Trusts & Estates Essentials Power Point Slides Class #3

Trusts & Estates EssentialsPower Point Slides Class #3 8-21-19: National Spumoni Day

UNIT ONE: BASELINES CHAPTER 2: INTESTACY Assigned Problems 2.2-2.3 & Section 2.3

Problem 2.2 under UPC 2-102 & Fl. Stat. 732.102Last Names M-Q Arturo (A) recently died intestate. What share of his estate goes to his surviving spouse, Elvira (E), in the following circumstances? (b) A is survived by E and by no parent or descendant. UPC: Spouse = 100%FL: Spouse = 100% • A is survived by E; their son, G; and his mother, H. [Structure of problems means assume no separate descendants of E] UPC?FL?

Problem 2.2 under UPC 2-102 & Fl. Stat. 732.102Last Names M-Q Arturo recently died intestate. What share of his estate goes to his surviving spouse, Elvira (E), in the following circumstances? • A is survived by E; their son, G; and his mother, H. [Structure of problems means assume no separate descendants of E] UPC: Spouse = 100%FL : Spouse = 100% (c) A is survived by E and his two children from a prior marriage. UPC?FL? (d) A is survived by E and her three children from a prior marriage. UPC?FL?

Problem 2.2 under UPC 2-102 & Fl. Stat. 732.102Last Names M-Q Arturo recently died intestate. What share of his estate goes to his surviving spouse, Elvira (E), in the following circumstances? (c) A is survived by E and his two children from a prior marriage. UPC: Spouse = $150,000 plus1/2 of any balance FL: Spouse = 50% (d) A is survived by E and her three children from a prior marriage. Because A has no living descendants: UPC: Spouse = 100%FL: Spouse = 100%

Problem 2.2 under UPC 2-102 & Fl. Stat. 732.102Last Names M-Q Arturo recently died intestate. What share of his estate goes to his surviving spouse, Elvira (E), in the following circumstances? (e) A is survived by E, her three children from a prior marriage, and his mother. UPC?FL? (f) A is survived by E and her three children from a prior marriage, and Giorgio, the son of A & E.. UPC?FL?

Problem 2.2 under UPC 2-102 & Fl. Stat. 732.102Last Names M-Q Arturo recently died intestate. What share of his estate goes to his surviving spouse, Elvira (E), in the following circumstances? (e) A is survived by E, her three children from a prior marriage, and his mother. Because A has no living descendants: UPC: Spouse =$300,000 plus 3/4 of any balance FL: Spouse = 100 % (f) A is survived by E and her three children from a prior marriage, and Giorgio, the son of A & E.. UPC: Spouse = $225,000 plus 1/2 of any balance FL: Spouse = 50%

Problem 2.2 under UPC 2-102 & Fl. Stat. 732.102Last Names M-Q A recently died intestate. What share of his estate goes to his surviving spouse, Elvira (E), in the following circumstances? (g) A is survived by E and E’s child (B) conceived during her extra-marital relationship with another man. • Even if B’s paternity is known/proven, A has no surviving descendants or parents, so E gets all (plus a scarlet letter). • Note that if B’s paternity is not known/proven when A dies, presumption that child born during the marriage is a child of the marriage, so B would be treated as descendant of A & E gets all.

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? • a surviving spouse, but no descendant or parent • Same as Problem 2.2(b) • UPC: Spouse = 100%FL: Spouse = 100% (c) a surviving spouse and a parent, but no descendant; • Same as Problem 2.2(e) • UPC: Spouse = $300,000 plus 3/4 of any balance; Parent gets rest. • FL: Spouse = 100%; Parent gets nothing (b) a surviving spouse and descendants? Depends on…?

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent died leaving …? (b) a surviving spouse (Yolanda/Y) and descendants? • If all of X’s descendants also Y’s descendants • And Y has no separate descendants: All to Y • And Y does have separate descendants • UPC: Spouse = $225,000 plus 1/2 of any balance • FL: Spouse = 50% • Both: rest to X’s descendants • If X has descendants that are not Y’s descendants • UPC: Spouse = $150,000 plus 1/2 of any balance • FL: Spouse = 50% • Both: rest to X’s descendants

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? (d) descendants but no surviving spouse UPC = FL = ? (e) a parent, but no surviving spouse or descendants UPC = FL =? (f) two siblings, but no surviving spouse, descendant, or parent: UPC = FL=?

