PROPERTY E SLIDES

2-21-13

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer

at Death

• Intestate Succession– Generally

–Working with Specific State Statutes

• Wills– Generally–Will Formalities– Substantial Compliance– State of Mind Requirements

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also Alex’s child, and one of whom

(Cassie) is a child from the decedent’s prior marriage.

Note that B & C get identical shares from D in all states.

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Florida: Relevant Statutory Provision?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Florida §732.102.  Spouse's share of intestate estate.  The intestate share of the surviving spouse is:  (3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

Resulting Disposition?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Florida §732.102.  Spouse's share of intestate estate.  The intestate share of the surviving spouse is:  (3) If there are surviving descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.

Disposition: A= 50%  B = 25%  C = 25%•Note under 732.102(2), if both B & C are A’s children, A gets 1st $60K + 50%

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Vermont: Relevant Statutory Provision?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Vermont: § 311. Share of surviving spouse.  … (2) In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse …, the surviving spouse shall receive one-half of the intestate estate.

Resulting Disposition?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Vermont: § 311. Share of surviving spouse.  … (2) In the event there shall survive the decedent one or more descendants of the decedent who are not descendants of the surviving spouse …, the surviving spouse shall receive one-half of the intestate estate.

Disposition: A= 50%  B = 25%  C = 25%•Note under § 311 (1), if both B & C are A’s children, A gets entire estate (subsection 1 different than FL)

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Community Property: Relevant Statutory Provision?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §45. COMMUNITY ESTATE. – Note that on death of one spouse, half of the

Community Property automatically becomes that of the surviving spouse

– The “Community Estate” is the other half (the part that “belonged” to the deceased spouse)

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §45. COMMUNITY ESTATE.

(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse.

Resulting Disposition?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §45. COMMUNITY ESTATE.

(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse.

Disposition: A= 50%  B = 25%  C = 25%•Note under §45(a), if both B & C are A’s children, A gets entire Community Estate

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Non-Community Property: Relevant Statutory Provision?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §38(b)(1). •Draws Distinction between “personal estate” and “land”•For this provision, no difference where children are not from surviving spouse

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §38(b)(1). (Personal Estate)•If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants.

Resulting Disposition?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §38(b)(1). (Personal Estate)•If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants.

Disposition: A= 1/3  B = 1/3  C = 1/3

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §38(b)(1). (Real Estate)•The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

Means?Resulting Disposition?

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Texas Probate Code §38(b)(1). (Real Estate)•The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

Disposition: A= Life Estate in 1/3  B + C  Split remainder in that 1/3, plus each get 1/3 of land outright

DQ46: D is survived by spouse (Alex), and two children, one of whom (Bob) is also

Alex’s child, and one of whom (Cassie) is a child from the decedent’s prior marriage.

Recap:

•FL: A= 50% B = 25% C = 25%•VT: A= 50% B = 25% C = 25%•TX (Community): A= 50% B = 25% C = 25%•TX (Non-Community)

– Personal Estate: A= 1/3 B = 1/3 C = 1/3– Real Estate: A = Life Estate in 1/3 (B + C split

rest)

•All Three: Some Difference if Children All Both D’s + Surviving Spouse’s

DQ47: D is survived by: Eloise, child of D’s mother and father;

and Frank, child of D’s mother and her 2d

husband.

DQ47: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Florida: Relevant Statutory Provision?

DQ47: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Florida §732.105.  Half blood.  When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.

Resulting Disposition?

DQ47: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Florida §732.105.  Half blood.  When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part of the half blood, those of the half blood shall inherit only half as much as those of the whole blood; but if all are of the half blood they shall have whole parts.

Disposition: E = 2/3  F = 1/3•Note TX §41(b) = similar language/same result

DQ47: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Vermont: Relevant Statutory Provision?

DQ47: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Vermont: § 331. …[K]indred of half-blood. Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

Resulting Disposition?

DQ47: D is survived by: Eloise, child of D’s mother and father; and

Frank, child of D’s mother and her 2d husband.

Vermont: § 331. …[K]indred of half-blood. Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

Disposition: E= 50%  F = 50%

DQ48: D had 2 children, Albert & Beatrice.

At time of D’s deathA dead, survived by one child, ErnestB dead, survived by 2 children, Frank

& Grace

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceFlorida: Relevant Statutory Provision?

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceFlorida: Relevant Statutory Provision?

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceFlorida §732.104.  Inheritance per stirpes.  Descent shall be per stirpes, whether to lineal descendants or to collateral heirs.

Means?Resulting Disposition?

DQ48: D had 2 children, Albert & Beatrice.

At time of D’s deathA dead, survived by one child, ErnestB dead, survived by 2 children, Frank

& Grace

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceFlorida §732.104.  Inheritance per stirpes.  Descent shall be per stirpes, whether to lineal descendants or to collateral heirs.

Disposition:•Split into one share for each dceased child.•A’s 50% goes to E•B’s 50% gets split by F & G (so 25% each)

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceTexas: Relevant Statutory Provision?

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceTexas Probate Code §43:  Determination of Per Capita & Per Stirpes Distribution•When the intestate's children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons; •and, when a part of them being dead and a part living, the descendants of those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive.

Means?

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceTexas Probate Code §43:  Determination of Per Capita & Per Stirpes Distribution•When the intestate's children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons;

•and, when a part of them being dead and a part living, the descendants of those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive.

Means? Resulting Disposition?

DQ48: D had 2 children, Albert & Beatrice.

At time of D’s deathA dead, survived by one child, ErnestB dead, survived by 2 children, Frank

& Grace

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceTexas Probate Code §43:  Determination of Per Capita & Per Stirpes Distribution•When the intestate's children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons…

Disposition: E & F & G all of same degree, so all take equally

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceVermont: Relevant Statutory

Provisions?

