Descendants or Parents
      • In the UPC, the spouse gets everything. UPC § 2-102(1)(A).
      • In Virginia, the spouse gets everything. VA Code § 64.2-200(A)(1).
    • And Descendants
      • Both Are Parents
        • In the UPC, the spouse gets everything. UPC § 2-102(1)(B).
        • In Virginia, the spouse gets everything. VA Code § 64.2-200(A)(1).
      • All Descendants Are with Spouse, Who Has Other Kids (Cinderella problem)
        • In the UPC, the spouse gets $225,000 first, then the rest is split 50/50 between the spouse and the descendants. UPC § 2-102(3).
        • In Virginia, two-thirds goes to the children and one-third to the spouse. VA Code § 64.2-200(A)(1).
      • Decedent Has Other Kids
        • In the UPC, the spouse gets $150,000 first, then the rest is split 50/50 between the spouse and the descendants. UPC § 2-102(4).
        • In Virginia, two-thirds goes to the children and one-third to the spouse. VA Code § 64.2-200(A)(1).
    • No Descendants But Parents
      • In the UPC, the spouse gets $300,000 first, then the spouse gets three-fourths and the parent gets one-fourth. UPC § 2-102(2).
      • In Virginia, the spouse gets everything. VA Code § 64.2-200(A)(1).
  • Then to children
  • Then to parents
  • Then to first-line collaterals (siblings/nephews/nieces)
  • Then to grandparents/uncles/aunts/cousins
    • Parentelic System

      To distribute property when there are no first-line collaterals, most states use a parentelic system. This includes Virginia. VA Code § 64.2-200(A)(5)(e).

      A parentelic system looks up generations of ancestors until there is a living descendant in that parentela, or line. (i.e., look at the grandparents, then the great-grandparents, etc. until you find someone with a living descendant, then split all the amount among his descendants only.)

      E.g, a first cousin would be chosen over a great-grandparent because a first cousin is a descendant of a grandparent, which is a closer parentela.

    • Degree-of-Relationship System

      To distribute property when there are no first-line collaterals, a minority of states use a degree-of-relationship system.

      Under a degree-of-relationship system, the estate goes to the relative with the fewest degrees of relationship.

      E.g, a great-grandparent would be chosen over a first cousin because a great-grandparent only requires 3 degrees of relationship (all up), while a first cousin requires 4 (2 up and 2 down).

      Degree of Relationship

      Degree of relationship is a method of measuring how related people are by counting the number of parental links that must be traversed, up or down, to reach someone.

      Examples
      • Parents – 1
      • Siblings – 2 (up to parent, then down to sibling)
      • Grandparents – 2 (up to parent, then up to grandparent)
      • Uncles/Aunts – 3 (up to parent, then up to grandparent, then down to uncle/aunt)
      • First Cousins – 4 (up to parent, then up to grandparent, then down to uncle/aunt, then down to cousin)
      • Great-grandparents – 3 (up to parent, then up to grandparent, then up to great-grandparent)
      • First Cousins Once Removed (either direction) – 5
      • Second Cousins – 6
      • Fifth Cousins Twice Removed (either direction) – 12

      There are variations on this, such as using degree of relationship but breaking ties with a parentelic system.

  • Then to stepchildren (in the UPC – UPC § 2-103(b)(1) (and mayyybe Virginia?))
  • Then to the state

Intestacy favors only spouses and blood relatives.

Simultaneous Death

Because of the Uniform Simultaneous Death Act, if two people die simultaneously, neither inherits from the other.

  • One who fails to survive by 5 days is deemed to have predeceased the decedent.

Dead Children

Representation
English Per Stirpes

Under the English Per Stirpes system, shares are divided equally to children, then if dead, divided again to their children. Thus, grandchildren with fewer siblings get more money.

English Per Stirpes has vertical equality—bloodlines get equal amounts.

Modern Per Stirpes

Under the Modern Per Stirpes system, shares are divided equally to children, but if all children are dead, the property is divided among grandchildren. Thus, all grandchildren get the same amount if all the children are dead. If some children survive, it is the same as English Per Stirpes.

Modern Per Stirpes applies the same with grandchildren and great-grandchildren. The division does not occur until the first generation with a live taker.

Modern Per Stirpes has horizontal equality—children/grandchildren get equal amounts—whenever all children are dead.

Virginia uses Modern Per Stirpes. VA Code § 64.2-202.

Per Capita at Each Generation

Under the Per Capita at Each Generation system, shares are divided equally to children, then if one or more are dead, the reminder is divided again to the grandchildren. Thus, all grandchildren always get the same amount.

Per Capita at Each Generation has horizontal equality—children/grandchildren get equal amounts—always.

The UPC uses Per Capita at Each Generation. UPC § 2-103(a).

