Creating a Will

Question 1

Limitations in Writing Wills

Answer 1

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 ..

Question 2

Lawyer/Client Relationship

Answer 2

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).

Question 3

Probate Estate Assets (Generally)

Answer 3

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

Question 4

Non-Probate Assets (Generally)

Answer 4

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

Question 5

Process of Probate in a Nutshell

Answer 5

Jane dies w/no will&raquo_space; Closest relative petitions for appointment as personal representative/administrator (Statues guide if one or more person is interested). This person bears responsibility for collecting all of Jane’s assets and has authority to act on behalf of Jane’s estate. Sometimes the personal rep. has to submit accounting to the probate court.

If Jane has a will, she names the executor in the will who then goes to probate to petition of “letters of testamentary.” The executor offers the will for probate to simply prove it was properly executed and provide notice to anyone who might contest. If there is no contest, the executor distributes the estate after paying debt, taxes, and expenses of the estate.