Decedents Outline 3

Decedents Outline 3 - Decedents Estates and Trusts Stephen...

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Decedents’ Estates and Trusts © Stephen Hunt, Jr. Spring 2002 I. Introduction A. Ways to transfer property 1. Inter Vivos Transfers a. Expenses, debts, recreation, taxes, etc. b. Outright gifts c. Gifts in Trust d. Gifts Causa Mortis e. Future Interests f. Powers of Appointment 2. Transfers Effective Upon Death a. Probate Transfers i. Intestate Succession ii. Transfers by Will b. Non-Probate Transfers i. Joint Tenancies and Tenancies by the Entirety ii. Life Insurance iii. Annuities iv. Retirement Plans v. Joint interests with Survivorship Rights vi. vii. Inter Vivos Trusts B. Why Avoid Probate? 1. Expensive 2. Slow 3. Public 4. Complex * Simple in a way b/c you just go to court, but then you have to deal with the Court and all its related problems. C. Gifts Causa Mortis – “Deathbed Gifts” 1. If you end up living, it’s considered like a conditional gift. The condition was you dying, so because the condition was not fulfilled (you lived), the gift is revocable. 2. Normally, gifts are not revocable. D. Valid Present Gift of a Future Interest vs. Invalid Testamentary Gift ( Gruen) 1. Some transfers may be seen either way (if you give something away during life to avoid inheritance taxes, but you don’t actually give up possession). 2. Present gift of a future interest a. If a valid, it would be OK because it cannot be revoked b. Requirements i. Intent to make a present transfer ii. Delivery (actual or constructive) iii. Acceptance by donee 1
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3. Testamentary transfer – would make the transfer invalid (b/c did not meet the will requirements). Also could be revoked. E. Joint Bank Accounts 1. Traditionally, you may have a claim against a spouse for taking “your” money out of the account. 2. Possible Purposes a. To let it go to the spouse after death, while still avoiding probate and giving spouse no rights to it during life. b. To give the joint holder unlimited shared rights during lifetime (sounds the most like an invalid will). c. To empower someone to do your banking for you if you are incapacitated. 3. Approaches to validity a. Stage 2 – Invalid will b. Stage 3 (trend) – You can pass a law saying they can pick either way to have a joint bank account. II. INTESTATE SUCCESSION A. When do Intestacy Statutes become relevant? 1. If people do not write a will, or if will is invalid or only disposes of part of property. 2. Will says “heirs” (that just means people who take by intestate succession, so it doesn’t help. 3. To determine who has standing to contest a will (only people who would benefit under a will have standing to contest the will). B. Policies Behind Intestacy 1. Stage 1 – To protect the Upper class. 2.
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This note was uploaded on 12/01/2009 for the course LAW 577 taught by Professor Staff during the Spring '08 term at Arizona.

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Decedents Outline 3 - Decedents Estates and Trusts Stephen...

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