Descendants' surviving spouses (i.e., children-in-law) never get anything in most jurisdictions.

Half-Blood

Under UPC § 2-107, half-blood relatives are treated the exact same as whole-blood relatives.

In Virginia, half-blood relatives get half as much of a share as a whole-blood relative would. VA Code § 64.2-202.

Disinherit
Negative Will

A negative will is where one specifically says that someone does not get something. This enables easy disinheritance.

Historically, negative wills were not allowed. To disinherit someone, it was necessary to specifically give away all of your property to others. Anything not given away in a will was able to be contested by the attempted-disinheritee. Now however, both the UPC and Virginia allow negative wills.

Adoption

Adopted children are the children of the person/people who adopted them, not their biological parents. (Unless adopted by the spouse of a biological parent—that doesn't stop them from being children of their biological parents too.) UPC § 2-118, UPC § 2-119, VA Code § 64.2-102.

Typically no statutory distinction is made between child and adult adoptions, but wills commonly have language excluding adult adoptees.

  • Also, UPC § 3-705 excludes adult adoptees from someone other than the adoptive parent unless the adoptive parent actually "functioned as a parent of the adoptee" before he turned 18.
    • Or it used to exclude them entirely (from class gifts?) unless the adoptee lived with the adoptive parent as a minor?
Equitable Adoption

Most states recognize equitable adoption to imply an adoption when people raise a child as their own.

Posthumous Child

Children born after their fathers die are treated as being alive since conception. VA Code § 64.2-204, UPC § 2-106.

Nonmarital Child

Though historically a child born out of wedlock could not inherit from either parent, all states now allow nonmarital children to inherit from their mothers, and most from their fathers.

Under UPC § 2-705(e), a nonmarital child counts as child of his father if the father "functioned as a parent of the child before the child reached [18] years of age."

Under VA Code § 64.2-102, a nonmarital child counts as child of his father if [t]he biological parents participated in a marriage ceremony before or after the birth of the child or [p]aternity is established by clear and convincing evidence, including scientifically reliable genetic testing, as set forth in § 64.2-103. VA Code § 64.2-102(3).

  • However, this does not allow inheritance to pass back up from the child to the father and his family unless the father has openly treated the child as his and has not refused to support the child. VA Code § 64.2-102(3)(b).
Posthumously Conceived Child

A posthumously conceived child is one conceived through artificial insemination after his father's death by means of sperm he had frozen during his life.

Under UPC § 2-705, posthumously conceived children can inherit if the distribution date is the date of the parent's death, the child was conceived with 36 months or born with 45 months of the death, and the decedent consented to posthumous conception, proven by a signed writing or other clear and convincing evidence.

Under VA Code § 64.2-204, posthumously conceived children inherit as normal children.

Surrogate

A surrogate mother is one who agrees to carry and birth a baby for others. The baby may or may not be genetically related to the surrogate.

UPC § 2-121 provides that surrogates do not have a parent-child relationship with their child unless no one else does. The intended parents do if they functioned as parents within two years of the child's birth.

If there are no surviving relatives when one dies intestate, the property escheats.

Advancement

Advancements are lifetime gifts of any property to one's children that are advanced payments of their intestate shares. (i.e., paying your kids their share of the inheritance early.

At common law, all gifts were presumed to be advancements unless it was established that they were not intended to be counted against inheritance.

Hotchpot

Hotchpot is the theoretical estate that one would have if he had not given away advancements. (I.e., add the advancements into the estate.)

To calculate the distributions with hotchpot, just distribute the theoretical hotchpot and then subtract out the advancements already received from people's shares.

Many states no longer assume lifetime gifts are advancements. Some states and UPC § 2-109(a) even require an advancement to be made in writing and signed by the parent.

Guardian

A guardian is the person responsible for a minor's custody and care.

Wills uniquely allow people to designate guardians for their kids in the event they die.

You likely want to designate a couple and require that they both still be alive and married.

Guardianship comprises both guardianship of the person and guardianship of the estate.

Bar

Several things bar people from succession.

Slayer Rule

The slayer rule bars people from inheriting from people they killed.

UPC § 2-803 provides that slayers are treated as having disclaimed the property.

Disclaim

Anyone can disclaim his inheritance if he really wants to.

Under UPC § 2-1106, a disclaimant is treated as having "died immediately before" the victim.

Testacy

To die testate means to die with a will. This is the opposite of intestacy.

Will

A will is a document in which a decedent laid out how to distribute his property.

Authenticity
Formality

To ensure the authenticity of wills, every state requires certain formalities for making or revoking a will. These enable a easy clear-cut way for courts to determine the authenticity of a will.

Making a Will
Attested Will

Attested wills are wills authenticated by having witnesses sign it.