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceVermont: §314(b)(2) … to the decedent's siblings and the descendants of any deceased siblings by right of representation;§314(c) [which means] the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

Means?

DQ48: D had 2 children, Albert & Beatrice. At time of D’s death

A dead, survived by one child, ErnestB dead, survived by 2 children, Frank &

GraceVermont: §314(b)(2) … to the decedent's siblings and the descendants of any deceased siblings by right of representation;§314(c) [which means] the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

Meaning (& Disposition) Same as Florida

DQ49: D had 3 children, Albert,Beatrice, Claudine.

At time of D’s deathA dead, survived by one child, Ernest

B dead, survived by 2 children, Frank & Grace

C alive with living child Hannah

DQ49: D had 3 children, Albert,Beatrice, Claudine.

At time of D’s deathA dead, survived by one child, Ernest

B dead, survived by 2 children, Frank & Grace

C alive with living child Hannah• All Three Divide into Three Branches– C gets own 1/3 share– E gets A’s 1/3 share– F & G split B’s 1/3 share = 1/6 each

• Different in pure per capita state• I’ll write up for you

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous

Son Born

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornFlorida: Relevant Statutory Provision?

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornFlorida §732.106.  Afterborn heirs.  Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime.

Resulting Disposition?

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornFlorida §732.106.  Afterborn heirs.  Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime.

Disposition:D’s Posthumous Nephew Takes a

Share

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornTexas: Relevant Statutory Provision?

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornTexas Probate Code §41(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.

Resulting Disposition?

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornTexas Probate Code §41(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.

Disposition: D’s Posthumous Nephew Gets Nothing

b/c Not D’s Lineal Descendant

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornVermont: Relevant Statutory

Provision?

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornVermont: § 303. Afterborn heirs. For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Resulting Disposition?

DQ51: D’s Brother Dies Leaving Pregnant Wife

D Subsequently Dies 10 Days Later Brother’s Posthumous Son

BornVermont: § 303. Afterborn heirs. For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Disposition:Posthumous Nephew Takes if He Survives

D by 120 Hours (5 days)

DQ50: Who is the most remote relative who can receive the

Intestate Estate ?

DQ50: Who is the most remote relative who can receive the

Intestate Estate ?Florida?

DQ50: Who is the most remote relative who can receive the

Intestate Estate ?Florida: Descendants of Grandparents– §732.103 (4) (b) stops there. – §732.103 (5) adds kin of “last

deceased spouse”, although technically not D’s relatives, so not really responsive to Q

Vermont?

DQ50: Who is the most remote relative who can receive the

Intestate Estate ?Florida: Descendants of GrandparentsVermont: No Limit: – § 314(b)(4) “Next of kin” without

limit mentioned

Texas?

DQ50: Who is the most remote relative who can receive the

Intestate Estate ?Florida: Descendants of GrandparentsVermont: No Limit: Texas: No Limit: §38.  (a) (4) … If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.

Intestacy: What I Expect

• General Understanding of Operation• Recognition of Issues Where States Can Differ• Meaning of Statutory Language from the

Three States We’ve Looked At.

LOGISTICS

• Chapter 4 Materials Posted with Updated Syllabus & Assignment Sheet

• Test on Chapter 4 = Thursday 3/21 @ 11:00 a.m.– Closed Book with Syllabus Attached– Multiple Choice– 70 Minutes 20-25 Questions

• I’ll post soon– Detailed Instructions & Sample Qs – Instructions on Writing Sample Exam Qs for Review

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer

at Death

• Intestate Succession– Generally–Working with Specific State Statutes

• Wills– Generally

–Will Formalities– Substantial Compliance– State of Mind Requirements

YOSEMITE:  Will FormalitiesDQ53

HALF DOME

YOSEMITE DQ53: Is signature at the “end” of the will if there’s a gap of 4-5

inches between the end of the text and the signature line?

I, Will Sandtrusts, being of sound mind and body, leave my property as follows:

To my son Jeremy, I leave my collections of Victorian Erotic Art and of Ancient Coins, all of the furnishings of the game room at the Rhode Island Mansion, and a one-half interest in my yacht, Salt Codicil.

To my son Kevin, I leave all of my CDs and DVDs, and a one-half interest in my yacht, Salt Codicil.

To my most beloved daughter Louise, I leave all of the furnishings from the rooms of my late wife in both the Rhode Island Mansion and the Manhattan apartment and all of the boats I own except for Salt Codicil.

To the Society for the Preservation of Ancient Property Rules, I leave the sum of $45,000.

To Jack Jackson, the manager of the Vanderbilt Yacht Club, I leave the sum of $25,000 for years of helpful service.

To the longtime servants at the Rhode Island Mansion, Ella, Max, Genevieve, Aloysius, and Ferdinand, I leave $12,000 each, as well as $2,000 to young Ethan, who has been very helpful in his short stay.

To Natasha Fatale, who has made my last years bearable, I leave the Manhattan apartment and all its furnishings except those listed above for Louise.

The Rhode Island Mansion, after the above gifts have been bestowed, is to go in equal parts to Jeremy, Kevin, and Louise, except that if either Kevin or Jeremy sell or give away their hslf of the yacht Salt Codicil during their lifetimes, their share of the mansion will then go to Louise.

The rest, remainder, and residue of my estate is to be divided equally among my grandchildren living at the time of my death.

Will Sandtrusts

Xmas Day

2012

YOSEMITE:  Will FormalitiesRev. Prob. 3A

HALF DOME