Slides 1 Flashcards
INTENT IS SUPREME
in drafting and when interpreting
When drafting, the attorney must determine what client wants to do (his/her “intent”). This often means really getting to know the client and family dynamics and their wants and needs.
When interpreting a will or trust, the P.R. and the advising attorney are obligated to determine the client’s intent.
Courts likewise use testator/donor intent as the primary point of reference in construction of language.
Drafting vs. default rules
“The UPC is, by and large, a default statute. To the extent a will is prepared and has a provision to deal with a particular situation, the will controls and dictates the result. When a situation arises for which there is no provision in the will, the statute (by default) provides the rules to deal with it. If there is no will at all, the intestacy rules are the ultimate default provisions, supplying all the answers.”
How Does Property Pass at Death?
Probate property: under a will (where the testator may opt out of most default rules) or under intestacy statutes (which are pure default rules.
Nonprobate property: through will substitutes like contracts for life insurance, beneficiaries of retirement plan benefits, TOD/POD account designations, etc.
Only probate property goes through the probate process (more on this later).
Dead Hand Control
The organizing principle of the American law of donative transfers is freedom of disposition. Property owners have the nearly unrestricted right to dispose of their property as they please… American law does not grant courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions … The main function of the law in this field is to facilitate rather than regulate. The law serves this function by establishing rules under which sufficiently reliable determinations can be made regarding the content of the donor’s intention. Restatement (Third) of Property: Wills and Other Donative Transfers §10.1 cmt. c
In seeking to determine the donor’s intention, all relevant evidence, whether direct or circumstantial, may be considered, including the text of the donative document and relevant extrinsic evidence. Restatement (Third) of Donative Transfers §10.2
Rest. (2d) Wills & Don. Trans. §5.1
Unless contrary to public policy or violative of some rule of law, a provision in a donative transfer which is designed to prevent the acquisition or retention of an interest in property in the event of any failure on the part of the transferee to comply with a restraint on personal conduct is valid.
Formal v. Informal Probate
Formal – The court supervises the actions of the personal representative in administering the estate through a potentially costly and time consuming process.
Informal – The personal representative may administer the estate without court supervision unless an interested party asks for court review.
