A Primer on Wills Author(s): LYNNE S. HILOWITZ Source: Family Advocate , Fall 2015, Vol. 38, No. 2, CROSSING PATHS WITH A TRUST (Fall 2015), pp. 41-45 Published by: American Bar Association Stable URL: https://www.jstor.org/stable/24628850 JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Family Advocate This content downloaded from 65.88.89.49 on Mon, 04 Apr 2022 22:49:19 UTC All use subject to https://about.jstor.org/terms X-,ck? X Jxf V V *\*' ^ ft ^,r/Va- . V /* Following Followingare aresome some basic basic definitions definitionsand andexplanations explanations of of concepts conceptsand andterms terms commonly commonly AA Primer on Wills Primer on used used in in planning planningand and drafting drafting wills wills as aspart partofofa aclient's client's complete completeestate estateplan. plan. By LYNNE S. HILOWITZ A "will" is a written instrument in which an individual, also called the testator, directs the disposition of WILL his or her property, appoints one or more people to administer its terms, specifies how final debts and "DAa ÇTPÇ taxestaxes should be paid, and ar,d sets sets out out additional instructions toto bebefollowed R S^10U'C' be Pa'd' additional instructions followedafter after death. death. _ "; _____ It is important to note that a will does not dispose of all of a person's property, since ownership of some property may pass automatically to other people at death. Such property, as described below, is not subject to the probate process—and should not be included in a will. document. Property that commonly passes this 11 I Joint Joint Ownership: Ownership: Where Where an an individual individual owns owns document. Property that commonly passes this is in is retirement accounts. In some property propertyjointly jointlywith with one one oror more more others, others, it will it way will way in retirement accounts. In states, some states, individuals also can their vehicles with a with a usually to to thethe joint owners usuallypass passautomatically automatically joint owners individuals alsoregister can register their vehicles "transfer on death" designation, allowing them upon upon the thedecedent's decedent'sdeath. death. While While thethe specific specific "transfer on death" designation, allowingto them to pass to the to individual named. named, wording wording varies varies depending dependingon onstate statelaw, law,the thetitle title totodirectly Pass directly the individual such property must usually specify that it is held in "joint tenancy with right of survivorship," or II w Trust Trust Property: Property: Property Property that that aa person person puts puts in a living trust or some other trust arrangement for married couples, "tenancy by the entirety" or « . . , . . r . . „ also passes accordingalso to passes the trust terms rather than according to the trust terms rather than communityproperty property with right or survivorship. , . . , , . . ... "community with right of survivorship." being being included includedin ina awill. will. Money and other property that passesthat according ■ I Payable Payable on on Death DeathDesignations: Designations: ForFor some some Money and other property passes accord to the of terms a will are assets." types typesof ofproperty, property, an an individual individual may may specify specify that thatterms to the of called a will "probate are called "probate assets." "Non-probate assets" are thoseare notthose subject to subject the a new new owner ownertake take it it directly directly when when he or heshe or dies she dies "Non-probate assets" not to the will or the probate rather rather than thandesignate designate ownership ownership in ain will a will or other or other will or theprocess. probate process. FALL 2015 41 This content downloaded from 65.88.89.49 on Mon, 04 Apr 2022 22:49:19 UTC All use subject to https://about.jstor.org/terms r^T^sPO<\TT'T\/rP Of ÇPOÇTTTVTi' manner manner by bywhich whicha atestator testator may may dispose dispose of property of property underunder a will varies a will greatly. varies greatly. ^ v^yoi v^yoi I I11VV12, 12,por por exatT)p|ei examp|e< a gift a gift 0r 0r bequest bequest of property of property may be may made be made "outright," "outright," or "in trust," or "in or trust," or PROVISIONS PROVISIONSa acombination. combination. In In addition, addition, the the nature nature of the ofbequest the bequest may bemay specific be specific or general, or general, and and conditional conditionalor orunconditional. unconditional. M Demonstrative Bequests: The "demonstrative" ■ I Outright Outright Gift: Gift: A A simple simple example example of of an an outright outright gift gift is: is: H Demonstrative Bequests: The "demonstrative" legacy legacy is a bequest of a certain sum or security, payable out of "Igive "I giveand andbequeath bequeaththe thesum sumof of$1,000 $1,000 to to John John Jones." Jones. "is a bequest of a certain sum or security, payable out of a particular particularfund fundoror account—for account—for example, example, a bequest a