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Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Uniform Probate Code Article Ii Intestacy, Wills, and Donative Transfers
UNIFORM PROBATE CODE ARTICLE II INTESTACY, WILLS, AND DONATIVE TRANSFERS [Sections to be Revised in Bold] Table of Sections PART 1 INTESTATE SUCCESSION § 2-101. Intestate Estate. § 2-102. Share of Spouse. § 2-102A. Share of Spouse. § 2-103. Share of Heirs Other Than Surviving Spouse. § 2-104. Requirement That Heir Survive Decedent for 120 Hours. § 2-105. No Taker. § 2-106. Representation. § 2-107. Kindred of Half Blood. § 2-108. Afterborn Heirs. § 2-109. Advancements. § 2-110. Debts to Decedent. § 2-111. Alienage. § 2-112. Dower and Curtesy Abolished. § 2-113. Individuals Related to Decedent Through Two Lines. § 2-114. Parent and Child Relationship. § 2-101. Intestate Estate. (a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by the decedent’s will. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his [or her] intestate share. § 2-102. Share of Spouse. The intestate share of a decedent’s surviving spouse is: (1) the entire intestate estate if: (i) no descendant or parent of the decedent survives the decedent; or (ii) all of the decedent’s surviving descendants are also -
Community Property V. the Elective Share, 72 La
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana Law Review Volume 72 | Number 1 The Future of Community Property: Is the Regime Still Viable in the 21st Century? A Symposium Fall 2011 Community Property v. The lecE tive Share Terry L. Turnipseed Repository Citation Terry L. Turnipseed, Community Property v. The Elective Share, 72 La. L. Rev. (2011) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol72/iss1/8 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. Community Property v. The Elective Share Terry L. Turnipseed I. INTRODUCTION There is certainly no doubt that community property has its faults. But, as with any flawed thing, one must look at it in comparison with the alternatives: separate property and its companion, the elective share. This Article argues that the elective share is so flawed that it should be jettisoned in favor of community property.' The elective share can trace its ancestry to dower and curtesy, with the concept of dower dating to ancient times.2 In old England, a widowed woman was given a life estate in one-third of certain of her husband's real property-property in which the husband held an inheritable or devisable interest during the marriage.3 Once dower attached to a parcel of land at the inception of the marriage, the husband could not unilaterally terminate it by transferring the land.4 The right would spring to life upon the husband's death unless the wife had also consented to the transfer by signing the deed, even if title were held in only the husband's name.5 Copyright 2011, by TERRY L. -
What's Wrong About the Elective Share
GW Law Faculty Publications & Other Works Faculty Scholarship 2020 What’s Wrong About the Elective Share “Right”? Naomi R. Cahn George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation 53 U.C. Davis L. Rev. (forthcoming 2020); GWU Law School Public Law Research Paper No. 2020-44; GWU Legal Studies Research Paper No. 2020-44 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. CAHN MACRO V3.DOCX (DRAFT) (DO NOT DELETE) 6/2/2020 4:37 PM What’s Wrong About the Elective Share “Right”? Naomi Cahn* This Article examines one form of property rights available to a surviving spouse, the elective share. The elective share serves as an override to a testator’s stated intent by allowing the surviving spouse to choose to take a portion of the decedent’s estate — even if the will explicitly disinherits the surviving spouse. The Article analyzes a recent five-year period of state cases raising elective share issues with the goal of determining the circumstances under which an elective share is most likely to be contested. The reported elective share disputes typically involve a subsequent spouse challenging a will that leaves property to an earlier family. The petitioners are almost invariably women. The length of the marriage ranges from a few months to decades, and some of the cases involve waiver of the share, some involve estranged spouses, and a few involve marriage fraud. -
Report of the Elective Share Work Group HB 3077
Elective Share Work Group ELECTIVE SHARE HB 3077 Prepared by Samuel E. Sears Staff Attorney and Ben Stewart Law Clerk Updated by Susan N. Gary Work Group Member From the Offices of the Executive Director Jeffrey C. Dobbins and Deputy Director and General Counsel Wendy J. Johnson Approved by the Oregon Law Commission at its Meeting on February 11, 2009* * Amended to reflect amendments made to the bill after further discussions with the Estate Planning Section of the Oregon State Bar. I. Introductory Summary Oregon’s elective share statute provides that a surviving spouse is entitled to 25% of the net probate estate of a deceased spouse regardless of the provisions of the deceased spouse’s will. The purpose of elective share statutes is to protect a surviving spouse from disinheritance by his or her decedent spouse. There are two primary justifications for this rule: 1) both spouses contribute to the acquisition of wealth during marriage and both should receive an equal portion of the couple’s marital assets (partnership theory); and 2) the surviving spouse should be provided some measure of support (support theory). In contrast with the elective share, a spouse who seeks a divorce in Oregon is entitled to an equitable distribution of the couple’s assets, usually roughly 50% of those assets. Thus, a spouse who files for divorce typically receives substantially more than a spouse who opts to take the elective share. Not only is the percentage higher, but in addition, the elective share statute applies only to the probate estate,1 so it can easily be avoided through nonprobate transfers, such as revocable trusts. -
