A Sketch of the Law Behind Wills & Estates
Wills & Estates, Fall 2012, BYU Law, Prof. Robert (Rust) S. Tippett
Contents
I. DISPOSITION OF PROPERTY ON DEATH ................................................................................ 5
A.
Joint Tenancy ..................................................................................................................................... 5
B.
Beneficiary Designation.................................................................................................................... 5
C.
Revocable Trust ................................................................................................................................. 5
D.
Will ...................................................................................................................................................... 5
E.
Intestacy .............................................................................................................................................. 6
F. Personal Representatives ...................................................................................................................... 6
II.
Probate ....................................................................................................................................................... 6
A.
Procedure ........................................................................................................................................... 6
B.
Avoiding Probate .............................................................................................................................. 7
III.
Trusts....................................................................................................................................................... 7
IV.
Assorted Vocabulary ............................................................................................................................. 8
V.
Power of Spouse to Dispose of Property ............................................................................................. 9
VI.
Attorney Representation Issues .........................................................................................................10
A.
Conflict .............................................................................................................................................10
B.
Multiple Representation .................................................................................................................10
C.
Attorney for Fiduciary ....................................................................................................................10
D.
Attorney for Testator ......................................................................................................................10
E.
Questions Always to Ask ...............................................................................................................10
VII.
Incapacity ..............................................................................................................................................10
VIII.
IX.
A.
Powers of Appointment .................................................................................................................11
Taxes .....................................................................................................................................................11
Estate Tax .........................................................................................................................................11
1. Deductions .......................................................................................................................................11
B.
Gift Tax ............................................................................................................................................12
1. Non-taxable......................................................................................................................................12
C.
Tax Returns ......................................................................................................................................12
Page 1 of 41
X.
Some Examples and Charts...................................................................................................................12
XI.
Distribution Methods .........................................................................................................................14
A.
Per Stirpes (slurpees) aka Right of Representation ....................................................................14
B.
Equal Share Method .......................................................................................................................14
C.
Per Capita at Each Generation......................................................................................................14
D.
Pure Per Capita ................................................................................................................................14
E.
Disinheritance ..................................................................................................................................14
XII.
Intestacy ................................................................................................................................................14
A.
Property Subject to Intestacy.........................................................................................................15
1. Utah ...................................................................................................................................................15
2. California ..........................................................................................................................................15
B.
Surviving Spouse’s Share ................................................................................................................15
C.
Everyone Else ..................................................................................................................................16
D.
HOTCHPOT...................................................................................................................................17
E.
Sample Problems .............................................................................................................................17
F. Familial Relationships .........................................................................................................................17
G.
Wrongful Death Statutes ................................................................................................................18
H.
Simultaneous Death or Death Between Decedent’s Death and Distribution........................18
XIII.
Life Time Advances ........................................................................................................................19
XIV.
Validity of Wills ...............................................................................................................................19
A.
Testamentary Capacity....................................................................................................................19
1. Testamentary Capacity per Common Law ..................................................................................19
2. California Approach .......................................................................................................................20
3. Evidence and Preplanning Considerations ..................................................................................20
B.
Undue Influence ..............................................................................................................................20
1. Burden of Proof Shift .....................................................................................................................20
2. Evidence and Steps to Take to Prevent .......................................................................................21
3. California ..........................................................................................................................................21
4. Professional Responsibility ............................................................................................................22
XV.
A.
Contesting a Will .................................................................................................................................22
No Contest Clause (NCC) .............................................................................................................22
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B.
Enforceability of NCCs ..................................................................................................................22
XVI.
Formalities of Execution ................................................................................................................23
A.
Wills Must Have Two Witnesses ..................................................................................................23
1. Self-Proving Will .............................................................................................................................24
B.
Holographic Will .............................................................................................................................24
C.
Codicil ...............................................................................................................................................24
D.
Substantial Compliance ..................................................................................................................24
E.
Signing Will in One State, Dying in Another ..............................................................................24
F. Incorporation by Reference ...............................................................................................................24
G.
Acts of Independent Significance .................................................................................................24
H.
Contract to Make a Will .................................................................................................................25
XVII.
Revocation of Wills .........................................................................................................................25
A.
Dependent Relative Revocation (Rare Common Law) .............................................................25
XVIII.
Will Revival ......................................................................................................................................25
XIX.
Codicil Has Effect of Republishing Will .....................................................................................27
XX.
Extrinsic Evidence ..............................................................................................................................28
A.
Policy .................................................................................................................................................28
1. When Should Extrinsic Evidence Be Let In? .............................................................................28
2. When Should Extrinsic Evidence Be Excluded?........................................................................28
B.
The Common Law Answer: ..........................................................................................................29
1. Problems with PMR........................................................................................................................29
C.
California ..........................................................................................................................................29
D.
Utah ...................................................................................................................................................29
XXI.
Rules of Construction .....................................................................................................................29
A.
Types of Bequests ...........................................................................................................................29
B.
Suppose the Specific Gift/Property is Not in the Estate..........................................................30
1. Calif 21133-21134: ..........................................................................................................................30
2. Utah 2-606 ........................................................................................................................................30
C.
Transformation of Specific Property............................................................................................30
D.
Exoneration of Mortgage ...............................................................................................................31
E.
Abatement of Pecuniary Gifts .......................................................................................................31
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F. Ademption of Pecuniary Gifts by Satisfaction................................................................................31
G.
Demonstrative Bequests (this isn't super well developed or consistent across the states) ...31
H.
Residuary Bequests..........................................................................................................................31
I.
Beneficiary Predeceases Testator ......................................................................................................31
J.
Anti-Lapse Statutes .............................................................................................................................32
1. Utah's Anti-Lapse ............................................................................................................................32
2. California Antilapse.........................................................................................................................32
K.
Situations ..........................................................................................................................................33
XXII.
Omitted Spouse or Child ...............................................................................................................33
A.
Spouse ...............................................................................................................................................33
1. Cal 21610-21612 ..............................................................................................................................33
2. Utah—2-301 ....................................................................................................................................34
B.
Child ..................................................................................................................................................34
1. Cal 21620-21623 ..............................................................................................................................34
2. Utah 2-302 ........................................................................................................................................34
XXIII.
Divorce .............................................................................................................................................35
A.
California ..........................................................................................................................................35
B.
Utah 2-804 ........................................................................................................................................35
XXIV.
Homicide ..........................................................................................................................................35
A.
Cal 250 ..............................................................................................................................................35
B.
Utah 2-803 ........................................................................................................................................35
XXV.
Disclaimers .......................................................................................................................................35
XXVI.
Surviving Spouse’s Elective Share ................................................................................................35
XXVII.
Family Protection ........................................................................................................................36
XXVIII.
California Probate .......................................................................................................................36
A.
Petition for Probate ........................................................................................................................36
B.
Preliminary Management Responsibilities ...................................................................................37
C.
On-Going Management Responsibilities.....................................................................................37
D.
What if a Revocable Trust? ............................................................................................................37
E.
Independent Administration of Estates Act ...............................................................................37
XXIX.
Utah Probate ....................................................................................................................................38
Page 4 of 41
XXX.
Distribution ......................................................................................................................................38
XXXI. Ancillary Probate .............................................................................................................................38
XXXII.
Special Administration ...............................................................................................................38
XXXIII.
Guardian Ad Litem .....................................................................................................................39
XXXIV.
Fiduciary Duties ..........................................................................................................................39
XXXV.
Estate Tax.....................................................................................................................................39
XXXVI.
Gift Tax ........................................................................................................................................40
A.
Annual Exclusion Gifting ..............................................................................................................40
B.
2012 Opportunity ............................................................................................................................40
XXXVII.
Fractional Interest Discounts ................................................................................................40
XXXVIII.
Generation Skipping Transfer Tax (GST) ..........................................................................40
XXXIX.
A.
Credit Shelter Trusts aka By-Pass Trusts .................................................................................41
Q-TIP Marital Trust .......................................................................................................................41
XL.
Life Insurance Trust ............................................................................................................................41
I.
DISPOSITION OF PROPERTY ON DEATH
Upon death, use the following questions in order to determine where things are to go.
A.
Joint Tenancy
Was the property held in joint tenancy? If so, there is a right of survivorship. The
surviving joint tenant automatically owns the property. If that is the case, there are
no more questions. This can be bank accounts, brokerage and mutual fund accounts,
and real estate. To claim, the survivor files a death certificate. NO PROBATE
B.
Beneficiary Designation
If there is a designation, the property passes to that person. These can be found on
retirement plans, in life insurance policies, bank account, brokerage account. These
are called payable on death accounts (POD). NO PROBATE
C.
Revocable Trust
Was the asset held in a revocable trust? If so, the trust controls. If not held in
revocable trust, you look toward the will. Textbook: This isn't a testamentary trust-this is an inter vivos trust. NO PROBATE
D.
Will
If there is a will, then you follow the will. PROBATE There is probate even if it is a
pour over will to the revocable trust. A will is made by a testator/testatrix. The assets
are the estate. Personal representative is the fiduciary for the estate, aka the executor.