bequest of of Such Such aa gift giftisisunconditional, unconditional, unencumbered unencumbered by trust; by trust; whenwhen $ 1,000 1,000 payable payableout out ofof the the proceeds proceeds of aof specific a specific bondbond and and the the testator testatordies, dies,John John Jones Jones would would receive receive the sum the sum of of mortgage. mortgage.IfIfthe thefund fund designated designated is not is not sufficient sufficient to cover to cover $1,000, $1,000, assuming assumingsufficient sufficient funds funds are are in the in the probate probate estateestate to to the the bequest, bequest,ititmay may bebe paid paid from from thethe general general assets assets of the of the pay pay the thegift. gift. estate. H Trust: In to contrast the outright gift, a gift in trust __ ^ . S InIn Trust: In contrast the outrightto gift, a gift in trust c l • • i i i i fl General Bequests: This type of bequest is type exemplified 11 General Bequests: This of bequest is exemplifie disposes disposes of property of property by giving legalby title giving to the property legal title to the property r r i > , , . , i • i jl c ■ by a gift of a fractional the testator s estate, a by a portion gift of aof fractional portion of theor testator's estate, o to and the title to a named toa atrustee trustee andequitable the equitable title beneficiary. to a named beneficiary. . r • Tii • • i i i j i i ■ i general class of property in class the of estate. For in example: general property the estate. For example: The trustee, or principal, holds the property—which can 1 he trustee, or principal, holds the property—which can & r j ,■ tr •11 I give give to to my my friend friend Alice Alice one-half one-half of my estate. estate. be be tangible, tangible,intangible, intangible, real, real, personal, personal, or mixed—according or mixed—according to to the thetestator's testator's directions, directions, andand maymay pay the pay interest the interest or or principal to the as a will directs. principal to beneficiary the beneficiary as a will An Anexample example of a simple of agift simple in trustgift is: • I give my personal belongings to my son, Rafi. directs. The The subject subject of of the the gift giftisisnot notparticularized particularized in in the the same sam manner thespecific specific bequests above. Where in trust is: manner asasthe bequestsdiscussed discussed above. Whe assets of an estate are insufficient decedent's II give giveand and bequeath bequeath to my to Trustee my Trustee the sumthe of $10,000. sum of $10,000. assets of an estate are insufficientto to pay pay the the decedents de and the estate taxes, the law requires that the general gift My MyTrustee Trustee shall shall paypay the income the income to my to son,my Jim, son, until Jim, he isuntil he is and the estate taxes, the law requires that the general applied tofirst pay to such and and where such 21 21 years yearsold; old; when when my my son reaches son reaches the agethe of 21, agemy ofTrustee 21, mybe Trustee be first applied pay obligations, such obligations, where suc payments are necessary, the gifts are adeemed to the exte shall shall pay pay the the principal principal of the Trust of to the myTrust son. to my son. payments are necessary, the gifts are adeemed to the ex they theyare arereduced. reduced. TheThe law law further further differentiates differentiates betweenbetween Here, the trustee is made the owner of a $10,000 sum until Here, the trustee is made the owner of a $ 10,000 sumpersonal until pcrsona, and real and property. real property. General General bequests bequests ofofpersona persona the testator's son reaches age 21. Until that time, the trustee the testator's son reaches age 21. Until that time, the trustee property propgrty are adeemed ar£ adeemed before before devises deyises of real of rgal property. property. is is obligated obligatedtotopay pay the the sonson all income all income derived derived from from trust trust property, however, the principal of $10,000 is only delivered property, however, the principal of $10,000 is only delivered H Marital U Marjta| Bequests: Bequests; For federal por federal taxtax purposes, purposes,all a|] beques beques tothe the beneficiary when hethe reaches the age specified. (Details . ■ • . , •> > c __ .u _ _ „ > to beneficiary when he reaches age specified. (Details ' b r made to a surviving spouse made aretodeductible a surviving rrom spouse the are deductible testator from s the testa as to how the trustee may invest the principal are covered in as to how the trustee may invest the principal adjusted are gross covered estate. in adjusted For example, grQss if aestate testator's For gross examp es the section on "Fiduciary Provisions," below). the section on Fiduciary Provisions, is below). $6,530,000 ^ $6,530,000 after deducting after administrative deducting andadmin funera _ . expenses of $100,000, the adjusted expenses gross of $100,000, estate the adjusted would gross be estate would be ■ Conditional Conditional Gifts: Whether gift is