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INTRODUCTION Chapter 1. INTRODUCTIONPersonalCourse DescriptionHISTORICAL BACKGROUNDReal PropertyPersonal PropertyChancery: Third System of CourtsTERMINOLOGYConsequences of Three-Tier Court SystemOther Points About TerminologyUNIFORM PROBATE CODE (UPC)SOCIAL POLICY CONCERNS. WILLIAM THE CONQUEROR.

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1. WILLS & TRUSTS OUTLINE D. Kelly Weisberg Professor of Law

3. WILLIAM THE CONQUEROR

4. WILLIAM THE CONQUEROR

6. WILLIAM THE CONQUEROR

7. WILLIAM THE CONQUEROR

8. INTESTATE SUCCESSION Chapter 2 INTRODUCTION Intestacy Survey Terminology SHARE OF THE SURVIVING SPOUSE Statute of Distribution (Common Law) UPC California SHARE OF DOMESTIC PARTNERS SHARE OF ISSUE Statute of Distribution (Common Law) UPC California REPRESENTATION: Maud v. Catherwood

10. INTESTATE SUCCESSION Chapter 2 (cont’d) SHARE OF ASCENDANTS & COLLATERAL RELATIVES Civil law Common law Parentelic Problems

11. INTESTATE SUCCESSION Chapter 2 (cont’d) SPECIAL PROBLEMS OF STATUS Posthumous Heirs Aliens Half-bloods Simultaneous Death Adoption

12. INTESTATE SUCCESSION Chapter 2 (cont’d) ADOPTION By, From, Through Stepparent Adoption Equitable Adoption Adult Adoption Estate of Ford NONMARITAL CHILDREN DISQUALIFICATION FOR MISCONDUCT

13. INTESTATE SUCCESSION Chapter 2 (cont’d) PRIOR TRANSACTIONS OF THE DECEDENT Advancements Definition Intention To Whom It Applies Hotchpot Effect on Share of Surviving Spouse Effect on Share of Donee’s Issue Valuation Releases and Assignments Definition Effect on Releasor’s/Assignor’s Heirs

14. FAMILY PROTECTION AND RESTRICTIONS ON TESTATION Chapter 3 ALLOWANCES, HOMESTEADS AND EXEMPTIONS Family Support Allowance Homestead Exemption Laws Personal Property Exemptions ADDITIONAL COMMON LAW AND STATUTORY RIGHTS OF THE SURVIVING SPOUSE Dower Curtesy Statutory Forced Share Community Property

15. FAMILY PROTECTION AND RESTRICTIONS ON TESTATION Chapter 3 (cont’d) ATTEMPTS TO DEFEAT SURVIVING SPOUSE’S RIGHTS Election by the Surviving Spouse UPC Augmented Estate Concept Effect of Surviving Spouse’s Election on Estate Plan PROTECTING RIGHTS OF OMITTED FAMILY MEMBERS (PRETERMITTED HEIRS) Pretermitted Issue Definition Types of Statutes Extrinsic Evidence To Whom applies Limitation (Dispose of All of Estate) Pretermitted Spouse CHARITABLE RESTRICTIONS

16. EXECUTION OF WILLS Chapter 4 FUNCTIONS OF FORMALITIES FORMAL REQUIREMENTS History Writing Signature Publication versus Acknowledgment Attestation Testamentary Intent Attestation Clause SAFEKEEPING OF WILLSl

17. EXECUTION OF WILLS Chapter 4 (cont’d) SIGNATURE Definition End Requirement Effect of Material After Signature PUBLICATION VERSUS ACKNOWLEDGMENT ATTESTATION Presence Requirement (Cunningham case) Interested versus Competent Witnesses Self-proved Wills TESTAMENTARY INTENT Defined Conditional Wills Letter Cases ATTESTATION CLAUSE SAFEKEEPING OF WILL

18. EXECUTION OF WILLS Chapter 4 (cont’d) HOLOGRAPHIC WILLS Requirements Problem of Non-Holographic Material Letterhead & Will Forms Theories to Validate Such a Will Surplusage Intent to Incorporate UPC ORAL WILLS Nuncupative Wills Soldiers’ and Sailors’ Wills

19. WILL DOCTRINES Chapter 5 INTEGRATION Requirements REVOCATION BY CODICIL Codicil: definition Effect: Will Speaks Again as of Date of Codicil Application Dependent on Testator’s Intention Problems INCORPORATION BY REFERENCE Defined Requirements Distinguished from Republication Holographic versus Non-holographic Material Liberal trend

20. WILL DOCTRINES Chapter 5 (cont’d) FACTS OR ACTS OF INDEPENDENT SIGNIFICANCE Defined Requirements Distinguished from Incorporation by Reference Use Liberal trend (UPC)

21. WILL DOCTRINES Chapter 5 (cont’d) EXTRINSIC EVIDENCE Definition Rules Plain Meaning Rule Patent versus Latent Ambiguity Rule Oral Declarations State of Mind Miscellaneous: Repugnancy, Read Will as a Whole, Avoid Intestacy Interpretation versus Construction