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If no executor specified, you have Admin CTS (with will attached). Executor
marshals assets, takes possession, makes inventory, pays creditors, provides info to
beneficiaries, makes accountings, cares for property, files tax returns. The devisees
are the beneficiaries.
II.
E.
Intestacy
If no will, then that means the individual had died intestate. Basically, the rules of the
probate code will decree how the property is to be distributed. PROBATE. Intestacy
governs anything not covered by a will or beneficiary designation. The personal
representative is an Administrator, appointed by court after petition, due notice, etc.
Beneficiaries are heirs, not devisees and vice versa. Intestacy occurs when there is no
will or estate planning, where there is partial intestacy—aka no residuary clause, or
where the will gets thrown out
F.
Personal Representatives
 Inventory the estate
 Give notice to beneficiaries (UPC)
 Give notice to creditors (UPC)
 Pay taxes
 Make accountings: trustee should give accounting to beneficiaries on at least
a yearly basis. This applies to trusts, too. Start with beginning balance, list
income, list disbursements/expenses, and list distributions to beneficiaries,
then list the ending balance.
 Sell/Liquidate Assets
 Distribute to beneficiaries
Probate
Purpose of probate is to get property in right hands, with clean title, and protect creditors.
Property with joint tenancy or beneficiary designation or held in revocable trust doesn’t need
probate. You can record the probate order with the recorder just like a deed. An exception is
universal succession, popular in Louisiana.
A.
Procedure
 Opening probate: Personal representative gets letters of testamentary or
letters of administration. If things are contentious, things get more formal.
 Formal v. Informal
o Formal: Everything litigated with final judgment and trips to the
courthouse.
o Informal: Representative does nothing in the court after getting
appointed and ultimately swears that the estate was taken care of.
Rubberstamping galore, until somebody starts making objections.
 Barring creditors: Some non-claim statutes bar creditors within time after
probate starts or within years of death. Known creditors have more rights.
Page 6 of 41

B.
III.
Closing the estate: The court grants discharge to relieve personal rep of
liability.
Avoiding Probate
 Probate is length, about a year. It can be inconvenient with multiple trips to
the courthouse. It can be expensive with filing fees and help of a lawyer. It
gets nasty if you have to do ancillary probate on property outside of a state.
This is especially true in California. Probate is also public—everybody can
see everything that passes. Utah is more streamlined because of the UPC, but
a contender can cause issues.
 Methods to avoid probate:
o Joint tenancy: Works, but can’t pass that to heirs, and creditors will
be incentivized to come after you earlier. It also surrenders control of
property.
o Beneficiary designations
o Estate less than or equal to $100k in California, as long as no real
estate involved. To get property, you walk into bank with affidavit.
o Revocable trusts
Trusts
Created by a settlor, trustor, grantor, administrated by a trustee/fiduciary, benefits
beneficiaries, governed by a trust instrument. Always remember who the fiduciary is and
what document governs. If you’re doing business with a trust, you need to make sure there is
authority. Probate code governs in silence. The fiduciaries are the ones who hold legal title
of trust property.
Why Create?
Revocable
(Declares
who gets
what when
you die--a
will
substitute-the
dispositive
provisions
of your
estate.)
When
Create?
Avoid probate. Lifetime
Avoid
conservatorshi
p.
DOES NOT
avoid income
tax. The trust is
merely your
alter ego. The
government
does not really
see any
difference
between you
and your
Funding
Trustee
Beneficial
Interests
Real Estate,
Bank
Accounts,
Brokerage
Accounts,
Partnership
Interests,
General
Assignment
(used to
dump
everything
into the
revocable
trust), but
Settlor
Settlor (as
Death
long as the
settlor is
alive.) Then
after he
dies, other
beneficiarie
s
Page 7 of 41
Termination
revocable trust.
It does not
avoid estate
tax--not
anymore than a
will, anyway.
Does not
provide asset
protection.
Irrevocabl It cannot be
e
revoked by the
settlor. Perhaps
you are making
a gift to
somebody, but
when you do
not want them
to receive that
gift all at once.
There are also
tax reasons.
There are asset
protection
reasons. Settlor
should not be
trustee or
beneficiary.
IV.
not Retirement
Plans. With
general
assignment,
you want to
transfer land
to the trust
before the
will because
it will be
bad trying to
transfer title
to trust
later.
Can create
during life or
upon your
death. Inter
Vivos or
Testamentar
y
SAME, but
no general
assignment
.
Corporate Beneficiarie Whenever the
s
terms of the trust
or
dictate. Some are
Individual
perpetual/dynast
serving as
y trusts.
trustee.
Corporate
is
expensive,
but
individual
s can be
idiots.
Assorted Vocabulary
 Codicil: Amendment to a will
 Community Property with Right of Survivorship CPWRS: Community
property passes to surviving spouse
 Principal: lump sum you begin with, the trust estate or the corpus res
 Income: Dividends generated from stocks and bonds
 Income Beneficiary: Guy who gets paid money from trust
 Remainder Beneficiary: Guy who gets trust after a death
 Trustee gets about 1% of trust’s assets each year.
 Mandatory distribution: Trustee must pay out
Page 8 of 41


V.
Discretionary distribution: Trustee can pay if he feels like it
Pour over will: Stuff held in testator’s name goes through probate and then to
revocable trust. A will with one basic provision.
Power of Spouse to Dispose of Property
Which spouse has power to dispose of what property? A deceased spouse can dispose
of one half of community property and all of their own property. If it is a common law
state, you look to title.
Community Property
State (like California)
Separate Property: Anything
the spouse brought to the
marriage. Anything the
spouse receives as gift or
inheritance during the
marriage. Income and
appreciation on separate
property is also separate
property.
Community Property:
Anything that is earned by
either spouse during the
marriage. Also income or
appreciation on community
property is community
property.
Common Law State,
like Utah:
Separate Property: Same as Marital Property: Same as a
a community property state. community property state.
Distinction not relevant on
death. You look to title. This
is only relevant on divorce.
On Divorce, each
spouse keeps all SP,
but they split CP
50/50.
On Death: Surviving
spouse keeps SP,
keeps 1/2 CP. The
decedent has right to
dispose of SP and 1/2
of CP. Look to Will,
Revocable Trust,
Intestacy.
On Death, follow
title. If everything is in
husband's name and
he dies, he can
dispose of that
property. Suppose
you have Bob &
Mary. If joint tenants,
then survivor gets it.
If deed says "Bob and
Mary," then
presumption is in
common. If marriage
mentioned on deed,
then right of
survivorship assumed.
On Divorce, there is
separate property and
then with marital
property equitable
distribution.
Also check for states that have enacted UDCPRDA. If state has this, look to community
property that vested while the couple was in another state. Utah has adopted this, so basically
community property is honored. Also note that California has registered domestic partners.
Page 9 of 41
VI.
Attorney Representation Issues
A.
Conflict
An actual conflict is where it is impossible to effectively represent both clients.
AKA, they’re suing each other. A potential conflict is where you can still
effectively represent them both, but still need to get a waiver.
B.
Multiple Representation
When you represent two people on the same matter, you can have joint
representation where there is no confidentiality between people or separate
representation where you do have a duty of confidentiality.
C.
Attorney for Fiduciary
You do not represent the beneficiaries. You can't be telling the beneficiaries
without figuring out what fiduciary wants to reveal. Mere fact that you
represent fiduciary does not mean you represent beneficiary. Representing both
the fiduciary and the beneficiary can be potential conflict, but not necessarily
actual conflict. It could be possible for the fiduciary to need 2 lawyers if he
wants to have a conflict as beneficiary with the trust. Or perhaps if your
fiduciary gets sued as a bad person, there should be another attorney.
It is possible to represent both fiduciary and beneficiary, but you would have to
get a waiver in writing because it is a potential conflict.
VII.
D.
Attorney for Testator
Duty owed to beneficiaries and liability can be incurred.
E.
Questions Always to Ask
Who do you represent? In what capacity? To whom do you owe a duty of care
and a duty of confidentiality?
Incapacity
1. Revocable Trust will facilitate things when you become incapacitated. This avoid a
conservatorship the same way you avoid a probate. If all your assets are in the
revocable trust when you become incapacitated, and there is a successor trustee, then
things move right on down the road. No court management, at least for your
property.
2. Power of Attorney: It kind of can work as well as a revocable trust. Any owned
assets are subject to power of attorney. Banks and financial institutions are not
impressed, though. Does not avoid probate. Typically, you should have both power
of attorney and revocable trust so that the assets you didn't put in the trust can be
placed there before you die.
3. Conservatorship--lifetime probate: You want to avoid this. This can lead to civil
rights issues. Before a conservatorship can be put in place, a physician has to sign on
the dotted line. The court might send out a court investigator to interview the
Page 10 of 41
prospective conservatee. The court might appoint a PVP attorney. Probate
Volunteer Panel attorney. This attorney will make sure that the conservatee's legal
rights are being protected.
VIII.
Powers of Appointment
The reason for this is to build flexibility into an estate plan. You don't know what
happening when you are creating an irrevocable trust.
Grandma creates an irrevocable trust and makes Daughter the income beneficiary. The
trust says that when daughter dies, the children will inherit the three shares of the
principal. But then, Grandma wonders what will happen with her grandchildren. So
then she gives daughter-beneficiary a power of appointment which gives daughter the
power to rearrange the terms of the trust, even cutting out or whatever.