made outright or in nnA rc , , Arin An„ , Ä Gifts: Whether a gift is amade outright or in $6,430,000. If the testator made a $3,000,000 bequest t a ,,& .. . , $6,430,000. If the testator made a $3,000,000 bequest to a trust, it may also be conditional. Examples of conditional . . , , ,, , , , , , trust, it also be may "conditional." Examples of conditional . ... . surviving spouse, then the taxable surviving estate spouse,would then the be taxable reduced estate to would be redu provisions provisions include: include: $3,430,000. $3,430,000. ••I Igive give and bequeath and bequeath to my daughter, to my Joan, daughter, if she is marriedJoan, if she is married The The"marital "marital deduction" deduction" is oneis ofone the most of the important most at atthe the timetime of my death, of my 1,000death, shares of 1,000 my A T&T shares stock. of my A T&T stock. devices devices for for estate estate and tax andplanning. tax planning. It includes It property include • •1 Igive give and bequeath and bequeath to my son, John, to my the sum son, of $10,000, John, the sum of $10,000, passing passing through through the the will as will wellas aswell property as property passing outp provided provided my estate, my for estate, tax purposes, for exceeds tax purposes, $100,000. exceeds $100,000. it. it. For For a bequest a bequest to qualify to qualify for the for marital the deduction, marital de it meet stock the technical requirements of the the estate tax statutes In In the the first first example,example, Joan doesn't get Joan the stock doesn't if she is single get the if she is single meet technical r when her her father,father, the testator, dies. testator, In the second, dies. if the testa when the In however. the second, The marital if thebequests testa- may however. be made The either marita outr in dies, trust. his If made trust,or the trust mustIf bemade drafted tor's tor's estate estate contains contains only $99,000only when he $99,000 dies, his son when John or he sonvia John in trust. vit that the principal, upon the death of the surviv would would not receive not any receive part of theany $10,000 part gift. of the provide $10,000 gift. provide that the principal, spouse, spouse, may may be freely be freely conveyed conveyed by the surviving by the surviv spouse HI Specific Bequests:Bequests: Specific bequests are gifts of bequests HI Specific Specific most are cases,gifts where of the most estate exceeds cases,the where federal the exempt es definitely ascertainable property, such as property, a particular piece such definitely ascertainable amount—$5.43 as a particular million in piece 2015—a amount—$5.43 qualifying marital mi of jewelry, a specific enumerated stock certificates bequest is almost an automatic requirement to reduce of jewelry, a antique, specific antique, enumerated stock certificates bequest is almost an es a and bonds, or a certain parcel of real property. the and bonds, or a certain parcelUnless of real property. taxes. However, Unless in certain the instances taxes. However, where the surviving in cert will specifies otherwise, this class of gifts, pursuant to law, will specifies otherwise, this class of isgifts, spouse's pursuant estate is equal to law, to oris greater spouse's thanestate the testator's is equa e the lastlast to be applied to applied the debts of to the decedent or taxes ofthe the to be the debts the marital decedent bequestor should taxes be the reduced marital to avoid bequest "double of the estate. However,However, where the decedent no longer of the estate. where theowns decedent taxes" upon no longer the death owns of thetaxes" surviving upon spouse. the death the the specific specific property property at death, or the at item death, is not or described the item is not described sufficiently, sufficiently, then thethen gift is the "adeemed" gift or is lost,"adeemed" and no or lost, and no substitution substitution is made is formade it. for it. 42 FAMILY ADVOCATE www.shopaba.org/familyadvocate This content downloaded from 65.88.89.49 on Mon, 04 Apr 2022 22:49:19 UTC All use subject to https://about.jstor.org/terms ■Unified Unified Credit orExemption: Federal AExemption: unified credit ■ Credit or Federal unified credit HAResiduary H Residuary Bequests: Bequests: The residuary Thedisposition residuary is the disposition is the offsets and taxes. estate taxes. estate is remainder imposed on offsets giftgift and estate An estate taxAn is imposed ontax remainder of a testator's of estate a testator's not disposed estate of elsewhere, not disposed of elsewhere, decedent's based the value of theby estate assets, aadecedent's estate estate based on the value on of the estate assets, either either specific by or specific general bequests. or general Usually,bequests. this provision Usually, this provisio including including life insurance. life insurance. In 2015, the In federal 2015, exemption the federal is theis last exemption the of the lastdispositive of the dispositive clauses and is clauses intendedand to include is intended