There are three core formalities for making an attested will:

  1. Writing
    • Nuncupative Will

      A nuncupative will is one given orally. They are generally not allowed, but some states allow them for people about to die from illness or for people in the military.

  2. Signature

    All states and UPC § 2-502(a) require the testator to sign the will for it to be valid.

    Like in contracts, a signature is any mark made with the intent to be a signature.

    It is often recommended to use a blue pen when signing, so you can easily tell the original from copies.

  3. Attestation

    Attestation is the formal observation of the testator's signing by witnesses.

    The UPC requires two witnesses to sign the will within a reasonable time after witnessing the signing or acknowledgment of the will.

    Many states require all witnesses to be present when the testator sign his will and when they each sign it.

    1. A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.
    2. A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.
    Presence

    States have different definitions of the "presence" required for attestation.

    Line of Sight

    In England and some states, the line of sight test is used for presence. It requires the testator to have been able to see the witnesses sign the will if he looked. You have to be in line of sight. You can't be in a nearby room or something.

    Conscious Presence

    Some states use conscious presence, which requires the testator to comprehend that the witness is in the act of signing, whether through sight, hearing, or general consciousness of events.

    Uniform Probate Code

    UPC § 2-502(a)(3) does not require that the witnesses sign in the testator's presence at all. It does require them to see the testator's signing or acknowledgment of the will. If the testator has another sign on his behalf, the UPC requires conscious presence.

    Attestation Clause

    Attestation clauses recite that the will was executed in accordance with the applicable Wills Act. No state normally requires an attestation clause, but they give a rebuttable presumption of due execution, so you should always have one.

    Purging Statute

    A slim majority of states have purging statutes, which purge benefits that witnesses to wills receive therefrom. Most of them only purge the benefits in excess of what the witness would have received in intestacy however.

    If there are sufficient witnesses to a will without the interested witness, then that witness was supernumerary and may take his full devise.

    Execution Ceremony

    See pages 159–160 of the book.

    1. Put the full "Page X of N" at the bottom of the pages.
    2. Make sure the testator understands the will and get that in writing with just him.
    3. Then bring in the witnesses and notary and don't let them leave until done.
    4. Ask the testator if it's his will which he understands and desires in the presence of the notary.
    5. Ask the testator to request the witnesses to sign after him.
    6. Have the testator sign with the witnesses standing around him.
    7. Have the witnesses read the attestation clause.
    8. Have the witness sign.
    9. Have the testator and witnesses sign a self-proving affidavit swearing that the will was duly executed, which the notary then signs.
    10. Review the documents to make sure signed right.
    11. Write a memo saying you followed these protocols.
    12. Give the testator the will.

Different states have different and additional requirements however.

Notarized Will

UPC § 2-502(a)(3) says that a will is valid if it is signed by two witness or if it is notarized. However, notarized wills have only actually been adopted in Colorado and North Dakota.

Holographic Will

A holographic will is a will handwritten and signed by the testator.

In a slight majority of states, holographic wills are permitted. (Mainly just not in the Midwest, plus some other areas you can see on the map (if it exists yet).)

Virginia was the first state in America to permit holographic wills and UPC § 2-502(b) allows them as well.

About one-third of states the states permitting holographic wills require that the whole will be handwritten, including Virginia. The remaining states only require that the "material provisions" be handwritten and therefor allow for, say, filling in a form will by hand. These states are split roughly 50/50 on whether to allow extrinsic evidence in the establishment of testamentary intent. UPC § 2-502(b) does allow extrinsic evidence.

Almost all states allow the testator to sign anywhere on the will.

Strict Compliance

Traditionally, wills must be executed in strict compliance with all the formal requirements of the applicable Wills Act. Even if the court believes the will to be legitimate and intended by the deceased, they will not admit the will. (E.g.: Stevens v. Casdorph)

Substantial Compliance

South Australia and some American jurisdictions follow a substantial compliance approach to will validation. This approach admits technically invalid wills as valid if the noncomplying will expresses the decedent's intent and sufficiently approximates the required formalities so as to serve the purposes thereof.

Harmless Error

UPC § 2–503 treats a document as if it had been executed in compliance with the formal requirements if the proponent of the document established by clear and convincing evidence that that decedent intended the document to constitute his will or a modification thereof.

Evidence of dispositive intent is different from evidence that a piece of paper was intended to serve as a will.

VA Code § 64.2-404 follows the harmless error rule, but does not allow it to patch a missing signature except in the case of two people mistakenly signing each other's will.

Revoking a Will

Wills are ambulatory, meaning that they can be amended or revoked at any time.

A will can either be revoked by a subsequent writing or by physically destroying the will. Wills cannot be revoked orally.

A will can either be revoked by a subsequent writing by express revocation or by implied revocation.

Express Revocation

An express revocation is a revocation by subsequent writing in which the testator specifically says they revoke the will.