Power of appointment could be super broad or particularly narrow, liberal or
restrictive based on what grandma wanted. Power of appointment holder has no
fiduciary duties.
Grandma = creator of power of appointment, or donor
Holder = Daughter = ability to exercise power of appointment, or donee
Takers in Default = the grandchildren in equal shares where the power of appointment
has not been exercised.
If power of appointment is exercised, then you get the permissible appointees.
General (if any of the following are permissible appointees, then the power of
appointment is general) (not good):
1. Holder
2. Holder's creditors
3. Holder's estate
4. Creditors of his estate.
It is Limited for all else. (Limited is good).
If it is a general power of appointment, the assets of the trust are merged in with the
daughter's estate, subject to taxes, etc.
IX.
Taxes
A.
Estate Tax
Everything you own is taxed. If you can take it to Wendover, it is taxed. This
includes revocable trusts, beneficiary designations, joint tenancy, etc. If you
have general power of appointment, that is taxed as well. Lifetime gifts are not
taxed as part of estate. You are not taxed on stuff for which you are trustee.
You are not taxed for limited power of appointment.
1.
Deductions
You get an unlimited deduction for property left to spouse. You get $5
million exemption until 2013, then $1 million on charity.
Page 11 of 41
B.
Gift Tax
Every gift is taxable except those noted below. You file Form 709 yearly and
that keeps track of gifts you have made and then those gifts deduct against
your estate tax deduction. If your client is rich, help them get money out of
there estate. If you want to make the gift but actually lock it up in a trust, you
have to issue a Crummey Letter noting a small amount of time that the gift is
available to the done before it gets locked. Also, with a 529 plan, you can frontload the gift limit for five years and forego giving gifts until the 5-years is up.
1.
C.
X.
Non-taxable
 $13k per done per year
 Somebody’s medical bills
 Education expenses for somebody—if provider paid directly
 Spouse and charity
Tax Returns
 Estate Tax Returns: Form 706. Only filed if estate is more than 5
million/1million
 Decedent’s final income—Form 1040
 Fiduciary Income Tax Return—Form 1041: An estate is a separate taxpaying entity. Further, 1041 applies to irrevocable trusts filed by
fiduciary.
 Form 709 is taxable gift return report
Some Examples and Charts
Person
Age 50
Age 70 AKA dies
Result
Ann
Revocable trust & pour
over will. The revocable
trust creates an
irrevocable,
testamentary trust for
her daughter.
Dies, trust was fully
funded
No probate. When she dies, whoever
is successor trustee steps in and
begins managing those assets
according to the terms of the trust.
Beth
Same
House is not in her
revocable trust.
No probate for anything except the
house which is probated hard core.
Because there is a pour over will, after
probate, the house goes into the
revocable trust.
Carol
Same, but not pour over House not in revocable
will
trust.
House has to go through probate. If
no will, then it will have to go to
Carol's intestate heirs.
Denise
Same but retirement
That's where the retirement plan goes
Page 12 of 41
plan to sister.
because of the beneficiary designation
on the plan.
Elaine
No estate planning
Dies
Everything through probate, intestate
heirs
Fran
Will--outright to
Neighbor
Dies
Everything Fran has must go through
probate and then goes to her
neighbor.
Georgette
Will creates
testamentary trust for
her nephew.
Dies
Everything through probate and then
the trust for nephew is created.
Helen
Will House to Niece, no Dies
residuary clause
Probate . . . Niece gets house.
Intestate heirs get the residuary.
Isabel
Revocable Trust & Pour
Over Will into a
testamentary trust for
her husband.
No probate if it was fully funded. The
successor trustee creates a
testamentary trust for husband that
leaves everything.
Julie
Will--all to husband
outright
There will be probate, and then
everything to her husband.
Entity
Creator
Fiduciary (holds legal title to
the property, except maybe
for power of attorney?) This
is the person who has to sign
off when you're doing a deal.
Beneficial Interest
Estate
Testator/Decedent
Personal Representative
Devisees (for will), or
heirs for an intestate
situation.
Revocable Trust
Settlor
Trustee, usually the settlor if
he/she is alive/competent
Settlor holds
beneficiary interest as
long as the trust is
revocable.
Irrevocable
Trust
Settlor
Trustee
Somebody not the
settlor--beneficiaries.
Conservatorship
Conservatee at least so far as it
was his/her assets, but it could
be the court because the court
forces it.
Conservator
Conservatee
Agency (Power
of Attorney)
Principal
Agent
Principal
UTMA
Donor
Custodian
Child (and then gets it
Page 13 of 41
Custodianship
(Uniform
Transference to
Minors Act)
all at age of majority.)
Always remember who you represent. There is also a difference between attorney of fiduciary
and attorney for person who is fiduciary and is getting sued bad.
XI.
XII.
Distribution Methods
It is wise to use diagrams when you have lots of beneficiaries and the will/intestacy
statute merely states a distribution method. If the will gives specific amounts to
specific people, then you aren’t really going to be using a distribution method.
A.
Per Stirpes (slurpees) aka Right of Representation
Each child gets a share and their descendants can split that share if the child is
a dead person. If the child is living, the child’s children get nothing. This is the
common law. This method is to be used if the will or trust directs it. Utah
75.2.709. California Probate 246.
B.
Equal Share Method
This equalizes shares among grandchildren if all children are dead. Otherwise,
it is per stirpes so long as a child is alive. This is the default method of
California for both intestacy and vague wills. Cal Probate 240/245.
C.
Per Capita at Each Generation
Person gets their fair share among the living of each generation. A single living
child of 3 gets 1/3, then they split up according to how many living
grandchildren (except for grandchildren of the child who inherited). This is the
default of Utah, 75.2.103, 106. It is to be used in intestacy and silent wills.
75.2.208 and if the governing instrument declares. 75.2.209, 247.
D.
Pure Per Capita
Rare. Each head gets a share.
E.
Disinheritance
Must devise away entire estate. You can make a negative will.
Intestacy
This happens when there is no revocable trust, no joint tenancy, no beneficiary
designation, and no will as applying to each and every item of the estate. Partial
intestacy is possible, particularly with a lack of a residual clause in the will or failure to
Page 14 of 41
have a pour over will. Or, if the will becomes invalidated through testamentary
incapacity, undue influence, or not being signed properly.
Figure out what property is subject to intestacy. Then, figure out what surviving
spouse gets. Then figure out what everyone else gets.
A.
Property Subject to Intestacy
1.
Utah
If person has title, it is subject to estate.



2.
B.
Bob & Mary on deed = tenants in common, 50%
Bob & Mary, joint tenants= right of survivorship to other
spouse
Bob & Mary, husband & wife = joint tenancy assumed
California
½ of community property and all of separate property
Surviving Spouse’s Share
Utah
California (don't worry about nonprobate transfer adjustments)
2-102
6401(a): Surviving spouse walks
with all of the community
property. Also note that a
registered domestic partner counts
as spouse.
Also make adjustments for nonprobate transfers to anybody who
receives anything intestate. May as
well go to spouse first, then figure it
out the other way. Also, Utah
recognizes common law marriage.
All if no kids or if all dead spouse's
kids are SS's kids.
6401(c): For the separate property,
intestate, the surviving spouse might
receive:
1. All property: Decedent has no kids,
parents, no issue of parents
2. 1/2 of property: 1 child or issue of
1 child only, parent or issue of
parent.
3. 1/3 of property: More than one kid,
issue of more than one kid
Kids not SS's children? Then
surviving spouse gets is $75k plus 1/2
of the balance. But, you have to make
an adjustment for non-probate
transfers. (But apparently no
adjustment for probated transfers (for
Page 15 of 41
stuff in a will) Use the HOTCHPOT
method. This applies only where
there are children that are not the SS's
children and there is a non-probate
transfer.
C.
Everyone Else
Utah 2-103
California 6402/6402.5
The balance of estate goes to issue of the
decedent. Follow the per capita distribution
rule regarding capita.
If no issue, then goes to parents.
If no parents, goes to issue of parents, per
capita and each generation. (It's obnoxious
to talk about descendants of two people
If no issue of parents, then issue of
grandparents. (half and half maternal and
paternal side).
Then to issue of pre-deceased spouse.
If nothing, then escheats to the state.
Half blood siblings are treated same as full
blood siblings.
Under 6402, non-spouse property goes to
the issue of the decedent as per the equal
share method which is default in California.
If no issue, take a detour in 6402.5.
This asks whether there was a pre-deceased
spouse. Did decadent receive any property
from this pre-deceased spouse? If yes--if
real estate received within the last 15 years,
then that property goes to relatives of the
predeceased spouse. If personal property
within last 5 years, then that goes to
relatives of pre-deceased spouse. It goes
first to issue, then parents, then issue of
parents, etc. You can follow the profits of
real estate sales made by the deceased.
Anyway--no issue? Then parents as per
equal share method. Then issue of parents
as per equal share method. Then issue of
grandparents (equal share method). Then
issue of a pre-deceased spouse, assuming it
wasn't disposed of according to 6402.5.