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? (d) descendants but no surviving spouse = All to descendants (e) a parent, but no surv. spouse or [issue] = All to parent (f) two siblings, but no surviving spouse, descendant, or parent: • If no living descendants of deceased siblings, siblings split equally • If living descendants if deceased siblings, then to siblings and those living descendants (by statutory form of representation)

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? • [ONLY] two first cousins, descendants of the decedent’s maternal grandparents; one first cousin, a descendant of the decedent’s paternal grandparents. • UPC = FL = ?

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? • [ONLY] two first cousins, descendants of the decedent’s maternal grandparents; one first cousin, a descendant of the decedent’s paternal grandparents. • Paternal cousin gets half, maternal cousins split other half (g) a [paternal] grandparent, but no surviving spouse, descendant, parent, or sibling; [assume no qualified relatives on maternal side];

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? (g) a [paternal] grandparent, but no surviving spouse, descendant, parent, or sibling; [assume no qualified relatives on maternal side] • If no living descendants of deceased siblings  grandparent • If living descendants if deceased siblings, then to those living descendants (h) no surviving spouse, descendant, parent, sibling, grandparent, or descendant of grandparent;

Problem 2.3 under UPC & Fl. Stat. Last Names R-Z Who takes what under each of the following examples in which the intestate decedent (Xavier/X) died leaving …? (h) no surviving spouse, descendant, parent, sibling, grandparent, or descendant of grandparent; --To families of deceased spouses or to escheat.

Section 2.3: Modes of DistributionPer Stirpes/Representation Three Systems • English Per Stirpes = Pure Per Stirpes = Florida. • Modified Per Stirpes (UPC 1969) • Per Capita Each Generation (UPC 1990) Underlying Rules: [Ignoring surviving spouse], descendants of living heirs take nothing; branches with no living heirs take nothing. Underlying Tension: Among living heirs… • Treat each branch of the family equally v. • Treat each taker of the same generation equally

Modes of Distribution: Representation: Example 1 “A” is the decedent.

Systems of Representation: Example 1 “A” is the decedent.

Systems of Representation: Example 2 “A” is the decedent.

Systems of Representation: Example 2English Per Stirpes “A” is the decedent.

Systems of Representation: Example 2Modern Per Stirpes (Per Capita with Representation) “A” is the decedent.

Systems of Representation: Example 2(Per Capita at each Generation) “A” is the decedent.

Section 2.3: Modes of DistributionEstate of Mebust Claim (in a complicated family situation; slides follow) is that Montana should use pure [English] per stirpes rather than modified per stirpes. Court correctly holds that the state statutes adopted the latter method. Mostly interesting as an example to help show differences between methods.

Estate of Berger O. Mebust, 843 P2d 310 (1992) Try English Per Stirpes

Estate of Berger O. Mebust: English Per Stirpes

Estate of Berger O. Mebust, 843 P2d 310 (1992) Try Modern Per Stirpes

Estate of Berger O. Mebust: Modern Per Stirpes

Estate of Mebust, 843 P2d 310 (1992) Try Per Capita at each generation

Estate of Berger O. Mebust: Per Capita at Each Generation

UNIT ONE: BASELINES Return to CHAPTER 1: OVERVIEW 1.4.4– 1.4.6

Section 1.4: Preliminary Topics on Death & Dying1.4.4 Disposition of Final Remains Old Common Law: “There can be no property in a dead body. A man cannot by will dispose of his dead body. If there be no property in a dead body it is impossible that by will or any other instrument the body can be disposed of.” Williams v. Williams, 20 Ch. Div. 659 (1882) (England) Modern Law: • Generally permits enforcement of the decedent’s preferences. • ARIZ. REV. STAT. ANN. § 32-1365.01: “A legally competent adult may prepare a written statement directing the cremation or other lawful disposition of the legally competent adult's own remains . . . .The written statement may but need not be part of the legally competent adult's will.”