to inclu amount amount is $5,430,000, is $5,430,000, and the lifetime and the giftlifetime amount is all gift property all amount property not otherwise is not disposed otherwise of asdisposed well as conditional of as well as conditiona the same. The maximum estate tax 40%. rate is that currently 40%. the same. The maximum estate tax rate is currently gifts gifts fail that to takefail effect to and take legacies effect thatand are renounced. legacies that are renounced. Inaddition, addition, states their own estate tax,may In about about 15 states15 impose theirimpose own estate tax, The residuary The residuary bequest bequest be made may outright be made or in outright trust, or in trust, although although most most exempt exempt estates up toestates $1 million.up Reducing to $ and 1 million. in some and wills, inReducing some the residuary wills, the bequest residuary is in the form bequest of an is in the form of a estate estate taxes taxes is an imperative is an imperative part of estate planning part of forestate some extended planning extended trust arrangement for trustsome arrangement for survivors.for survivors. clients. "Fiduciary" "Fiduciary" is a general is a term general for a person term named forasaanperson executor, named trustee, oras guardian an executor, in trustee, or guard FIDUCIARY FIDUCIARY a will or a will other estate or other planningestate document. planning Fiduciaries may document. be individuals Fiduciaries or banks, one may be individuals or b pp P jI? r c0\ i/^xt H qQ person, IHMÇ or several. person, Every ortestator several. must Every name an executor, testator andmust if the will name contains an any executor, trust and if the will cont I' l\v7 * *V -i 1 ./' iN ' ^o ^ provisions, provisions, a trustee. a Guardians trustee. may be Guardians nominated where may the testator be nominated leaves minor children where the testator leaves or orthose those with with disabilities, disabilities, but a court must but approve a court the nomination, must approve in additionthe to naming nomination. the In addition to initial initial fiduciaries, fiduciaries, the testator the alsotestator should namealso alternates should in casename the first alternates choice is unable inorcase the first choice i unwilling unwilling to serve. to serve. taken in naming a or guardian, ■ IB Executor Executor or or Personal Personal Representative: Representative: The The executor executor or taken in naming a guardian, since he she will actsince in placehe or she will act in place of the deceased parent. Some personal personal representative representativeisisresponsible responsiblefor for collecting collecting thethe estate estate °f the deceased parent. Some factors to consider are factors whether to consider are whethe is an appropriate age, has similar views to the assets assets and and distributing distributingthem themasasthe thewill willdirects. directs.Additional Additional the guardianthe is an guardian appropriate age, has similar views to the testatorwill onbeeducation, be with physically able to cope with t duties duties include includefiling filing thethe willwill with with the the locallocal probate probate or or testator on education, physically ablewill to cope the duties—and most important: will agree to serve beforehand surrogate surrogatecourt, court,filing filingfederal federal andand state state estate estate tax tax returns returns and and duties—and most important: will agree to serve beforehand, income tax returns, filing a final accounting, and settling I§ Bond: The law provides that unless the testator makes claims claims against againstthe theestate. estate. TheThe duties duties maymay last last fromfrom several several " Bond: The Iaw Provides that unless the testator makes a contrary provision in the will, each of the fiduciaries months months to to several severalyears, years,depending dependingononthe thecomplexity complexity of of thethe a contrary Pulsion in the wdl, each of the fiduciaries named must must file file aa bond bond and and maintain maintainthat thatbond bonduntil untilthe the estate. court releases releases them them from from responsibility. responsibility.Most Mostwills willsspecify specify i8 Trustee: who has legal title to to property ain a that Trustee:AAtrustee, trustee, who has legal title property that in fiduciaries shall fiduciaries serve without shall serve bond, without especiallybond, where esp trust, obligation of of investing or distributing trust, also alsohas hasthe the obligation investing or distributing fiduciaries are fiduciaries related orare have related close personal or have ties close with personal the it as asthe thewill will trust document directs. The trustee must it or or trust document directs. The trustee must testator. testator. periodically periodically account account for trust for assets trustand assets pay over and or pay apply over theor apply the 11 Commissions: Fiduciaries are entitled to receive certain interest interestoror profits profits earned earned or trust or trust balance