Then you look for next-of-kin of the
decedent. What is this? Nobody knows.
Perhaps great-grandparents, or just way out
there. They're probably saying to look at the
chart thingy.
6402.f provides for next of kin, and then
distributed between next of kin of equal
degree. But where there are different
ancestors of those, then the closest ancestor
is preferred. (Lowest degree of
consanguinity, then nearest ancestor) Then
to parents of pre-deceased spouse, issue of
parents of pre-deceased spouse
Then finally, escheat to state.
Page 16 of 41
D.
HOTCHPOT
Throw everything that is passing, including non-probate transfers (except
perhaps for probate transfers) into the pot. Then figure out the division. And
then out of the probate transfers, the person who got non-probate transfer
only get so much as to equal their share.
E.
Sample Problems
Sample Problems from Book:
If H and W are married and H dies leaving W and brother B, then in Utah, W
gets all and in California, W gets all community property, 1/2 separate
property, and B gets 1/2 separate property.
Decedent survived by mother, sister, and two nephews from a deceased
brother. In Utah, parent gets all. In California, parent gets all.
Decedent survived by a 1st cousin on mother's side and 2 1st cousins on
fathers side.
In Utah, once you hit grandparents, you split half and half between maternal
and paternal, so 1 cousin gets half, other two cousins get 1/4 each. In
California, that is 1/3 to each.
Decedent survived by mother's 1st cousin and 1st cousin's grandchild.
Mother's cousin is fewer degrees of consanguinity, but grandchild of cousin is
front a closer line.
Decedent survived by B, a sibling, and A, a half-sibling. Both siblings get 1/2.
F.
Familial Relationships
 Half-blood siblings are treated the same as full blood siblings. Utah 2107, Cal 6406
 For this course: Typical infant adoptions sever biological relationship
and establishes family relationship with adoptive parents. Adoption by
step-parent establishes new relationship without severing old
relationship. You can inherit form and through in these situations.
 Step relationships-generally not genuine. Your stepfather not a
relative—no intestate distribution from him or to him. Exception is
California 6454 that allows that if relationship began while kid was kid
and there would have been adoption but for barrier, then it is treated as
legit.
 Foster kids: ditto
 Posthumous births—allowed under Utah 2-104 and Cal 6407
 Co-Habiting (in Utah, common law marriage; in Cal, a registered
partnership,
 In-Laws: Nada, unless statute commands
Page 17 of 41
G.
Wrongful Death Statutes
These statutes override intestacy. Usually, an heir refers to someone inheriting
via intestacy, but wrongful death statutes have different definitions for heirs.
H.
Simultaneous Death or Death Between Decedent’s Death and
Distribution
Utah 2-104 and Cal 6403
If they die within 120 hours of each other, they are deemed to have predeceased the other. Once past distribution, however, it’s good. If they die
before distribution, but after decedent, then their estate inherits.
Page 18 of 41
XIII.
Life Time Advances
Do you make adjustments for lifetime gifts?
2-109 UT
There is no adjustment unless there is something in writing saying that you should.
and 6409 CALIF
Saying the same.
The common law said that you should make adjustments.
Adjustment (If treated as advance)
No Adjustment (If not treated as advance)
Common Law (there was a common law
presumption that there should be an
adjustment because gifts were considered
advances. This could be rebutted with
writing from testator saying not to treat as
advancement.)
2-109
6409
It is presumed that an advancement is not
requiring of an adjustment. This may be
rebutted if giver or receiver puts something in
writing saying that it is an advance and should
be treated as such.
Hotchpot is used to carry out the
adjustment. For example, if Guy dies,
leaving 900k and two kids, but having
given 100k to one of them, there is a
hotchpot of $1 million. Each child is
entitled to $500k, but one already has
$100k, so only get $400k out of the
$900k. If the gift exceeds what is left
over, or what the proper share would
have been, A merely collects or loses
nothing.
Hotchpot used if necessary.
XIV.
But in any instance, under the statute, if the
guy leaves $900k, regardless of lifetime gifts,
each of two children gets $450k.
Validity of Wills
Wills can be tossed for lack of testamentary capacity, undue influence, and for
improper formalities of execution (lack of two witnesses, etc.). To enforce these
requirements, somebody might bring a contest to the will.
Burden of Proof: For execution, preponderance of evidence in face of a prima facie
case put forth by estate. For testamentary capacity/undue influence, the burden is
generally on the contestant for a preponderance of evidence.
This applies to both wills and revocable trusts.
A.
Testamentary Capacity
Generally, you must be 19 to make a will. Cal 6100a. Mere fact of illness or
other problems does not block capacity. Capacity is its own thing.
1.
Testamentary Capacity per Common Law
This applies in Utah and only at the time the will was signed and made:
Page 19 of 41




2.
3.
B.
Do they know who the natural objects of their bounty are?
AKA—do they know who their relative are?
Do they know what property they own?
Do they understand the nature of the testamentary act?
Insane delusions—belief without basis for reason that holder
cannot be persuaded otherwise—negates capacity.
California Approach
Found in Cal Probate 810-812. This is regarding DPCDA. Criteria in
811.b. You don’t follow a diagnosis, you have to look at the mental
functions listed and they must impair individual’s ability to understand.
Then, 6100.5 codifies the common law principles.
Evidence and Preplanning Considerations
 Correspondence with attorney
 Journal
 Testimony of contemporary witnesses
 Doctor’s notes
 Notes of attorney
 Terms of will (leaving to imaginary friend)
 Holographic will that is a rambling mess
 Video-sound recording
 Dramatic change from other wills
 Try video tapes
 Try geriatric psychologist
 Hold a family meeting
 Explanation of why you disinherit
 Address a memo to the file
Undue Influence
This is when the will reflects the will of somebody who is not testator. It
doesn’t have to be the villain who profits. Inherently difficult to prove. Undue
influencers are smart. You have to crawl into the person’s head and try to see if
their free agency was violated. General influence is not undue influence.
1.
Burden of Proof Shift
Generally, it is for the contestant to establish a preponderance of
evidence, but the burden shifts if all the following are proven:
Page 20 of 41




Confidential relationship between testator and
recipient/perpetrator—this is a relationship of trust.
Attorney/client is presumed to satisfy. Others are maybe.
Superior position in the confidential relationship
Perpetrator participated in making of the will by drafting,
setting appointment with attorney, being with the attorney
Perpetrator unduly profited under making of the will. This
would be more than intestacy, or more than people with whom
they had an equal footing.
2.
Evidence and Steps to Take to Prevent
 Inconsistency with previous wills.
 Unnatural disposition (favoring the neighbor over children)
 Testator was in a vulnerable condition
 Opportunity
 Motive
 Will made in secret
 In haste
 Independent counsel
 Opportunities to revise the will that were ignored
 Participation of the wrongdoer’
 Try meet alone with client
 Do a memo to file
 Try a geriatric psychologist
3.
California
6104: Codifies basic common law principles. Execution/revocation of
will ineffective to extent it was procured by duress, menace, fraud,
undue influence.
6112: Interested witnesses give rise to rebuttable presumption of undue
influence. Unrebutted, the witness then receives what they would have
gotten without will being admitted to probate. Interested witness not
whacked if he’s a third witness. If actually interested though, the entire
will goes per 6104.
a)
Disqualified
Drafter, partner of drafter, employee of drafter, fiduciary of
testator, care custodian of testator are disqualified. Any spouse,
3rd degree relative of person or of person's spouse, or spouse
of a third degree relative also disqualified. This is based on the
consanguinity chart. (Within 3 degrees of consanguinity of
Page 21 of 41
disqualified person.) Exceptions per 21351 are that anybody
within 5 degrees of consanguinity is okay. Also can get a
certificate of independent review or cumbersome court
approval.
4.
Professional Responsibility
Cal4-400: illegal for attorney to induce client into giving a bequest
Utah 1.8: Attorney cannot solicit or prepare document that gives to
attorney.
Exceptions for relatives
XV.
Contesting a Will
A.
No Contest Clause (NCC)
Basically declares that anybody who contests the will is disinherited. The idea is
to terrorize anybody who might have an idea of contesting the will. Absent an
NCC, there can be benefits to challenging the will. With an NCC, the risks
suddenly escalate. The path to victory involves challenging the entire will, and
getting it with its NCC tossed.
The potential contester is going to have to figure out what the prior will or
trust said, before contesting. You don’t want to go into this blind.
The person making the will, if they are concerned about a specific person
contesting the will, might need to make some incentive bequests.
Clauses are broad as possible, defining any attempt to invalidate any provision
of the will has being worthy to trigger. Disputing the executor could be
included. Broadness can cover conspiracies, too. The result could be to
disinherit the issue of the heirs, too, so as to make it so that the contester and
the contesters issue cannot win at all.
Always check before filing a petition to make sure there is no NCC.
B.
Enforceability of NCCs
Never Enforceable New Cal and Utah
Some will argue
that they are too
harsh.
