Flashcards in Creating a Will Deck (5)
Limitations in Writing Wills
Controlling Future Behavior/ Deadhand Control: Limits to how much a dead person an control of their money (Ex: Estate of Fienberg: Court's do not like a testator requiring marriage or children but rewarding a grandkids who marry within the religion is okay - can give money however you want.
Slayer Rule: If someone intentionally kills the testator, they cannot inherit (Ex: Ford - Daughter murdered mom, but was found insane (not intentional) however, the court probably was influenced but he State inheriting the money because she was in an institution)
UPC 2-803: An individual who feloniously and intentionally kills the decedent forfeits all benefits under this Article w/respect to the decedents estate ..
Fiduciary Duty: Attorney client privilege by nature is a fiduciary one. However, the will has no legal effect until the moment of the testator's death.
Duty to Third Party Beneficiaries: If the attorney never represented the beneficiaries, he owes them no professional duty (Ex: Barcelo - Grandchildren file malpractice suit because attorney's negligence caused their trust to be invalid).
(NOTE: Also no duty to determine a client is not lucid to create a will).
Probate Estate Assets (Generally)
Type of Assets: Assets owned by decedent at death that pass by will or inheritance and that are subject to administration by personal representative.
Ex: Real property held solely by decedent or his share of tenancy in common/community property; cash or bank accounts solely in decedent's name, stocks or bonds in decedent's name; personal property
Non-Probate Assets (Generally)
Type of Assets: Assets that do not pass by will or inheritance and that are not subject to administration by personal representative.
Ex: Real property held in joint tenant w/right of survivorship or by the entireties, Joint bank account w/right of survivorship, trust assets or life insurance or pension plan proceeds, property subject to power of appointment
*NOTE: if a non-probate asset is disposed of by will, such asset is not affected by the will, the provision n the will is disregarded