Wills--Deceased Residuary Legatee's Share Held Not to Pass by Way Of
St. John's Law Review Volume 38 Number 1 Volume 38, December 1963, Number Article 11 1 Wills--Deceased Residuary Legatee's Share Held Not to Pass by Way of Intestacy Where It Is Clearly Manifested That Surviving Residuary Legatees Should Share in the Residuum (In re Dammann's Estate, 12 N.Y.2d 500 (1963)) St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ST. JOHN'S LAW REVIEW [ VOL. 38 argument against such an extension was rejected. 52 Likewise, the presence of a compensation fund for prisoners was held not necessarily to preclude prisoner suits under the FTCA.53 The Court found the compensation scheme to be non-comprehensive.5 4 The government's contention that variations in state laws might hamper uniform administration of federal prisons, as it was feared they would with the military, was rejected. Admitting that prisoner recoveries might be prejudiced to some extent by variations in state law, the Court regarded no recovery at all as a more serious prejudice to the prisoner's rights.55 In this connection, it is interesting to consider the desirability of spreading tort liability in the governmental area.5" The impact of the principal case is, in some respects, clear. -
The Law of Property
THE LAW OF PROPERTY SUPPLEMENTAL READINGS Class 14 Professor Robert T. Farley, JD/LLM PROPERTY KEYED TO DUKEMINIER/KRIER/ALEXANDER/SCHILL SIXTH EDITION Calvin Massey Professor of Law, University of California, Hastings College of the Law The Emanuel Lo,w Outlines Series /\SPEN PUBLISHERS 76 Ninth Avenue, New York, NY 10011 http://lawschool.aspenpublishers.com 29 CHAPTER 2 FREEHOLD ESTATES ChapterScope ------------------- This chapter examines the freehold estates - the various ways in which people can own land. Here are the most important points in this chapter. ■ The various freehold estates are contemporary adaptations of medieval ideas about land owner ship. Past notions, even when no longer relevant, persist but ought not do so. ■ Estates are rights to present possession of land. An estate in land is a legal construct, something apart fromthe land itself. Estates are abstract, figments of our legal imagination; land is real and tangible. An estate can, and does, travel from person to person, or change its nature or duration, while the landjust sits there, spinning calmly through space. ■ The fee simple absolute is the most important estate. The feesimple absolute is what we normally think of when we think of ownership. A fee simple absolute is capable of enduringforever though, obviously, no single owner of it will last so long. ■ Other estates endure for a lesser time than forever; they are either capable of expiring sooner or will definitely do so. ■ The life estate is a right to possession forthe life of some living person, usually (but not always) the owner of the life estate. It is sure to expire because none of us lives forever. -
Anatomy of a Will
PRESENTED AT 18th Annual Estate Planning, Guardianship and Elder Law Conference August 11‐12, 2016 Galveston, Texas ANATOMY OF A WILL Bernard E. ("Barney") Jones Author Contact Information: Bernard E. ("Barney") Jones Attorney at Law 3555 Timmons Lane, Suite 1020 Houston, Texas 77027 713‐621‐3330 Fax 713‐621‐6009 [email protected] The University of Texas School of Law Continuing Legal Education ▪ 512.475.6700 ▪ utcle.org Bernard E. (“Barney”) Jones Attorney at Law 3555 Timmons Lane, Suite 1020 • Houston, Texas 77027 • 713.621.3330 • fax 832.201.9219 • [email protected] Professional ! Board Certified, Estate Planning and Probate Law, Texas Board of Legal Specialization (since 1991) ! Fellow, American College of Trust and Estate Council (elected 1995) ! Adjunct Professor of Law (former), University of Houston Law Center, Houston, Texas, 1995 - 2001 (course: Estate Planning) ! Texas Bar Section on Real Estate, Probate and Trust Law " Council Member, 1998 - 2002; Grantor Trust Committee Chair, 1999 - 2002; Community Property Committee Chair, 1999 - 2002; Subcommittee on Revocable Trusts chair, 1993 - 94 " Subcommittee on Transmutation, member, 1995 - 99, and principal author of statute and constitutional amendment enabling "conversions to community" Education University of Texas, Austin, Texas; J.D., with honors, May 1983; B.A., with honors, May 1980 Selected Speeches, Publications, etc. ! Drafting Down (KISS Revisited) - The Utility and Fallacy of Simplified Estate Planning, 20th Annual State Bar of Texas Advanced Drafting: Estate Planning -
Estate Planning for Second Marriages and Blended Families
Presenting a live 90-minute webinar with interactive Q&A Estate Planning for Second Marriages and Blended Families Maximizing Tax Benefits, Incorporating Pre- and Postnuptial Agreements, and Meeting Obligations to Children and Spouses TUESDAY, MAY 19, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Kristin A. Pace, Partner, Donahue Fitzgerald, Oakland, Calif. Todd J. Preti, Principal, Midgett Preti Alperin, Virginia Beach, Va. Bridget K. Sullivan, Member, Sherman & Howard, Denver The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-961-9091 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again. Continuing Education Credits FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: • In the chat box, type (1) your company name and (2) the number of attendees at your location • Click the SEND button beside the box In order for us to process your CLE, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form) to Strafford within 10 days following the program. -