Furthermore, you
don’t want to allow
an NCC to child
Cal 21311: NCC
enforceable only if
there was no
probable cause for
the contest. If
there is a
Page 22 of 41
Old Cal, until 2010
21304: NCC to be
construed
narrowly. 21305:
Laundry list of
actions that are not
contests. 21307:
Always
Enforceable
Surely the testator
has a right to do
what he or she
would like.
legitimate contests.
XVI.
reasonable
likelihood of
success, you can
proceed. UT 3-905
requires probable
cause to bring a
contest, else the
NCC is
enforceable. Also,
UT 2-515
As per 6112 and
21350, an
interesting witness
or disqualified
beneficiary is not a
contest. 21320:
Declaratory relief
as to the contest
not falling under
the NCC is
allowable.
Formalities of Execution
Types of Execution:
1. Oral: An oral agreement could be enough to make a contract valid (except for
statute of frauds), or a trust. There are certain burdens of proof, but it is certainly
possible.
2. Signature sufficient: contracts, deed (notarized to get recorder to accept), trust.
3. Witnesses required: Contracts sometimes witnesses. Wills have to be witnessed.
4. Notarization: Not necessarily required, but almost always done. Verification of
signature. Sometimes contract, needed to record the deed. Utah: power of attorney.
California, a power of attorney is witnessed or notarized. Health care directives
often notarized. Not trusts, but might as well.
5. Jur At: (something a notary can do): Person is there to swear before notary that
what is in there is true and accurate. This is for affidavits.
So why have two witnesses on a will when you could have no witnesses on a
revocable trust? Theoretically, the person who has a will is dead when you're
deciding whether it was actually signed by them. With a revocable trust, you use it
daily for the rest of your life and are confirming it.
A.
Wills Must Have Two Witnesses
Policy is that we want to be absolutely sure that this is what the testator
wanted. However, the rules can often frustrate the true intent of the testator.
Cal 6110: Both witnesses have to see the guy sign or acknowledge at the same
time.
Utah 2-502(1): Must be two witnesses who sign the will as witnesses and each
must have seen guy sign it, heard guy say he signed it or acknowledge that it
was his will. In a reasonable amount of time afterward, they have to sign it.
They don’t have to be in the room at the same time and all that rigmarole.
Page 23 of 41
1.
Self-Proving Will
A self-proving will has the testator sign, and then the witnesses sign an
affidavit that is included with the will. Absent fraud, there is a
presumption that all is legit. Previously, the witness would have to
show up in probate court and testify. Thus, the two witness
requirement in case somebody died.
B.
Holographic Will
Pursuant to Utah 2-502(2) and Cal 6111, holographic wills are valid regardless
of a lack of witnesses. A holographic will must be in testator’s handwriting and
signed by the testator.
C.
Codicil
This is an amendment to a will. The requirements for validity are the same.
D.
Substantial Compliance
As per Utah 2-504 and Cal 6110(2), if you can show by clear and convincing
evidence (75% ish) that the testator intended this will to be his will, then in that
case, the will shall be valid. As a result of these statutes, following the old rules
puts you in a safe harbor.
E.
Signing Will in One State, Dying in Another
Pursuant to 2-506 and Cal 6113, you follow the probate rules of the state of
residence at death. However, wills are valid if it is valid in state of probate, if it
was valid in state where it was signed, or valid in place of residence of testator
when he signed it.
F.
Incorporation by Reference
As long as the document to be incorporated exists at the time the will was
signed and the will refers to it with reasonable specificity, it can be
incorporated. Utah 2-510 and Cal 6130. The statutes make the common law
less onerous. The list doesn’t have to exist at the time, but the list should refer
back to the will. However, the list can dispose only of tangible personal
property, and in California, there is a $5k cap on each item and a $25k cap on
the list. Utah 2-513 and Cal 6132.
G.
Acts of Independent Significance
Utah 2-513 and Cal 6131. You can leave money to whoever works for you, and
say it that way in the will. The acts of hiring and firing are independently
significant and float under the will. What you are doing is not a direct act to
change the will.
Page 24 of 41
H.
XVII.
Contract to Make a Will
Cal: 21700 and Utah 2-514. Maybe an old person needs somebody to care for
them, but can’t sell them the house quite yet. Such an arrangement would be
valid. But what if a couple enters into reciprocal or mutual wills? If one spouse
dies first, the other spouse can change, because it would seem you need privity
to sue on such a contract. If a couple really wants to do that, they need an
irrevocable trust created at the death of one spouse or the other.
Revocation of Wills
Utah 2-507. Cal 6120. 1) Express revocation, said in a new will. 2) Inconsistency: You
have one will, but make another that is inconsistent. Changing who gets the car
revokes the original will to that extent. Making a residuary is inconsistent enough to
completely revoke the first will. 3) Some act. Something you do to the will with the
appropriate intent. Burning, tearing, cancelling, obliterating, or destroying is sufficient.
Substantial compliance: Utah 2-503 stretches substantial compliance to revocation. Cal
6110 does not expressly say that.
A.
XVIII.
Dependent Relative Revocation (Rare Common Law)
 Testator signs a new will, then revokes the old will by an act on the
assumption that the old will is no longer relevant. But the, the new will
is for some reason not valid. If you can show that the only reason the
revocation occurred was because the testator assumed the new will was
valid, but it turns out the new will isn’t valid, then the old will comes
back to stay and is deemed to have not been revoked. If the new will
was totally different, then it is hard to establish that the only reason of
revoking was for the basic update. This applies to any act cancelling
or any other act that purportedly enacts a new plan of
disposition—formal new will not required, here. So, where a
moron cancels a provision, and writes it different, hoping to benefit
somebody, you can try applying this if substantial compliance isn’t
working for you.
 Mistake of fact that is recited in the will. “I revoke because Judy died.”
If Judy didn’t die, then the revocation is perhaps not valid.
 The first instance is unlikely because of substantial compliance statutes.
Will Revival
Will 1 was nice. Then Will 2 revokes Will1, perhaps expressly or by inconsistency.
What happens if Will #2 is revoked by Act? Is Will #1 revived?
No. UT 2-509, Cal 6123(a). No revival unless you can show that the testator intended
revival. But, the assumption is that revival was not intended.
Page 25 of 41
BUT, Utah 2-509 says that if Will #2's revocation of Will #1 was partial, then in that
case, the presumption is reversed and they presume that Will #1 part that wasn't
revoked is revived. California definitely doesn't do this.
1997
2000
2003
Result
Valid Will
1997 will revoked by Act
Intestacy
Valid Will
Valid will and 1997 will
expressly revoked
2000 will governs
Valid Will
Invalid Will which
purportedly revokes the
1997 will.
1997 governs because it was never
revoked because the 2000 will never
went into effect.
Valid will
Valid will
Valid Will
1997 Will revoked by Act
b/c counting on the 2000
Will
2000 will
Is the 1997 will revived? If you can't
revoked by Act show that it was, then it wasn't revived
and you have intestacy.
Classic example of dependent relative
revocation.
Problem #2 on p. 305 (or p. 269 perhaps)
Safety deposit box has 3 documents.
Will #1: Devises all property to A.
Will #2: Devises all property to B.
Other document: I hereby revoke Will #2. (Is this sufficient
to revoke, though? Apparently you need a new will to
revoke the old one. Check the statute--particularly, the
definition section. 75-1-201(58) or Cal 88. Utah: A codicil,
appoints an executor, or does nothing but revoke a will.
H is the intestate heir. California, the same.
How will the estate be distributed?
Arguments for Will
#1
1. Perhaps Will #1 was
never revoked
2. Perhaps Will #2 was
revived
1. To do this, show that
Will #2 was revoked
a. The third document is
according to statute
Arguments for Will #2
If you represent B, you
want to argue that will
#2 was never revoked.
So, rely on the other
arguments for A.
1. Will #2 not revoked
2. Will #1 was revoked
In any instance,
Page 26 of 41
Arguments for
Intestacy
In a substantial
compliance state, this
guy will probably win.
qualified as a will and
it definitely revokes.
However, it would
still have to comply
with the execution
requirements. So, if it
doesn't comply, then
tough, unless you're in
a substantial
compliance world. It
is easier in Utah
because substantial
compliance applies to
revocation. Could also
argue that the new
piece of paper is a
physical act cancelling
#2.
2. Show that testator
intended Will #1 to
be revived
a. We have no facts one
way or the other, but
whatever.
probably the only way
to win is to be in a state
without substantial
compliance.
The approach for a situation like the above is to figure out
which lawyer you are, and then figure out what has to
happen for whoever to inherit. For instance, for Will #1 to
win, you’ve got to get Will #2 invalidated, and Will #1
revived.
So, for validity, you’ll look for will definitions, other things
that make a will valid.
XIX. Codicil Has Effect of Republishing Will
Redate
1998
2001
Will made
Statute passed that applies to Codicil made? The entire will is
all wills applied after
considered to have been signed in
2003
Republish Will signed with
an interested
witness
2003
Codicil with 2 disinterested witnesses.
The original will is republished, and
the interested witness problem
disappears.
Page 27 of 41
Revive #1 Will
Will
Codicil to 1998 Will. What the? So
then, that makes 1998 the new will.
Revive #2 Will
1998 Will Revoked by Act
Codicil revives.
