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Detailed Table of Contents (PDF Download) Contents Preface xxxvii Acknowledgments xxxix 1. INTRODUCTION TO ESTATE PLANNING AND THE LAWYER’S ROLES 1 A. General Introduction 1 B. The Legal System Governing Trusts and Estates 4 Questions 5 1. Wills 5 Karen J. Sneddon, The Will as Personal Narrative 5 2. The Emergence of Will Substitutes 7 John Langbein, The Nonprobate Revolution and the Future of the Law of Succession 7 3. The Probate Process 9 Paula Monopoli, American Probate: Protecting the Public, Improving the Process 9 C. Testamentary Freedom and Limitations on “Control from the Grave” 12 Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession 12 Feinberg v. Feinberg 13 Notes and Questions 17 Problem 18 Problem 18 D. The Professional Standards Associated with Estate Planning 19 1. Introduction 19 2. The Model Rules of Professional Conduct and ACTEC Commentaries 20 a. Counseling 21 b. Confidentiality 23 c. Conflict of Interest 26 xi xii Contents 3. Common Situations Raising Ethical Issues for Estate Planners 28 a. Joint Representation 28 Drafting Exercise 29 Problem 29 b. Third-Party Payment 29 c. Counseling 30 4. Malpractice 30 a. Avoiding Malpractice? 31 Stephanie B. Casteel, Letittia A. McDonald, Jennifer D. Odom & Nicole J. Wade, The Modern Estate Planning Lawyer: Avoiding the Maelstrom of Malpractice Claims 31 b. Privity 32 Hall v. Kalfayan 32 Notes and Questions 36 Problem 37 Appendix A UPC Section 1-201. General Definitions 38 Appendix B Glossary — American Probate Glossary 42 Appendix C Last Will and Testament of Michael Joseph Jackson 44 2. INHERITANCE AND RELATIONSHIP 47 A. Introduction 47 B. Who Is a Child? 48 1. In General 48 Susan N. Gary, We Are Family: The Definition of Parent and Child for Succession Purposes 48 Notes and Questions 51 2. Intestacy — Interpreting Statutes 52 a. Establishing Maternity 53 b. Establishing Paternity 53 i. Marital Children and the Marital Presumption 53 Notes and Questions 55 ii. Nonmarital Children 56 Paula A. Monopoli, Nonmarital Children and Post-Death Parentage: A Different Path for Inheritance Law? 56 Notes and Questions 60 Problems 61 c. Adopted Children 61 Problems 63 Contents xiii i. Children Adopted by a Stepparent 63 Problems 65 ii. Adult Adoption 66 Notes 66 iii. Equitable Adoption 67 Notes and Questions 68 Problems 69 d. Assisted Reproductive Technology (ART) Children 69 i. In General 69 Notes and Questions 71 Problems 71 ii. Surrogacy 71 Problems 72 iii. Posthumous Conception and Frozen Embryos 72 Kristine S. Knaplund, Children of Assisted Reproduction 73 Astrue v. Capato 75 Notes and Questions 79 Problems 80 Exercise 80 e. Foster and Stepchildren 80 3. Interpreting Class Gifts in Wills and Trusts 81 a. Class Gifts from Parents 81 b. Exception — Class Gifts from Nonparents 82 Note and Questions 84 C. Who Is a Parent? 85 1. In General 85 2. Inheritance by a Parent From or Through a Child Barred in Certain Circumstances 86 Notes and Questions 87 Exercise 87 D. Who Is a Spouse? 87 1. Legally Married Spouses 88 Notes 88 2. Common Law Spouses 89 Note 89 3. Putative Spouses 89 Question 90 4. Civil Unions and Domestic Partnerships 90 5. Cohabitants 91 Problems 91 Exercise 92 xiv Contents 3. INTESTACY — WHAT HAPPENS TO A DECEDENT’S PROPERTY IF THERE IS NO WILL? 93 A. Introduction 93 1. The History and Development of the Intestacy Regime 95 2. The Limitations of Intestate Succession — Not All Things to All People 96 Problems 97 3. The Intestate Estate 97 Note 98 4. Requirement of Survival 99 B. Share for Surviving Spouse 99 1. Introduction and Share in Non-UPC States 99 Note and Questions 100 Letter Writing Exercise 101 2. The UPC Share for Surviving Spouses 101 Problems 105 C. Share to Lineal Descendants 107 1. In General 107 Exercise 108 D. Share to Ancestors and Collateral Heirs and Escheat to the State 108 Note and Question 109 E. The Representation Models 110 1. Strict Per Stirpes 112 a. Procedure for Determining the Per Stirpes Share 113 2. Modified Per Stirpes (“Per Capita with Representation”) and the 1969 UPC System of Per Stirpes 115 a. Procedure for Determining the Shares Employing the Per Capita with Representation (Modified Per Stirpes) and the 1969 UPC Per Stirpes System 116 In re Estate of Evans 118 3. The Current UPC Method — “Per Capita at Each Generation” 120 a. Procedure 121 Problems 124 Question 128 F. Reducing the Intestate Share for Advancements 128 1. Is an Inter Vivos Transfer a Gift, an Advancement, or a Loan? 128 Note and Question 130 Letter Writing Exercise 130 2. How Do These Transfers Affect the Shares to the Heirs? 130 Contents xv 3. Advancements and the “Hotchpot” Calculation 131 Problems 131 Appendix A Table of Consanguinity 133 4. NONPROBATE TRANSFERS — PASSING PROPERTY BY WILL SUBSTITUTES AND GIFTS 135 A. Introduction 135 Problems 136 B. The Different Laws of Wills and Will Substitutes 136 Grayson M.P. McCouch, Probate Law Reform and Nonprobate Transfers 138 C. Why Use Will Substitutes? 