633.238 Elective Share of Surviving Spouse. 1. the Elective Share of the Surviving Spouse Shall Be Limited to All of the Following: A
1 PROBATE CODE, §633.238 633.238 Elective share of surviving spouse. 1. The elective share of the surviving spouse shall be limited to all of the following: a. One-third in value of all the legal or equitable estates in real property possessed by the decedent at any time during the marriage which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no express written relinquishment of right, including but not limited to any relinquishments of rights described in paragraph “d”. b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution. c. One-third of all personal property of the decedent that is not necessary for the payment of debts and charges. d. (1) One-third in value of the property held in trust not necessary for the payment of debts and charges over which the decedent was a settlor and retained at the time of death the power to alter, amend, or revoke the trust, or over which the decedent waived or rescinded any such power within one year of the date of death, and to which the surviving spouse has not made any express written relinquishment in compliance with subparagraph (2). (2) The elective share of the surviving spouse shall not include the value of the property held in a trust described in subparagraph (1), if both of the following are true: (a) The decedent created the trust after the date of decedent’s marriage to the surviving spouse. -
The Intestate Claims of Heirs Excluded by Will: Should "Negative Wills" Be Enforced?
The Intestate Claims of Heirs Excluded by Will: Should "Negative Wills" Be Enforced? When a testator's will fails to provide for the disposition of his entire estate, the portion of the estate that is not disposed of usu- ally passes to the testator's heirs under the intestacy laws.' These laws reflect a presumption about what the testator would have wanted had he considered the matter.2 In some cases, however, the testator may have expressed a contrary intent. For example, a will may expressly disinherit an heir and leave the estate to someone else; or it may leave a small sum "and no more" to an heir, while giving the bulk of the estate to someone else; or a "will" may con- tain no devise at all, but express a desire that an heir receive no part of the estate.3 If the will does not fully dispose of the testa- tor's property and some or all of his estate must pass by intestacy, an issue arises as to whether the intestacy statute requires the ex- cluded heir to receive an intestate share, contrary to the testator's intent. This comment discusses the circumstances in which a will that expressly disinherits an heir or limits the heir's gift to the devise in the will (a "negative will") may foreclose the award of an intestate share to that heir where some or all of the testator's estate passes by intestacy. Since the mid-nineteenth century, English courts have enforced negative wills where (1) the testator clearly intended to exclude an heir or to limit an heir's share in the estate to the devise in the will, and (2) at least one other heir remains eligible to take the property that passes by intestacy.4 Under this approach, the exclusion of the heir (or limitation of the heir's gift) in the will See, e.g., UNIF. -
Conflicts of International Inheritance Laws in the Age of Multinational Lives Adam F
\\jciprod01\productn\C\CIN\52-4\CIN403.txt unknown Seq: 1 17-JUL-20 14:56 Conflicts of International Inheritance Laws in the Age of Multinational Lives Adam F. Streisand† & Lena G. Streisand‡ Introduction ..................................................... 675 R I. Ancient Rome ............................................ 678 R II. Historical Development of the Civil Law Tradition ........ 683 R III. Historical Development in the Common Law Nations ..... 687 R IV. The Islamic Model ....................................... 695 R V. Inheritance Laws in Russia ............................... 698 R VI. Modern Rules of Forced Heirship in Civil Law ............ 701 R VII. Common Law Freedoms of Testation ..................... 706 R VIII. Who Claims This Decedent? .............................. 709 R Conclusion ...................................................... 715 R Introduction Today, more than ever, we have multinational lives. That is to say, we may have more than one home or spend significant amounts of time in more than one country. There can be nothing more sublime than to immerse oneself in a foreign culture, converse in a different language than one’s own native tongue, and open the mind to ways of thinking that may even be anathema to the values instilled in us from our very first years. One can only benefit. But what if you were someone like Douglas Raines Tompkins, founder of The North Face and Esprit apparel companies, and adventurist-turned- philanthropist? When Tompkins sold his companies, which he founded in San Francisco, California, where he lived most of his life, he committed to donating his entire wealth to land conservation and wildlife preservation.1 Tompkins acquired millions of acres of land in Chile and Argentina and made grand bargains with the governments of those nations: he offered to donate his land to the governments as long as they too contributed land, and agreed to dedicate the entirety of those lands for national parks and wildlife preserves.