Redate
Will
Document to be
Incorporated (probably not
incorporated)
Codicil republishes the will and the
document to be incorporated, now
existing is okay
Ratify
Ineffective Will
Republish Will
XX.
Valid Codicil--basically fixes the will.
If the judge is in a good mood.
Omitted Spouse (as in, guy
got married after signing
will, and as a spouse, she has
a right to a portion of the
spouse)
Codicil--then what happens if it still
doesn't say anything about her? Then
she's not an "omitted spouse." The
wife doesn't get squat.
Extrinsic Evidence
Stuff outside of the four corners of the will to help with interpretation.
1. Statements to the attorney
2. Statements to friends
3. Correspondence
A. Policy
1. When Should Extrinsic Evidence Be Let In?
1. Argument: testator's intent should be paramount in interpretation of
a will.
2. Perhaps the Will is just plain ambiguous and you need the extrinsic
evidence.
3. Will is plain wrong and did not say what the testator wanted.
2. When Should Extrinsic Evidence Be Excluded?
1. Unwieldy
2. Unreliable (maybe a devisee lies, maybe the testator was a filthy liar)
3. Judges and Juries are not in a good position to be able to rewrite a
will, which is what will have to happen once you start admitting
extrinsic evidence.
4. Threat of malpractice
5. Best evidence of testator's intent is the will.
6. Will is a safe harbor
7. Flood of litigation would follow.
8. Judges and juries are inevitably biased. They have their own ideas
about how the estate should have been distributed.
Page 28 of 41
B. The Common Law Answer:
Plain Meaning Rule: Exclude it unless there is am ambiguity?
If there is ambiguity, you can let stuff in. There's a difference between patent and
latent ambiguities. Patent is obvious and appears right on the face of the will. A
latent ambiguity (good luck figuring it out) is where you read the will and it
makes sense, but then you go to distribute property, you realize that the will
doesn't seem to fit the world. Maybe the testator leaves property to people who
don't seem to exist.
1. Problems with PMR
Doesn't solve problem of when the will is just plain wrong. Mahoney case.
Guy wanted to leave stuff to his twenty-five cousins. Lawyer said in will
that he left to heirs. Turns out, his heirs weren't the twenty-five cousins.
No ambiguity.
Guy wants his money to go to the Scottish Society for Prevention of
Cruelty to Children. The lawyer left out the "Scottish." No ambiguity,
thus no extrinsic evidence.
C. California
Russell case: You can allow in extrinsic evidence certainly to clarify a patent
ambiguity. You can use extrinsic evidence to reveal and resolve a latent
ambiguity. But then, Cal declared that there was no ambiguity--it was clear
because of the evidence, so no extrinsic evidence to resolve the ambiguity--lady
wanted half to guy and half to dog. Well, half to dog is invalidated and half goes
to niece even though extrinsic evidence was clear that she wanted it all to go to
the dog.
D. Utah
Basically, extrinsic evidence comes in if there is ambiguity. (Plain Meaning is the
law, but courts just do what they reckon is right)
Basically, they do what is right.
BUT THEN UPC: xyz . . . .unless clear evidence that the testator intended
otherwise. That doesn't really address the plain meaning rule, but it seems to
invite the introduction of extrinsic evidence. The same phrase is used many times
in the UPC all over.
Mistakes don't seem to ever get in.
XXI.
Rules of Construction
Generally, you should do what the will requires. However, sometimes the results may be
confusing or ambiguous. In the absence of extrinsic evidence, etc., these rules come in
handy.
A. Types of Bequests
 Specific: My car to Andy, my table to Bob.
Page 29 of 41
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


B.
Pecuniary/General: For instance, $400 to my dog.
Demonstrative: Rare. Courtney gets $75k to be payable from Zions Bank
Acct#555. Basically pecuniary, but it is to be paid from a particular account.
Residuary: Bob's dog gets everything else.
Category separate from the rest:
o Precatory: Non-binding request--$100k to Bob with request that he'll take
car of Billy.
o Non-Monetary Gifts of Love: Almost non-existent.
Suppose the Specific Gift/Property is Not in the Estate
Common Law: If it isn't there, the guy is out of luck. Unless of course, the guy gave
the property ahead of time. Then, it is "adeemed by satisfaction." Or, maybe it was
stolen, destroyed, doesn't exist. Then it is "adeemed by extinction."
1.
Calif 21133-21134:
Pretty much the same thing. Exceptions:
 However, if a conservator sells something off that was devised, then
the devisee gets the value, if the estate can afford it.
 Sold car on installment agreement? Then the unpaid balance goes
toward the devisee of the car.
 Also, unpaid insurance proceeds.
 Unpaid eminent domain proceeds.
 Or, testator has a promissory note he leaves to heir, but then he
forecloses, so he can get foreclosure proceeds.
 Once the person pretty much has the cold hard cash, then there is
nothing the heir can do.
2.
Utah 2-606
Pretty much reverses the common law. Same exceptions as California. And
then:
 And recipient is entitled to the value of the property gifted but not in
the estate, unless it appears from evidence that the testator would not
intend that. This pretty much invites extrinsic evidence. Adeemed by
satisfaction is clearly the idea that the heir shouldn't get more.
If the devisee is going to end up having to get a cash substitute, then they get
tossed into the abatement of pecuniary gifts situation as if they had receive a
pecuniary gift.
C.
Transformation of Specific Property
Stock splits and stock mergers screws up the amounts of specific property available.
Suppose Tippett leaves 100 stocks of Microsoft to Natalia. But what if there was a
3:1 stock split and at death Tippett now owns 300 shares of Microsoft stock. Or,
what if there is a merger and the Microsoft stock becomes something else stock. The
rule is that the devisee gets whatever it has transformed into.
This as per Utah 2-605 and Cal. 21132.
Page 30 of 41
D.
Exoneration of Mortgage
Leave house to Bob, but it has a mortgage and will doesn't say whatever.
 Common law: Personal representative has to pay off mortgage before
distributing the house. Bob would be quite the winner.
 UT 2-607 and Cal. 21131: If will is silent, the devisee would have to take the
house subject to the mortgage. (If house is underwater, then the beneficiary
could disclaim.
E.
Abatement of Pecuniary Gifts
Say, you leave $100k to Emily and $50k to A.J. If there is $150k of cash in estate,
then all is well. BUT if there isn't that much cash, and maybe plenty of other
property. Then, the other residue property will have to be sold to pay the money.
What happens if there just isn't enough property to pay the pecuniary bequestees?
Say, $100k, $50k, and residuary bequests. The residuary heir doesn't get squat. How
do you divide up the $100k for the $100k and $50k bequests? Pro rata.
F.
Ademption of Pecuniary Gifts by Satisfaction
UT2-609 and Cal 21135.
Recall the common law presumption that lifetime gifts resulted in an adjustment
unless it could be shown from testator in writing that there should be no adjustment.
The statutes reversed the presumption.
So here, maybe there is a pecuniary gift in the will, but then devisee gets a bunch of
money in life. Common law calls for adjustment, but statutes say that you do not
make an adjustment unless the testator acknowledges in writing that an adjustment
should be made. This applies to beneficiaries under wills.
G.
Demonstrative Bequests (this isn't super well developed or consistent
across the states)
It's like a specific gift. Even if pecuniary gifts have to abate, the bequest of $50k
from an account just goes straight to the person. It is treated like a specific bequest
to the extent that it is there. BUT to the extent that the money mentioned is not in
the account, it is treated like a pecuniary gift.
Maybe if one devisee gets a $50k pecuniary, and $50k demonstrative, the
demonstrative would take precedence.
H.
Residuary Bequests
Best way to screw somebody.
It's not a good way to give something to somebody if you want them to actually get
something.
I.
Beneficiary Predeceases Testator
Do what the will says. But if will says nothing, then here's what you do, but really,
when you draft will, remember to say what if.
Common law:
1. Gift to individual: The gift lapses if beneficiary pre-deceases. It's like the gift
was not made. And then basically to the residuary beneficiary.
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2. Class Gift--gift to a class: Say, to siblings. I leave a million bucks to my siblings.
What if a sibling pre-deceases. Common law is lapse. Gift passes as if the gift
to that deceased sibling had not been made. It goes to the other members of
the class.
3. Residue: Suppose the guy getting the residue pre-deceases. Lapse. The residue
is passed through intestacy. Goes to testator's intestate heirs.
4. Multiple residuary beneficiaries: Gift to the one member of the class lapses.
Utah 2-604
J.
Anti-Lapse Statutes
Theoretically, lapse is not always equitable, particularly where the predeceased
beneficiary was family, so it is logical to believe that testator would have liked it to go
to the beneficiary's issue. That's what anti-lapse statutes generally do.
1.
Utah's Anti-Lapse
If it doesn't apply common law wins, and whatever it is goes to
residuary or residuaries and then onto testacy as may be appropriate.
2-603 (one of the three which work the same, there's one for wills, trusts, and
beneficiary designations. This applies the same across the board.)
1. Is the will explicit? 2-603.2.d. If will is silent, keep asking questions.
2. Was pre-deceased devisee a grandparent/descendant of a
grandparent/step child of the testator? If no, then the anti-lapse statute
does not apply and you're in the lapse zone. (might not count if it's a
class with somebody coincidentally related.) 2-603.2
3. Does will have survivorship language? I leave my table to Bob if he
survives me. If he didn't survive, he doesn't get it. If no, then move on.