139 1. The Utility of Will Substitutes 139 2. Probate Avoidance 140 a. Benefits of Avoiding Probate 140 b. Myths About the Utility of Will Substitutes 141 c. There Are Advantages to Going Through Probate 142 d. Other Matters to Consider 143 D. Determining Which Property Is Probated and Which Is Not 143 David Horton, Indescendibility 144 Question 145 1. Trusts 146 Group Letter Writing Exercise 147 2. Joint Tenancies with Rights of Survivorship and Tenancies by the Entirety 148 3. Life Insurance 149 4. Annuities and Retirement Accounts 150 5. Contracts of Deposit with Financial Institutions 151 a. Single-Party Accounts 151 b. Multiple-Party Accounts — Joint Tenancy with Right of Survivorship 151 c. Payable-on-Death (POD) Beneficiary Designation 152 d. Convenience Accounts 153 Estate of Helen Butta 154 Notes and Questions 157 6. Security Accounts 157 7. Transfer-on-Death Deeds for Real Estate 158 Exercise 158 E. Gifting — Not Exactly a Will Substitute 159 1. What Distinguishes a Gift from Other Property Transfers? 160 2. Methods of Gifting 160 xvi Contents 3. Was the Gift Successfully Made? 161 Problems 161 F. Developing a Comprehensive Estate Plan Incorporating Will Substitutes 163 1. Selecting the Beneficiary 164 Thomas E. Lund, Coordinating Beneficiary Designations with the Estate Plan 164 2. What If the Beneficiary Predeceases the Decedent? 165 Role-Play Exercise 166 G. Which Controls? The Will or the Will Substitute? 167 Lincoln Life and Annuity Co. of NY v. Caswell 168 Notes and Questions 171 H. Does Divorce Revoke a Beneficiary Designation to Spouse? 172 In re Estate of Johnson 172 Notes and Questions 175 Appendix A Chart for Exercise on Page 158 177 5. WILL VALIDITY 179 A. Introduction 179 David Horton, Wills Law on the Ground 180 B. Legal Requirements for the Testator 180 C. Formalities Required in the Will 181 1. The Writing Requirement 183 Notes and Questions 186 2. The Signature Requirement 187 a. Where to Sign? 187 b. How to Sign? 188 c. Who Can Sign? 188 Notes and Questions 189 3. Publication 189 4. The Witness Requirement 190 a. Who May Be a Witness 191 b. Where Must the Testator and Witnesses Be? 191 i. Must the Testator Sign or Acknowledge in the Witnesses’ Presence? 191 Kirkeby v. Covenant House 191 Question 195 ii. Must the Witnesses Sign in the Testator’s Presence? 195 iii. When Must the Witnesses Sign? 196 In re Estate of Peters 196 Notes and Questions 198 iv. Interested Witnesses 199 Contents xvii Questions 199 Problems 200 c. The Self-Proved Will 200 Problem 202 d. The Notarized Will 203 e. Putting the Formalities into Practice 203 David K. Johns, Will Execution Ceremonies: Securing a Client’s Last Wishes 203 Questions 205 D. Holographic Wills 206 In re Estate of Edward Frank Muder 206 Note and Question 211 In re Estate of Charles Kuralt 212 Notes and Questions 215 Problems 215 E. Dispensing with Formalities 217 1. Substantial Compliance 217 John H. Langbein, Substantial Compliance with the Wills Act 218 In re Snide 219 Notes and Questions 222 2. Excusing Harmless Error 223 In re Estate of Wiltfong 225 Notes and Question 229 F. Choice of Law 230 G. Ethical Issues in Will Drafting 231 1. Conflicts of Interest 231 a. Drafting Attorneys as Fiduciaries 231 Questions 233 b. Exculpatory Clauses 233 c. Drafting Attorney as Beneficiary 234 2. Duty to Produce and Keep the Will 235 Questions 237 3. Drafting Software, Mistakes, and the Unauthorized Practice of Law 238 Exercises 239 6. INTERPRETING THE WILL 243 A. Introduction 243 Mary Louise Fellows, In Search of Donative Intent 244 Notes and Questions 245 xviii Contents B. What Constitutes the Will? 246 1. Integration 247 2. Incorporation by Reference 248 Notes and Questions 249 Problem 249 3. Republication by Codicil 250 4. Events of Independent Significance 250 Problem 252 5. Memorandum at Death 252 Problems 253 6. Pour-Over Wills 254 Exercise 254 C. Interpreting the Meaning of a Will Using Extrinsic Evidence 255 1. The Plain Meaning Rule 255 2. Modern Approaches 255 3. Resolving Ambiguities 257 Estate of Hinz 258 Notes and Questions 261 Problem 261 Exercise 261 4. Mistake — Reformation of Wills 262 John Langbein and Lawrence Waggoner, Reformation of Wills on the Ground of Mistake: 262 Question 264 Problems 264 D. Interpreting the Meaning of a Will Using the Rules of Construction 265 Adam J. Hirsch, Text and Time: A Theory of Testamentary Obsolescence 266 1. Classification of Devises 267 2. Rules of Construction Applicable Only to Wills 268 a. What Happens When a Devise Fails? 268 b. Lapse and Antilapse — What Happens to a Bequest When the Beneficiary Predeceases the Testator? 269 i.
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