balance to those tospecified. those specified. ® Commissions: Fiduciaries are entitled to receive certain and commissions commissions performing their Statutes duties. Statutes Oftentimes, Oftentimes, a trustee a trustee is given is given discretionary discretionary powers powers by thefees fees by the and for for performing their duties. specifically provide method by which such testator. testator. For For example, example, a gift a gift in trust in made trusttomade a minor to may a minor specifically may provide thethe method by which such fees and fees and commissions are be computed. computed. Generally, they direct directthe the trustee trustee to pay to pay onlyonly the income the income earned earned by the trust by the commissions trust are to to be Generally, they are set are at set a a small ofthe the value of estate, the estate, although principal principal until until thethe minor minor reaches reaches his state's his age state's of majority, age of majority, a smallpercentage percentage of value of the although family fami unlessthe the trustee believes be in the best interests of that unless trustee believes it to it be to in the best interests of that members members often often opt opt to towaive waive them, them, and most and most states provide states provide the commission received must be "reasonable" for the minor minor to to make make the the payouts payoutsdifferently. differently. that the that commission received must be "reasonable" for the amount amount of of work work involved. involved. Some testators Some testators also opt to also makeopt to make S Guardian: A guardian is the person named to take H Guardian. A guardian is the person named to take a gjft a gift under under thethe willwill in lieu in lieu of the of statutory the statutory commission, commission. custody custody ofof thethe decedent's decedent's minor minor children,children, to manage to manage IfeHI Powers: mannerinin which fiduciaries may deal property propertyfor forthe the minors, minors, or or both. both. While While it is it usually is usually best best Powers: The The manner which fiduciaries may deal to to name name one one person person as guardian as guardian of bothof the both person the and person with with the and the assets assets of theof estate the and estate trust and principal trust principal is set forthis set forth property,different different people sometimes named. Also, property, people are are sometimes named. Also, in the the "powers "powers clause" clause" of aofwill. a will. The testator The testator may give may the give the though thoughthe the person person named named to take tocustody take custody in a will in is usually a will fiduciaries fiduciaries is usuallyvery very limited limited powers powers or empower or empower them to them invest toin invest given givenserious serious consideration, consideration, there there still still mustmust be a court be a all all court kinds kindsof ofsecurities, securities, to operate to operate the testator's the testator's business, business, and an even to handle handlethe the assets in their discretion—and to hearing hearing toto finalize finalize the choice the choice and ensure and the ensure person the named person evennamed to assets in their own own discretion—and to is qualified qualified Where the decedent a surviving is to to act.act. Where the decedent leaves a leaves surviving invade invade thethe trust trust or sprinkle or sprinkle the trust the income trustamong income named among name spouse, spouse,that that spouse spouse willwill automatically automatically become become the legal the beneficiaries. beneficiaries. legal AllAll fiduciaries fiduciaries are required are required by lawby to law act in to aact in a guardian guardianunless unless there there are are issues issues of incompetency of incompetency or other "prudent or"prudent other and and reasonable" reasonable" manner, manner, however, however, and to and handle to handle theassets assets for benefit of named the named beneficiaries unusual unusualcircumstances. circumstances. It also It is also a good is aidea good to idea appoint to the appoint for thethe benefit of the beneficiaries rather rather alternates alternates if the if the firstfirst choice choice can't act.can't Extreme act.care Extreme must be care than than for must self-enrichment. for beself-enrichment. FALL 2015 43 This content downloaded from 65.88.89.49 on Mon, 04 Apr 2022 22:49:19 UTC All use subject to https://about.jstor.org/terms DFCT ARATORY DECLARATORY In In addition addition to toproviding providingdirections directions for for how how property property should should be be EXPLANATOI & EXPLANATORY EXPLANATORY distributed distributed and and how how debts debts andand taxes taxes should should be paid, be paid, somesow contain additional directions. S ION S contain additional directions. PROVISIONS H Business A will may include declarator S I! Explanatory Explanatory Provisions: Provisions: Such Such provisions provisionsare areintended intended to