2-603.2.c
4. Does predeceased devisee have living descendants? (step-child doesn't
count) If yes, then the anti-lapse statute applies and the person who is a
descendant scores big according to per capita by generation.
This applies to class gifts in such a way as to make it so that property going
to pre-deceased member of class goes to issue of the pre-deceased member
of class.
All this baloney doesn't apply when you leave your stuff to your issue or
descendants or whatever. That's when you start using the charts. This is for
when you have a somewhat specific bequest and the person pre-deceased.
Lapse or anti-lapse applies broadly to wills, trusts, beneficiary designations, and
powers of appointment. 2-604.2 for anti-lapse state.
IN UTAH: if the Anti-Lapse comes to the rescue, then the per-capita at each
generation kicks in with the bequest.
2.
California Antilapse
 Is will explicit? 21110.h and 21111 A.1
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




Was predeceased devisee kindred? 21110.c Was the idea of leaving it
to them because of their family relation? It isn’t very clear in the
statute.
Survivorship language to head this off? 21110.b.
Does predeceased have living descendants
If lapse wins on default, 21111.a.2-3.
If anti-lapse wins, the bequest goes to the beneficiary’s issue under
Equal Share Method.
How does power of appointment deal with lapse? Say like Sam Settlor makes Inge
the income beneficiary and gives power of appointment to adjust the remainder
heirs. So, Inge has broad power of testamentary appointment, and gives it to
someone who isn’t even her kid. Then this other person dies. The appointee is dead,
in other words. You use all the same analysis. As for statutes, it seems that
permissible appointee needs only be a relative of either the settlor or power of
appointment person. If the power of appointment lapses, apparently the trust already
had a designation of the residuary heirs or whatever.
K.
Situations
Intestate heir pre-deceases the decedent? Then you use the diagrams.
Intestate heir survives the decedent and date of distribution, then the heir does what
the heir wants to do.
Intestate heir survives decedent, but dies before distribution? Property goes to heir’s
own estate.
How does this change with a will or trust? If guy survives the distribution date, he
can go to Wendover. Beneficiary dies before decedent? All that stuff we talked
about. Follow will, but if will silent, you have lapse v. anti-lapse. And then, survives
testator but not date of distribution. Then it goes to the beneficiary’s own estate.
XXII. Omitted Spouse or Child
Say like, testator picks up new wife or child and fails to have opportunity to make a new will.
A.
Spouse
1.
Cal 21610-21612
Omitted spouse is entitled to intestate share. BUT. In California, intestate
spouse gets the community property and gets portion of SP that would be all,
½ and 1/3 depending on other relatives. The omitted spouse, aka
pretermitted spouse, gets the community property share, but no more than
½ of the separate property and as low as 1/3. The other half goes as per the
Page 33 of 41
will. BUT omitted spouse doesn’t get share if it appears that the omission
was intentional (republication by codicil would be pretty damning). Signs
estate plan day before he gets married. Or, if spouse was provided for
elsewhere and that was in lieu of being in will. Like an irrevocable trust.
Where does this portion come from? It is taken first from any property that
would be passing intestate anyway. Then, you take from the will’s
beneficiaries proportionally. Even from the residuary proportionally. (Which
is odd, but whatever)
2.
Utah—2-301
Sucks for omitted spouse. They get: his or her intestate share of property that
is not devised in the estate plan to the decedent’s children by prior marriage.
So, loses on opportunity to get stuff willed to children. Then only gets a
fraction of the leftover.
Where does this portion come from? From spouse, intestacy property,
residue, pecuniary gifts, gifts.
This flies unless it was an intentional omission or the spouse provided for
elsewhere. Republication by codicil would be pretty damning.
B.
Child
Child born after will, and will is not revised or whatever afterward. Also
known as pretermitted.
1.
Cal 21620-21623
Rule: Child is entitled to his or her intestate share. Unless: the omission was
intentional, the child was otherwise provided for, or if substantially all of the
estate was left to the other parent of the omitted child. Paid from intestacy,
then proportionally from other stuff.
2.
Utah 2-302
Rule: If there are no other children at all, other than the omitted child or
omitted children, the omitted child gets his or her intestate share. Unless:
The omission was intentional or the omitted child was otherwise provided
for. (No substantial portion to other parent exception.) Paid from: Intestacy
property, residue, pecuniary gifts, specific gifts.
Rule: If there were other children at time the will was made, then you take
the property left to the other children and add it all up and then give the
value of the fair share to the omitted child. Paid from: Other children’s
bequests proportionally. Unless: Intentional, otherwise provided for.
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XXIII. Divorce
A.
California
6122: Revokes revocable stuff (bequests and nominations). Revokes gifts, fiduciary
appointments. Revokes executor appointment. Anything in revocable trust. But not
irrevocable trusts, etc. Effect: Divorced spouse is deemed to have predeceased the
testator. But, does anti-lapse statute apply? Under California anti-lapse statute, only
kin can benefit. Also 61221 this applies equally to registered domestic partners.
Relatives of the divorced spouse can still get stuff.
B.
Utah 2-804
Revokes what is revocable in bequests, nominations. In effect, disclaimed (gift
refused). Basically pre-deceased. Does anti-lapse apply? No, under Utah anti-lapse,
even a current spouse isn’t grandparent, descendant of grandparent, etc. Statute
specifically says relatives of former spouse don’t get property (Cal doesn’t say
this).The divorce also severs any joint tenancy arrangements. (Cal doesn’t say this).
Converts them to tenant in common arrangements.
XXIV. Homicide
A.
Cal 250
Effect of beneficiary killing someone? Revokes the bequest. Effect is that the slayer
predeceased. The killer’s kids don’t take under the anti-lapse statute. What about gifts
to relatives of the killer? Not revoked?
B.
Utah 2-803
No conviction is needed. Preponderance of evidence showing that homicide meets
elements of felony. Revokes bequest to kill, as if killer had disclaimed, which is same
as pre-deceased. Kids of slayer might receive because Utah statute doesn’t have same
language. As for relatives, not revoked.
XXV. Disclaimers
You can refuse to take stuff under the will. Why would you do that? Maybe you have
environmental liability. Maybe the property is underwater. Maybe there are tax benefits. So
maybe, daughter doesn’t want the property or doesn’t want it taxed when she dies, so she
executes a disclaimer and then property, if the estate is set up that way, passes directly to the
grandchildren without the extra level of tax. (Disclaimer, that is as if predeceased treatment,
and the generation skipping tax does not attach.)
XXVI. Surviving Spouse’s Elective Share
What happens in common law state where the title of property sits with the husband? In
common law states, the widow/widower is entitled to an elective share. In Utah, the elective
share is 1/3 of the Augmented Estate. So, widow/widower can go in and say they were
disinherited and say they’d be better off with 1/3 of augmented estate. The augmented estate
Page 35 of 41
is pretty much the marital property which is pretty much what the community property
would be in a community property state. No such thing in Community Property states. In
theory, those states give the surviving spouse the community property.
XXVII. Family Protection
Utah
 Homestead Allowance $22,000
 Family Exemption: $15,000
 Family Allowance $27,000
California: Discretionary according to what the court wants to give. Given up front to
enable family to get by during the period of probate administration.
XXVIII.
California Probate
This is very messy, and the mess could be avoided by a decent revocable trust.
When do you have the probate? Will. Intestate succession.
Why probate? Get property into the right hands and make sure the property has
clean title.
A.
Petition for Probate
 Appointment: You’re asking for appointment of the personal representative.
Judge can override will to pick someone if things look bad.
 Will: You’re asking that the will, which is attach to the petition, be admitted
to probate and be regarded as the valid will. If there is on will, you’re
requesting that the estate be distributed accordingly.
 Notice: You’ll have to provide the names and addresses of all the people
named in the will and people who would be the decedent’s intestate heirs in
an intestacy situation. Notice.
 Hearing: You want to object to all this, you show up to a hearing. The
hearing could be set as far as 2 months out. You could screw up and get it set
even further if you don’t get notice sent out.
 “Letters Testamentary” or “Letters of Administration”: A sheet of paper that
is the judge-signed evidence that the personal representative has authority.
The bond would have to be in place.
 Bond: Insures that the personal representative isn’t going to run away with
all the estate’s money. The premium is usually .25% of the value of the estate
per year. The fee comes from the estate. The bond should only cover the
stuff IAEA allows them to do something with. But if they do get stuff sold
with court approval and it becomes something the rep can dispose of, then
the bond coverage should increase.
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
IAEA: Judge decides what powers rep has under Independent
Administration of Estates Act. Judge makes the decision, but the will might
specify a preference.
B.
Preliminary Management Responsibilities
 Marshal: The rep presents the letters to the bank and requests to have
control of the account and have it named “Bobby Scott, Executor of the
Estate of Scotty Bob.”
 Inventory: Rep has to get appraisals of all the junk, and in California get an
independent referee. Value is as of the date of death.
 EIN: This estate gets an employer identification number you can put on all
the income tax returns that will be filed.