22. WLIL DOCTRINES Chapter 5 (cont’d) MISTAKE Mistake in Execution Mistake in Omission Mistake in Misdescription Property Persons Mistake in the Inducement

23. WILL REVOCATION Chapter 6 (cont’d) REVOCATION BY PHYSICAL ACT REVOCATION BY SUBSEQUENT INSTRUMENT REVOCATION BY OPERATION OF LAW RE-ESTABLISHING REVOKED WILLS

24. WILL REVOCATION Chapter 6 REVOCATION BY PHYSICAL ACT A. Statutory Requirements Regarding Sufficiency B. Requirement of Concurrent Intent C. Partial Revocation D. Proxy Revocation E. Common Law Presumption of Revocation F. Lost/Destroyed Wills

25. WILL REVOCATION Chapter 6 (cont’d) REVOCATION BY SUBSEQUENT INSTRUMENT Majority rule: sufficient to simply revoke Can be by will or codicil if executed with formalities Unexpressed intent of revocation – what do we do when we don’t know what testator intended?

26. WILL REVOCATION Chapter 6 (cont’d) REVOCATION BY OPERATION OF LAW Divorce Traditional View (does not revoke will) Modern View (modern statutes do revoke will) Subsequent marriage Modern View (will is revoked as to spouse) Exception: wills in contemplation of marriage

27. WILL REVOCATION Chapter 6 (cont’d) RE-ESTABLISHING REVOKED WILLS Revival Revocation of Revoking Codicil Automatic Revival Anti-Revival Dependent Relevant Revocation (DRR) Mistake Doctrine Effect: validates will, disregards revocation Limitation: some courts apply DRR only if there’s new, ineffective disposition or if revocation of Will #2 was by physical act Admissibility of extrinsic evidence Criticism: mechanical application

28. WILL CONTRACTS (Chapter 7) TYPES OF WILL CONTRACTS EXISTENCE OF A CONTRACT DEFENSES REVOCABILITY REMEDIES FOR BREACH GENERALLY REMEDIES FOR WRONGFUL REVOCATION EFFECT OF WILL CONTRACT ON SHARE OF SURVIVING SPOUSE

29. WILL SUBSTITUTES Chapter 8 LIFE INSURANCE JOINT TENANCY AND JOINT OWNERSHIP CONTRACT RIGHTS MULTIPLE PARTY ACCOUNTS GIFTS & GIFTS CAUSA MORTIS DEEDS

30. INTRODUCTION TO TRUSTS INTRODUCTION History Definition Parties Purposes CLASSIFICATION Inter vivos v. Testamentary Written v. Oral Express v. Operation of law Active v. Passive Trust v. Other Relationship INTENTION

31. Chapter 9: Elements of a Trust Intention Trustee Beneficiary Specific trust property Valid trust purpose

32. Chapter 12: CREATION OF TRUSTS Trusts Created by Will: Secret & Semi-Secret trusts Inter vivos trusts Methods of trust creation Formalities: writing requirement Statute of Frauds Parol Evidence Rule Oral trusts for the settlor Oral trusts for third parties

33. Chapter 12: Creation of trusts Introduction Advantages Common Problems (Osborn, Roberts) Types of Revocable Trusts Savings Bank Trusts Life Insurance Trusts Pour-over Trusts Policies Restricting Testation: Surviving Spouse’s Rights and Creditors’ Rights

34. Chapter 13: Nature of Beneficiary’s Interests Enforceability of Beneficiary’s Interest Transferability of Beneficiary’s Interest Amenability of Beneficiary’s Interest to Creditors

35. Chapter 14: Modification & Termination of Trusts Settlor’s Power to Modify or Terminate Trustee’s Power to Modify or Terminate Beneficiary’s Power to Modify or Terminate Judicial Power to Modify or Terminate

36. Chapter 15: Charitable Trusts Introduction History Nature of Charitable Trusts Charitable Purposes Modification of Charitable Trusts Supervision and Enforcement of Charitable Trusts

37. Chapter 16: Fiduciary Administration Function of Administration Probate and Contest of Wills Opening Administration Appointing a Personal Representative Tasks of the Personal Representative Estate & Trust Proceedings: Payment of Creditors’ Claims

38. Chapter 16 (cont’d): FIDUCIARY ADMINISTRATION Tasks of the Personal Representative Inventory and Collect the Decedent’s Assets Management of the Assets During Administration Receive and Pay Creditors’ Claims Distribute the Remaining Assets to Heirs or Beneficiaries

39. Chapter 17: The Fiduciary Office Qualification, Selection, Appointment & Removal of Fiduciaries Rights to Compensation & Indemnification General Fiduciary Standard Fiduciary Duties Duty of Loyalty Duty to Provide Information & Render Accounts Duty to Identify & Segregate Duty to Delegate

40. Chapter 11: Construction Problems in Estate & Trust Proceedings Classification Distributive Problems Ademption Satisfaction Abatement Miscellaneous Class Gifts Survival Requirements: Lapse

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