toContinuation: H Business Continuation: A will may inclu and instructional advice to the fiduciary avoid avoid attempts attempts to to contest contestwills. wills.Examples Examplesinclude include suggestions suggestions and instructional advice to theregarding fiduciary rega continuing or winding up a testator's business carryin to trustees trustees about about when when and and how how the thetrust trustprincipal principalmay maybe becontinuing or winding up a testator's or business o out a buy-sell The testator alsomay recomm invaded, invaded, or or explanations explanationsfor forwhy whya aparticular particular person—such person—such out aagreement. buy-sell agreement. The may testator also that that the executor consult with certain people concerning as as aa sibling siblingor orchild—was child—was omitted omitted from from thethe will. will. the executor consult with certain people con the the sale sale of of aabusiness businessinterest interest oror employ employ certain certain people people to t continue thecontinue business. the business. Survivorship clause: Clause:The Thelaws lawsofofmany many states specify H Survivorship states specify that and beneficiary die at time, time, or that if ifaatestator testator and beneficiary diethe at same the same or — , L • • • Li i ■ 1 S Non-hypothecation: H This refers to will This provisions that Non-hypothecation: refers to will provisions th under circumstances circumstances where where it it is is impossible impossibleto toascertain ascertainwhich which . . r . . r ... .. r . -11 i 1 -ii i i i restrict beneficiaries from selling, assigning, or pledging their restrict beneficiaries from selling, assigning, or pledging of survived the the other, the testator will be deemed todeemed to . . ... . ° r r. or them them survived other, the testator will be interests in the The clause serves as a form of insuran . interests in the will. I he clause serves as will. a rorm or insurance havesurvived survived other person. Alternatively, have thethe other person. Alternatively, a will maya will may , , , r . , ,. r , thatnot the squander beneficiaryor will not squander r f # that the benehciary will dispose or theor dispose of the provide that a beneficiarv does not survive the testator , -c l r ... ., c provide that if aifbeneficiary does not survive the testator r J testator s girt before receiving testator's it, or in gift the before case receiving or a trust, it, or in will the case of a trust, for a specific period, then the bequest will pass to another for a specific period, then the bequest not discount will her interest pass to in the another trust principal nQt in hgr advanc i person organization. person oror organization. ■ ■ In InTerrorem Terrorem clause: clause: This provision, This provision, more simply more cal 8 Tax Apportionment: To preserve specific gifts, and togifts, B Tax Apportionment. To preserve specific a "no-contest clause," and is to useda in "no-contest situations where clause," the test avoid the marital and charitable deductions, some avoidreducing reducing the marital and charitable may reasonably deductions, expect some a beneficiary may reasonably to contest the expect will. wills thatthat estateestate taxes will not be allocated against willsspecify specify taxes will notprovision be allocated provides against that any provision person whoprovides asserts anythat othe them. ToTo thethe same effect, administration expenses may be them. same effect, administration claim expenses against the will, mayorbe contests claimit, against shall forfeit the all will, prop allocated allocated amongamong the variousthe assets. various and interest the interest will might have bestowed him or her assets. and the willon might h MISCELLANEOUS MISCELLANEOUS Certain Certain wordswords of art are of frequently art are frequently used in connection used in w DEFINITIONS DEFINITIONS wills. wills. Several Several of the of most the common most are common definedare briefly defin be 11 11Attestation: Attestation: The clause The in clause which in thewhich witnesses B the Devise: signify witnesses A gift of real signify property. SB Devise: A gift of they theyhave have seen seen the the testator testator sign the sign will.the Anywill. person Any whoperson who Iact Intestacy: the act situation a person is isnamed named to take to take property property in the willin should the not will should as a Defines not as in a which ® Intestacy. Define witness. witness. dies without making a will,dies orwithout makes making a will a will, or that makescannot a will that cannot be be probated. probated. TheThe assetsassets of suchof person such would person be distributed would be distribut S A gift of personal property. ®Bequest: Bequest: A gift of personal property. according according to the lawsto of "intestate the laws succession" of "intestate in the state success _ where he or shewhere lives. he or she lives. B■ Codicil: Codicil: An amendment to An a will. A codicil amendment must be to a will. A executed in the same mannerin as the