 Bills: They will have to be paid on an ongoing basis.
 Creditors: Must deliver notice to all known creditors, requiring a claim
submission within 4 months or be barred thereafter. The personal rep
evaluates claims and whether they should be paid. Creditor claims come off
the top.
C.
On-Going Management Responsibilities
 Taxes:
o Decedent’s final 1040 has to be filed (also state taxes)
o Estate’s tax stuff
o Estate 1041, the fiduciary income tax return. The estate is a taxpaying entity. You pay each year the estate exists.
 Accounting: Making accounts, based with opening balance, the expenses of
attorneys, accountants, etc, distributions, and then the closing balance. If the
beneficiaries don’t like what they see, they can go to the court.
 Sale of Assets
D.
What if a Revocable Trust?
Would have to send out notice, would have to get an EIN for taxes, would have to
marshal, would still have to pay bills, would still have to send notice to creditors.
Would have to pay all the taxes. Basically, no court stuff.
E.
Independent Administration of Estates Act
California, designed to make probate simpler.
 Full: Need approval for transactions between personal representative and the
estate and between the personal rep’s attorney and the estate.
 Limited: Court approval needed only for real estate transactions, transactions
between the personal representative and the estate, and transactions between
the personal representatives attorney and the estate.
Page 37 of 41

None: Have to get court approval, notice, hearing for practically everything.
That includes two month delay in getting a date.
XXIX. Utah Probate
 Files with clerk, sends out notifications
 Informal: Notice sent out to possible intestate heirs, and if there is no objection after
ten days, the letters are issued, and the executor can do everything. No appearance
before a judge.
 Formal: An objection is filed results in formal probate. The formality is limited to
that particular part of the dispute.
 Supervised Administration: Something requested if the personal representative is
argued to be untrustworthy. Court approval needed for distribution. If you want to
stick them to more than that, you have to file formal objections. This most difficult
way in Utah is roughly equivalent to the easiest way in California.
XXX. Distribution
Order for Final distribution specifically says who gets what, identifying it all and all that. You
record that the same way you would record a deed. The order should contain all the relevant
numbers, etc. Same with brokerage accounts or bank accounts. It is evidence that you’re
entitled to the property. (California)
Utah: The personal representative, even in informal probate, has authority to sign a deed as
personal representative to the grantee.
XXXI. Ancillary Probate
What happens when someone dies in Utah, probate is opened in Utah, and there is
California real estate at stake? The court and the court’s appointed personal representative
doesn’t have authority to deal with California real estate. You’d have to open up ancillary
probate in California. To do that, take letters to California probate court and ask court to
appoint personal representative as ancillary administrator for the California real estate at
stake. Ancillary probate is opposed to primary probate. If it’s the opposite, dies in in
California and has property in Utah, then, ancillary probate in Utah. It’s easy in Utah. All he
has to do is file proof of authority in Utah court, sans judge appearance.
XXXII. Special Administration
Emergency probate? Who will have authority to do things that are immediately necessary.
You go ex parte, say there could be substantial loss to the estate. If the judge agrees with
you, he/she will give you letters of special administration. The authority will be very
narrow and carefully circumscribed. Authority disappears when an actual personal
representative is appointed.
Page 38 of 41
XXXIII.
Guardian Ad Litem
What happens when you have a minor beneficiary and there is a matter arising that
affects? Minor doesn’t have legal capacity to act on their own behalf. 1) Turn to the
parents, who are the natural guardians. But, there might be a conflict of interest. 2)
So then, maybe you could have virtual representation. That’s where if the child’s
interest is dependent on the parent getting the best, then that’s not the same as a
conflict of interest. For instance, an income beneficiary versus a remainder
beneficiary and his children, the contingent remainder beneficiaries. A similar
situation happens where there are classes with both adult and minor members who
are treated equally. 3) Guardian ad Litem appointed for child’s best interest if the
natural guardians and virtual representation isn’t working to actually, in fact, protect
the interests of the minor.
XXXIV.
Fiduciary Duties
 Investment: They need to prudently invest, follow the Prudent Investment
Act, they have to have a diversified portfolio of assets. They have to be
prudent about maintaining stuff—insurance. If a prudent guy would have
done it with his own stuff, the fiduciary should do that. Keep the property
prudently invested.
 Keep Beneficiaries Informed: Must ensure that the beneficiaries are kept
informed, have copy of trust, get annual accountings, get news about lawsuits
or whatever.
 Segregate Assets: Keep assets segregated from your own personal assets. No
comingling of assets.
 Duty of Loyalty: The fiduciary should really really not being entering into
interactions with the estate or the trust. You shouldn’t be buying from or
selling to the estate or trust. You would need court approval in California. In
Utah, you shouldn’t do it and such things could be voided or set aside. You
act strictly in the best interests of the estate or trust. If you are the owner of a
competitor of an asset in the trust, you probably shouldn’t be the fiduciary.
XXXV. Estate Tax
 What’s Included?
o Take to Wendover
o Revocable trust
o Joint tenant contributions
o General power of appointment
 What’s Not Included?
o Limited power of appointment
o Irrevocable gift
o Gift to an irrevocable trust
Page 39 of 41

XXXVI.
o Trustee of an irrevocable trust where you’re the beneficiary where limited by
an ascertainable standard health/education/support/maintenance (unless
you’re an idiot and write “comfort” into the trust). Must be ascertainable!
Deductions
o Spouse—unlimited marital deduction
o Tax-exempt charity
o Exemption that everybody has--$5mil/$1mil per person
Gift Tax
 Non-Taxable
o $13k per year per donor and donee
o Medical or educational gifts directly to the provider
 Taxable
o Everything else (reduces the exemption on the estate tax)
A.
Annual Exclusion Gifting
Consider that a H&W can gift to each child, each child in law, each grandchild for
both the H&W. Then consider the time value of money. The value gotten by the
heirs is also not taxed.
B.
2012 Opportunity
$5 Mil and $ 1 Mil thingy. Maybe you can do the $5Mil now and escape when the
rate plummets.
XXXVII.
Fractional Interest Discounts
You can fractionalize the asset. If you die owning 100% of an apartment building,
then that will be taxed. What if you only own 99% of the apartment building? What
is the worth then? Less than 99%. Could be 75%. That’s economics. So maybe you
give 1% to your kid.
Sometimes, people do the same thing with an LLC or LP. They pile everything in
there and then give off 1% of it. Watch out, though. If you don’t have a legitimate
reason to create, the IRS will be all over you.
XXXVIII.
Generation Skipping Transfer Tax (GST)
Not estate tax, but looks similar. Basically, grandpappy leaves estate to grandchildren
so that it only gets taxed only once on the way to the grandchildren’s hands. Or
maybe grandpa puts stuff in a trust with his daughter as the income beneficiary and
thus benefits her, but doesn’t get taxed when she dies.
The tax comes in after the 50% estate tax on the grandpa and then taxes half of that
to the grandchildren. The result is the grandchildren getting 25%. You also have a
Page 40 of 41
$5M on this tax, though. If we’re dealing with non-relatives, 37.5 age difference
constitutes a generation skip. Also doesn’t kick in if a generation has deceased.
XXXIX.
A.
XL.
Credit Shelter Trusts aka By-Pass Trusts
Maybe you have a husband and wife with $3M. If husband dies and leaves to her,
hasn’t he wasted his exemption because it’s going to be taxed like crazy when the
wife dies. So maybe you make a trust that shelters the husband’s $1M exemption.
The wife is the trustee/beneficiary with ascertainable standards. Result is that the
stuff isn’t taxed as part of the wife’s estate. Result is that only $1M would be subject
to estate tax. Something called portability allows this to happen automatically. It
might disappear on Jan. 1.
Q-TIP Marital Trust
What do you do with the stuff leftover after the shelter trust maxes out? Create a
trust for the benefit of the surviving spouse as long as surviving spouse gets all
income and any principal that heads out. Surviving spouse must be only person. It is
deemed to be passing to spouse and thus exempt from estate tax. This is still taxed at
death of surviving spouse, BUT it ensures that she doesn’t leave it to someone not
the husband’s child.
Life Insurance Trust
Becomes owner and beneficiary of a policy. The policy proceeds pour into the trust and will
not be taxed as part of the estate of the person who dies. Otherwise, the owner/estate
beneficiary of a life insurance policy could get taxed under estate tax.
The only statute dates you need to worry about are substantial compliance and no contest in
California, both effective on Jan 1, 2010.
120 HOURS is the pre-decease rule, not 120 days!!!!!!!!!!!
UTAH omitted spouse/intestacy deals with surviving children of another marriage.
Entity
Estate
Creator
Testator/Decedent
Revocable Trust
Irrevocable Trust
Conservatorship
Agency
Special Administration
Settlor
Settlor
Court/Conservatee
Principal
Testator/Decedent
Legal Title
Personal
Representative
Trustee/Settlor
Trustee
Conservator
Agent
Special Administration
Wills and Estate review, 5 PM Wed Dec 5
Page 41 of 41
Beneficial Interest
Devisees/Heirs
Settlor
Beneficiaries
Conservatee
Principal
Devisees/Heirs