The Uniform Probate Code Upends the Law of Remainders
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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 -
G L O S S a R Y
G L O S S A R Y A Administrator: A court appointed person or corporation in charge of managing the estate of a person who dies without leaving a will. Administrators have the same duties as Executors. In Minnesota, the administrator or executor is called the Personal Representative. Affiant: A person who makes an oath or affirmation and acknowledges the same in writing. In Minnesota this is usually done before a notary public. Affidavit: A voluntary written statement of facts confirmed by the oath or affirmation of the affiant. Affidavit of Collection of Personal Property: A sworn, notarized statement, used to collect assets of a small estate without going through the probate process. (aka Affidavit of a Small Estate). Agent: A person authorized by another to act for him. AKA: Also Known As (also lower case: aka). Amendment: A change or modification. See Codicil. Ancestor (an Ascendant): A deceased relative such as a parent or grandparent from whom one is descended. Ancillary Administration: A secondary administration in a state where the decedent owned property and which is not the state where the decedent was domiciled. Annuity: The right to receive fixed sums of money at regular intervals. Appoint: To designate and empower particular person(s) with authority to perform specified duties. Appraisal: An evaluation by disinterested and qualified persons as to the value of assets. Assets: All property of a person, corporation or estate of a decedent; real or personal, tangible or intangible. Attorney-in-fact: A person with the power granted under a power of attorney. B Beneficiary: An entity who benefits from the act of another. -
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 -
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. -
Ademption by Extinction: Smiting Lord Thurlow's Ghost
ADEMPTION BY EXTINCTION: SMITING LORD THURLOW'S GHOST John C. Paulus* INTRODUCTION Testator (T)properly executes a will giving his farm, Blackacre, to his daughter (D), and the rest of his property to his son (S). T lives with D on Blackacre. Three years later T sells Blackacre and buys Whiteacre. T and D live together on Whiteacre until T's death four years later. From numerous utterances and acts it is very evident that T wants D to have Whiteacre for her own after his death. Will Whiteacre go to D or S? In most (maybe all) of the states, the answer would be, "S." The identity rule enunciated by Lord Thurlow in 1786 is followed.' As indicated by its application to T, D, and S, the dominating philosophy can bring forth some unsatisfactory results. Lord Thurlow's opinion calls for the application of a simple test in determining whether or not a specific devise adeems: If the asset identified as the exclusive subject of the devise is not held by the testator at his death, the devise fails.' Ademption by extinction, as this problem area is uniformly called, is reduced to a matter of identifying, if possible, the devised item in the estate.' The most often quoted statement by Lord Thurlow is: "And I do * Professor of Law, Willamette University. Visiting Professor of Law, Texas Tech University 1970-71. 1. Ashburner v. Macguire, 29 Eng. Rep. 62 (Ch. 1786). This hypothetical is similar to the facts in Ashburner in that the testator sells the devised asset (Blackacre). Three years later in Stanley v. -
Coming to Terms with the Uniform Probate Code's Reformation of Wills
University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2012 Coming to Terms with the Uniform Probate Code's Reformation of Wills Wayne M. Gazur University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Estates and Trusts Commons, and the Evidence Commons Citation Information Wayne M. Gazur, Coming to Terms with the Uniform Probate Code's Reformation of Wills, 64 S.C. L. REV 403 (2012), available at https://scholar.law.colorado.edu/articles/740. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 64 S. C. L. Rev. 403 2012-2013 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue Feb 28 11:04:51 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information COMING TO TERMS WITH THE UNIFORM PROBATE CODE'S REFORMATION OF WILLS Wayne M. -
California Law Revision Commission
STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION STAFF REPORT California Uniform Prudent Investor Act March 1998 California Law Revision Commission 4000 Middlefield Road, Room D-1 Palo Alto, CA 94303-4739 NOTE This is a special edition of the Uniform Prudent Investor Act setting out the origi- nal explanatory text from the Commission’s recommendation and the final statutory text with official Commission Comments. Staff Report on California Uniform Prudent Investor Act UNIFORM PRUDENT INVESTOR ACT * A new Uniform Prudent Investor Act was approved by the National Conference of Commissioners on Uniform State Laws in the summer of 1994.1 The new act seeks to modernize investment practices of fiduciaries, focusing on trustees of pri- vate trusts. The primary objectives of the UPIA are stated in its Prefatory Note: (1) The standard of prudence is applied to any investment as part of the total portfolio, rather than to individual investments. In the trust setting the term “portfolio” embraces all the trust’s assets.… (2) The tradeoff in all investing between risk and return is identified as the fiduciary’s central consideration.… (3) All categoric restrictions on types of investments have been abrogated; the trustee can invest in anything that plays an appropriate role in achieving the risk/return objectives of the trust and that meets the other requirements of prudent investing.… (4) The long familiar requirement that fiduciaries diversify their investments has been integrated into the definition of prudent investing.… (5) The much criticized former rule of trust law forbidding the trustee to dele- gate investment and management functions has been reversed. -
Uniform Trust Code
D R A F T FOR DISCUSSION ONLY UNIFORM TRUST CODE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS MARCH 10, 2000 INTERIM DRAFT UNIFORM TRUST CODE WITHOUT PREFATORY NOTE AND COMMENTS Copyright © 2000 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal. UNIFORM TRUST CODE TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS AND DEFINITIONS SECTION 101. SHORT TITLE. ............................................................ 1 SECTION 102. SCOPE. ................................................................... 1 SECTION 103. DEFINITIONS. ............................................................. 1 SECTION 104. DEFAULT AND MANDATORY RULES. ...................................... 4 SECTION 105. QUALIFIED BENEFICIARIES. ............................................... 5 SECTION 106. NOTICE. .................................................................. 5 SECTION 107. COMMON LAW OF TRUSTS. ................................................ 6 SECTION 108. CHOICE OF LAW. ......................................................... -
There Are Two Types of Declarations Permitted Under the Act. the First Is
ADVANCE DIRECTIVES There are two types of Declarations permitted under FOR THESE REASONS, ROCKY MOUNTAIN EYE the Act. The first is a Declaration (often called a “Living SURGERY CENTER HAS CHOSEN NOT TO HONOR This information is being provided to you for reference Will”), that is an instruction given only to your attending OR RECOGNIZE A PATIENT’S ADVANCE only, and is not intended as legal advice. You should health care providers. It does not give instructions to or SHOULD I HAVE AN ADVANCE DIRECTIVE? DIRECTIVE. PHYSICIAN OWNERSHIP consult with your family, attorney or other advisors about appoint another person to make decisions for you. Advance Directives for your medical treatment. The decision is yours. Montana law does not require The second Declaration (often referred to as Appoint- that you have one. The discussion above will help you to weigh your options and decide if you want to prepare an The Patient Self Determination Act (“PSDA”) requires ment of an Agent or a Power of Attorney) appoints PHYSICIAN OWNERSHIP most health care facilities to advise patients of their another person(most often a spouse, parent, child or Advance Directive to guide your physician or your agent health care decision-making rights. This section on close friend) to make medical treatment decisions for if you are unable to make your own decisions. There are Your physician may have financial and ownership inter- Advance Directives is intended to comply with that law. you when you are unable to do so on your own. numerous options, and you should choose the option est in Rocky Mountain Eye Surgery Center, Inc. -
Part Vi — Resulting Trusts