1.4.4 Disposition of Final RemainsCohen v. Guardianship of Cohen • In 1992, Hilliard Cohen (decedent) executed a will requesting “a traditional Jewish burial in our family plot in Mount Hebron Cemetery, Flushing, Queens, N.Y.” • Margaret, Hilliard’s surviving spouse of 40 years, testified Hilliard later changed his mind and requested cremation or burial with her in Florida. (Margaret is not Jewish, so she cannot be buried in the Cohen family plot). • Hilliard’s siblings, Ivan and Cressie, object to the Florida burial and sue to enforce the will. • Margaret agreed not to cremate Hilliard’s remains, but insisted on interment in Florida.

1.4.4 Disposition of Final RemainsCohen v. Guardianship of Cohen • General rule for interpreting wills: extrinsic evidence contradicting terms of will is not admissible absent ambiguity in will. • Following this rule, Trial Court held: “traditional Jewish burial” is ambiguous; extrinsic evidence of intent admissible. • Appellate Court says ambiguity unnecessary here. • Testamentary burial instructions are rebuttable by extrinsic evidence of contrary or changed intent. • “a testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition for his body”

1.4.4 Disposition of Final RemainsCohen v. Guardianship of Cohen • Appellate Court says ambiguity unnecessary here. • Testamentary burial instructions are rebuttable by extrinsic evidence of contrary or changed intent. • “a testamentary disposition is not conclusive of the decedent's intent if it can be shown by clear and convincing evidence that he intended another disposition for his body” • Does it make sense to essentially have lower standard of proof to change will in this particular way? • Is allowing decedents control of their remains a sensible rule?

Section 1.4: Preliminary Topics on Death & Dying1.4.5 The Slayer Rule • Generally, a slayer must forfeit all benefits he or she might derive from the victim under a will, trust, intestacy, or non-probate instrument. UPC § 2-803(b). • Florida Statute § 732.802 shows the variety of situations covered • Which forms of homicide trigger the Slayer Rule? • UPC § 2-803: “felonious and intentional killing” • Fl. Stat. 732.802(a): “A … person who unlawfully and intentionally kills or participates in procuring the death of the decedent…” • Castro case to make the point (several ways) that slayer rule can be invoked without meeting standards used in criminal cases.

Section 1.4: Preliminary Topics on Death & Dying1.4.6 Disclaimers • Disclaimer allows a person to refuse an inheritance. • Disclaimant is treated as having predeceased the decedent. UPC § 2-1106(b)(3). • Relation-Back Doctrine: • disclaimer “relates back” to immediately before the decedent’s death • Thus, disclaimant never legally gained possession of disclaimed property • Disclaimed interest passes to the next eligible taker under the decedent’s will or intestacy statute. • Why disclaim? • Transfer tax avoidance • Asset protection against creditors

Section 1.4: Preliminary Topics on Death & Dying1.4.6 Disclaimers • Once an individual makes a valid disclaimer, the disclaimer becomes irrevocable. • When is a disclaimer barred? • UPC 2-1113 • (a) by a written waiver of the right to disclaim. • (b) If … before the disclaimer becomes effective: • (1) the disclaimant accepts the interest sought to be disclaimed [or] • (2) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so.[ This covers renting the lot out as in Q after the case]

Section 1.4: Preliminary Topics on Death & Dying1.4.6 Disclaimers • When is a disclaimer barred? • UPC 2-1113 • Other Legal Limits • Many states: Must disclaim within 9 months of receiving the property • Limits to prevent use of disclaimer to avoid debts or to qualify for benefits. E.g., • You lose Medicaid eligibility if you disclaim • Disclaimers lose out to federal tax liens

1.4.6 DisclaimersIn Re Estate of Gardner • Marlene Richardson inherited a life estate in real property in trust from decedent Scott Gardner’s estate. • Trust required Richardson to make reasonable contributions for maintenance of property. • Property encumbered by mortgage of $205,330. • Richardson sought to disclaim retroactively 20 months after Gardner’s death to avoid contributing to mortgage. • NOTE: Arizona statutes here based on UPC

1.4.6 DisclaimersIn Re Estate of Gardner • Evidence that she had “accepted” the property and so was barred from disclaiming it: • R physically occupied the property in the same manner she had prior to Decedent's death. • R arranged to pay the utilities and taxes on the Property • R made repeated affirmative statements asserting her present right to “enjoy the benefits of ownership during [her] lifetime” and to exclude the remaindermen. • Attempt to disclaim more than nine months after court had ordered her to pay the mortgage on the property. • QUESTIONS?

Trusts & Estates Essentials Power Point Slides Class #3