original will, and upon executed the Hsame Issue: A person's child manner or children. Under most state as th the death of a testator, the original will and all codicils are children are included the death of a testator, laws, adopted the in the original definition of probated must be be proved. probatedtogether; together;each each must proved. "child "child." " 81 Corpus: Corpus: Synonymous Synonymous with toto The with "principal" "principal" when whenreferring ■ referring Marital Right: g Marjta| surviving Right; spouse of The a decedent surviving is stat spouse of a trust. utorily utorily entitled entitled to a to specific a specific share of share a decedent's of a decedent's estate, the estate, the amount depending upon the other survivors of the decedent. H ■ Crummey CrummeyPower: Power: AA power power held held by by a beneficiary a beneficiary of a of a amount dePendlng uPon the °ther survlvol' • ii 1 c , ■ • i r If the testator does not make sufficient provisions in the in will If the testator does not make sufficient provisions the will trust trusttoto withdraw withdraw a representative a representative share from snare the principal from the of principal of r or the nonprobate assets received by the surviving spouse are a a trust. trust.This This enables enables the the grantor grantor or settlor or settlor of the trust of the to trust take to take or the n°nprobate assets received less than the minimum amount prescribed by statute, then a a corresponding corresponding amount amount of the of gift the gift tax annual tax annual exclusion. exclusion. Iess than the mlmmum amount Presc he heoror sheshe maymay opt toopt make to anmake "election anagainst "election the will" against and the w B Descendant: The term describes the issue of a be deceased Hi Descendant: The term describes the issue ofentitled a deceased to the minimum be entitled statutory to amount the minimum instead of thestatutory specified in theamount will. person; person; it it does does not not applyapply to children to children of a living ofparent. aamount living parent. specified in the will. 44 FAMILY ADVOCATE www.shopaba.org/familyadvocate This content downloaded from 65.88.89.49 on Mon, 04 Apr 2022 22:49:19 UTC All use subject to https://about.jstor.org/terms terminate themeaning bequest unless a will specifies to the contrary. ■ÄPer Per Capita: Capita: A systemA distribution system among distribution heirs meaning terminate among theheirs bequest unless a will specifies to the contrary, "by "by right right of number." of number." For example, assume For aexample, testator made assume a testator made H Testamentary: Arising fromtoor relating to a will. aagift gift of $100,000 of $100,000 to two children, to two a daughter children, and son, per a daughter ® Testamentary. and Arising son, from per or relating a will. For example, allhad trusts under created will are called capita. capita. AlsoAlso assumeassume that during that his lifetime, during thehis son had lifetime, ^or example> the all son trusts created theunder will arethe called "testamentary trusts" as differentiated from four four children children of his own ofand his theown daughter and had the one child, daughter "testamentary hadtrusts" one aschild, differentiated from other types of other types of trusts that may be created lifetime, fa and and both both the son the andson daughter andpredeceased daughter the predeceased testator. trusts that the may testator. be created during a during lifetime,a fa Under Under the per the capita per system, capita each of system, the five grandchildren each of the five grandchildren would would receive receive $20,000—that $20,000—that is, $100,000 divided is, by $100,000 5. divided by 5. LYNNE S. HILOWITZ, ESQ., of DaSilva S Per Stirpes: A system of distribution among heirs, & Hilowitz beenpracticing practicing lawlaw B Per Stirpes: A system of distribution among heirs, ||flBj&j| & Hi|0witz LLP,LLP, hashas been in New since York since 1981 and is meaning meaning "by "by right right of representation." of representation." In the "per Incapita" the "per in New capita" York 1981 and isadmitted admitted example above, the son's four children example above, the son's four children would eachwould receive each to thereceive New to the York, New New York, Jersey, New Jersey, and and Florida Florida bars. Her focus is estate planning and $12,500 and the daughter's child would be entitled to $12,500 and the daughter's child would be entitled to H^Bflj^Bjji bars. Her focus is estate planning and $50,000. $50,000. estate taxation, probate, estate and taxation, litigation probate, and litigation of trusts and estates. She is chair of the Rockland Rockland County Bar Association's l> IS Sibling: Sibling:Brothers Brothers and and sisters sisters descended descended fromfrom the same the the same County Bar Association's Surrogate's Court and Estate Planning Committee, a parent. parent.Half-brothers Half-brothers and and half-sisters half-sisters of a testator of a testator are Surrogate's are Court and