Equity and Trusts 06 – Resulting Trusts PART VI — RESULTING TRUSTS I Introduction A Definition A resulting trust arises where there has been a transfer of property and the transferor does not intend (or is presumed not to have intended) to confer a beneficial interest upon the transferee. For example, if A transfers legal title in property to B, not intending B to have any equitable interest in the property, then B is said to hold the property on resulting trust for A, such that A retains an equitable interest in same. The word ‘result’ in ‘resulting trust’ derives from the Latin resaltire, meaning ‘to jump backwards’. It describes the movement of the equitable interest, which ‘jumps backwards’ to the transferor from the transferee. An etymological analysis is thus particularly apt to describe the nature of the modern resulting trust. Equity recognises a resulting trust as arising in three circumstances: 1 Voluntary transfer of property If A voluntarily (ie, for no consideration) transfers property to B, B will be presumed to hold that property on resulting trust for A (‘presumption of resulting trust’). This presumption may be rebutted by evidence of a contrary intention: for example, an intention to make a gift; 2 Purchase in the name of another If A makes contributions to the purchase price of property, which is held in the name of B, B will be presumed to hold that property on resulting trust for A to the extent of A’s contribution (‘purchase money resulting trust’). This presumption is also rebutted by evidence of contrary intention, such as an intention to make a gift, or by a presumption of advancement (that, having regard to the type of relationship between A and B, A intended to advance himself — or herself: Nelson v Nelson — by making a gift); and 3 Failure of an express trust If an express trust fails for any reason, the property will result back to the original owner automatically and irrespective of the settlor or beneficiary’s intention. -
IN the COURT of APPEALS of TENNESSEE at JACKSON May 13, 2015 Session
IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 13, 2015 Session ROBERT W. MILLS v. NITA D. MILLS, ET AL. Appeal from the Chancery Court for Shelby County No. CH1301272 Arnold B. Goldin, Chancellor ________________________________ No. W2014-00855-COA-R3-CV – June 24, 2015 _________________________________ This case involves various causes of action related to the administration of an estate, specifically, the executor‘s action in failing to fund a residuary trust. The trial court granted summary judgment on the grounds that no assets remained in the estate to fund the residuary trust, the expiration of the statute of limitations, and laches. Although we rely on different grounds, we affirm the trial court‘s order granting summary judgment and dismissing the complaint. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the Court, in which BRANDON O. GIBSON, J., and KENNY ARMSTRONG, J., joined. Lee S. Saunders and Robert Steven Butler, Somerville, Tennessee, for the appellant, Robert W. Mills. Kacey L. Faughnan, Edward T. Autry, and Joseph B. Reafsnyder, Memphis, Tennessee, for the appellees, Nita D. Mills, and James Johnson. OPINION Background On January 30, 2013, Plaintiff/Appellant Robert W. Mills (―Appellant‖) filed a Complaint to Compel Disclosure of Residual Trust or Alternatively for Declaratory Judgment and Judicial Estoppel, For Equitable Relief, For Constructive Trust to Prevent Unjust Enrichment, For Resulting Trust, For Accounting and for Injunction against Appellees Nita D. Mills (―Ms. Mills‖ or ―Defendant Mills‖), Individually and as Executrix of the Estate of William B. -
Page 1 of 4 N.C.P.I.—Civil 865.65 TRUSTS by OPERATION of LAW—PURCHASE MONEY RESULTING TRUST (REAL OR PERSONAL PROPERTY). GENERAL CIVIL VOLUME JUNE 2014
Page 1 of 4 N.C.P.I.—Civil 865.65 TRUSTS BY OPERATION OF LAW—PURCHASE MONEY RESULTING TRUST (REAL OR PERSONAL PROPERTY). GENERAL CIVIL VOLUME JUNE 2014 ------------------------------ 865.65 TRUSTS BY OPERATION OF LAW1 — PURCHASE MONEY RESULTING TRUST (REAL OR PERSONAL PROPERTY).2 The (state number) issue reads: "[Is] [Was] (identify property) held under a purchase money resulting trust by (name alleged trustee)?" You will note that in this issue I have used the word "trust." A trust is a legal relationship between persons. A trust exists when one person acquires property under circumstances where he incurs a legal duty to handle that property in a particular way so as to benefit another person. A 1 Trusts created by operation of law are classified into resulting trusts and constructive trusts. "[T]he creation of a resulting trust involves the application of the doctrine that valuable consideration rather than legal title determines the equitable title resulting from a transaction; whereas a constructive trust ordinarily arises out of the existence of fraud, actual or presumptive - usually involving the violation of a confidential or fiduciary relation - in view of which equity transfers the beneficial title to some person other than the holder of the legal title. Also, a resulting trust involves a presumption or supposition of law of an intention to create a trust, where as a constructive trust arises independent of any actual or presumed intention of the parties and is usually imposed contrary to the actual intention of the trustee." Bowen v. Darden, 241 N.C. 11, 13-14, 84 S.E.2d 289, 292 (1954).