Most well-draft wills will start with an express revocation:

I, Matthew Miner, a resident of Champaign, IL, make this my will and revoke all prior wills and codicils.

Implied Revocation

An implied revocation occurs when a subsequent will is executed which is inconsistent with a prior will.

UPC § 2-507 treats subsequent wills that make a complete disposition as presumptively revoking the prior will by inconsistency, but if only part of the estate is disposed of under the new will, then anything not included in it but that is in the prior will will be disposed of according to the old one.

Physical Act Revocation

A will can be revoked by physically destroying the will.

If a will cannot be found and it was last known to be in the defendant's possession, it is presumed to be destroyed.

A will can also be physically revoked by writing on the old will. E.g., crossing it out, writing "void" on it, etc.

In Virginia, the writing on the will must touch the writing in the will to be a valid revocation.

Under UPC § 2-507(a)(2), a writing anywhere on the document can revoke it.

Partial Revocation by Physical Act

In most states and under UPC § 2-507, part of a will can be revoked by, like, crossing out part of it. This can only be used to remove people though. One cannot increase the amounts given to specific people.

Dependent Relative Revocation

If a testator revokes his will based upon a faulty assumption, the revocation is presumed to be ineffective. R3P § 4.3.

E.g, if one revokes his old will and tries to make a new will because he believed something to have changed about the beneficiaries or if he believes the new will to be legally valid or if he believes the new will to distribute the property differently than it does, then the new will will not be followed and the old will will be.

This is to follow the testator's intent and to avoid intestacy.

The DRR presumption arises when there is a:

  1. Valid prior disposition,
  2. Purported revocation, and
  3. Either
    1. The revocation was accompanied by an alternate disposition stated in the revocation, which is invalid, or
    2. The revocation recites a mistake of fact (or law) (that we are assuming has a causal relationship to the revocation), and
  4. We believe that the testator would not desire the revocation if he knew that the alternative disposition fails or about the mistake of fact.
Reviving a Will
UPC § 2-509
UPC § 2-509
  1. If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
  2. If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
  3. If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
  1. A will wholly revoked by a new will which is then itself physically revoked is not revived. It remains revoked.
  2. A will partially revoked by a new will which is then itself physically revoked is revived.
  3. A will wholly or partially revoked by a new will which is then itself revoked by yet another will is not revived besides to the extent said by the third will.
Divorce

UPC § 2-804 and nearly all states provide a presumption that a divorce revokes any provisions in a will giving to the former spouse. This includes Virginia. VA Code § 64.2-412.

The UPC also revokes as to all of the former spouse's relatives. Virginia does not.

Marriage

Marriage used to revoke any previously-made wills, but most states today allow such wills to remain valid, although the pretermitted spouse may take an intestate share of the deceased's property under UPC § 2-301.

Integration

Under the doctrine of integration, all papers present at the time of execution and intended to part of the will are treated as part of the will.

There has to be sufficient evidence to show that the decedent intended the papers to be part of his will.

Republication by Codicil

Whenever a codicil is published, it is treated as if the will itself is republished. R3P § 3.4

Incorporation by Reference

An external writing may be incorporated as part of the will if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. UCC § 2-510.

  1. The external writing must be in existence at the time of the publication of the will.
  2. The will must manifest an intent to incorporate the writing.
  3. The will must describe the writing sufficiently to permit its identification.
Tangible Personal Property Memo

UPC § 2-513 now allows a testator to dispose of tangible personal property by a separate writing by a separate writing, even if prepared after the execution of the will.

Only tangible personal property not otherwise disposed of by the will can be disposed of by such a memo.

  • However, one can include a clause in the will saying the memo takes precedence, thereby making the will's disposition conditional upon the memo not disposing of it, and permitting the memo's disposition.
Acts of Independent Significance

If a will identifies beneficiaries or property by a reference to something that has significance outside the will, it may be thereby modified.

E.g., you may bequeath "my house" or "my car" to someone and it will continue to your new house or car because you did not get a new house or car just to change your will.

Contracts Relating to Wills
Voluntary

A will must be made voluntarily.

Capacity

[T]he testator . . . must be capable of knowing and understanding in a general way:

  1. the nature and extent of his or her property,
  2. the natural objects of his or her bounty, and
  3. the disposition that he or she is making of that property, and must also be capable of
  4. relating these elements to one another and forming an orderly desire regarding the disposition of the property.

He does not have to actually know these things, only be capable of knowing them.

Making a lifetime gift requires more capacity than making a will, and making a will requires more capacity than getting married.

Insane Delusion

An insane delusion is a false conception of reality.

A person who drafts his will based on an insane delusion may have sufficient capacity to understand how to dispose of his property but will still be barred from doing.

Meaning