Estate Planning Committee, a board member of theof Estate Planning Council of Rockland entitled entitled to share to share in a testamentary in a testamentary gift to be divided gift to among be divided board member among the Estate Planning Council of Rockland County, co-chair of the General Practice Section "brothers" brothers and sisters. and "sisters." County, Inc., and co-chair ofInc., theand General Practice Section CCI 1 >5 1 cc • » of the New York State Bar Association's Trusts and Estates Law Committee. H 11Spouse: Spouse: A A gift gift made made to a to spouse a spouse is, byis, definition, by definition, a a Law Committee. gift to to one one who who occupies occupies that thatrelationship. relationship.Divorce Divorcewill will Booksarticle/reviewing-estate-plansSharpe, Deanna L., & Dana L., Lee & Dana Lee Books article/reviewing-estate-plans Sharpe, Deanna connection-divorce. Baker, Financial Issues Associated with & & More: More:connection-divorce. Baker, Financial Issues Associated with ATrusts TfULStS A a Child with Autism, 28 J. Having a Child withHaving Autism, 28 J. Special Special needs needs trusttrust Bibliography Bibliography Churchill, Churchill,Martha Martha A., A., & Patricia & Patricia E. E. Kefalas KefalasDudek, Dudek, Adults Adults withwith Fam. Fam. Econ. Econ. Issues Issues 247 (2007). 247 (2007). Support Equitable Equitable distribution distribution and trusts and trusts Trust Income or Assets as Subject Disabilities: Disabilities:Prepare Prepare forfor thethe Future Future withwith Trust Income or Assets as Subject to to Claim Against Beneficiary for Alimony, Special Needs Trust, (10) Claim 79 Mich. Pennell, Pennell,Jeffrey Jeffrey N„ N., Third Third PartyParty a Speciala Needs Trust, (10) 79 MlCH. Against Beneficiary for Alimony, Maintenance, or Child Support, BarBar J. J. 1360 (2000). Trusts Trusts and and Divorce: Divorce: Is Is aa Beneficiary's Beneficiary's 1360 (2000). Maintenance, or Child Support, 91 A.L.R.2d 262 (1963) ("The Interest Interest Marital Marital Property?, Property?, 2013/ 2013/ Field, Jennifer, Special Needs Trusts: interest of a beneficiary in a true 2014 2014South South Palm Palm BeachBeach CountyCounty Field, Jennifer, Special Needs Trusts: interest of a beneficiary in a true Providing Disabled Children Providingfor for Disabled Children discretionary discretionary trust trust is not is subject not subject to to Estate and Tax Roundtable series. without Public Benefits, withoutSacrificing Sacrificing Public Benefits, claims claimsfor for alimony, alimony, maintenance, maintenance, or or 24 L. L. 79 79 (2003/2004). 24 J. J.Juv. Juv. (2003/2004). childchild support support where where neither neither the wife the wife Estate planning nor northe thechild child of of thethe beneficiary beneficiary is a is a Price, Margaret, The Special Needs Forbes, Landers, CanCan a Trust Forbes,Jeff Jeff Landers, a Trust Price, Margaret, The Special Needs beneficiary beneficiary oftrust."). the trust."). of the Child and Divorce: A Practical Protect ProtectMy My Assets Assets in Divorce? in Divorce? at at CHILD AND DIVORCE. A PRACTICAL http://www.fo http://www.fo rbes.com/sites/ rbes.com/sites/ Guide to Evaluating and Valuing Valuing trusts interests trusts interests Handling Cases (2009). Cases (2009). jefflanders/2012/07/18/can-a-trust jefflanders/2012/07/18/can-a-trustHandling Chorney, Chorney, Marc, Interests in Marc, Trusts as Interests in protect-my-assets-in-divorce/. c , rA u t lj -j protect-my-assets-in-divorce/. r ' Saposnek, Donald Saposnek, 1., Donald Heidi T., Heidi Property Property in Dissolution ofin Marriage: Dissolution of Josanna Berkow Estate & Sherrill Crain, Joan K., Reviewing Estate Crain, Joan K., Perryman, Reviewing Identification Perryman, and Valuation, 40 RealJosanna Be Plans in Connection with Divorce, Ellsworth, Special Needs Children in Plans in Connection with Divorce, Prop. Prob. Ellsworth, & Tr. J. 1, at *22-23 Special Ne SRR J.: Global Financial Advisory the Family Court, 43 Fam. Ct. Rev. SRR J.: Global Financial Advisory (2005). 566 (2005). Services, Services, at http://www.srr.com/ at http://www.srr.com/ Cover 2 Index to Advertisers Index to Advertisers c°yer2r As a service to our readers ms a service to our reaaers ana the Family Court, 566 (2005). Page 5 Citizens Commissionfor for Human Rights MatLaw Systems Citizens Commission Human Rights MatLaw Systems Corp. Corp. 1-800-416-8477 I www.matlaw.com andzvww.cchr.org/freedvd www.cchr.org/freedvd 1-800-416-8477 | www.matlaw.com . . . u . . £f9f5 c advertisers, advertisers, we are listing we the are listing the Page 3 advertisers advertisers and the and pagethe number page on Page number on which their ad appears, a which their ad appears, along with a along Sequence Sequencewith Inc. Inc. contact telephone number. contact and and telephone number. 312-498-3661 312-498-3661 | www.sequenceinc.com | www.sequenceinc.com FALL 2015 45 This content downloaded from 65.88.89.49 on Mon, 04 Apr 2022 22:49:19 UTC All use subject to https://about.jstor.org/terms