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1) Mechanics of Succession

a) Probate Administration
i) Functions
(1) Provides evidence of transfer of title to new owners
(2) Protects creditors by providing a procedure for payment of decedents debts
(3) Distributes the decedents property to those intended after the decedents creditors are
ii) Choice of Law
(1) Primary jurisdiction: law of the state where the decedent was domiciled at death
(2) Ancillary jurisdiction: law of the state where the decedents real property is located
iii) Decedents Creditors
(1) Nonclaim statutes: requires that the creditor file claims within a specified time period;
problems arise when proper notice is not given
(a) Two forms that these statutes operate in:
(i) Bars claims not filed within 2-6 months after probate proceedings are
commenced, or
(ii) Bars claims not filed 1-5 years after the decedents death
(2) Creditors can for a probate proceeding to be opened, even if there is no probate
property in order to allow certain nonprobate property to be used
b) Nonprobate Administration
i) Most nonprobate property is contracts with third party beneficiaries, therefore no
proceeding is needed
c) Professional Responsibility
i) Duties to Intended Bs
(1) Majority: the attorney drafting the will/nonprobate document is liable to the 3P Bs of
the document for negligence in estate planning
(a) Standard: exercise reasonable care
(b) Rationale: harm to potential beneficiaries is reasonably foreseeable (Simpson v.
(2) Minority: Privity defense; the lawyer only has a duty to exercise reasonable care to the
decedent, as the lawyers client in privity (only 9 states follow this rule)
ii) Conflicts of Interest
(1) Often an issue when the lawyer represents both H and W
(2) Must ask for a waiver of confidentiality to represent both parties as interests may
become adverse (see A v. B)
(a) Example: any information regardless of source will be revealed if the lawyer
believes it would affect the estate planning.
2) Intestate Succession
a) Purpose
i) Estate planning by default if no plan has been put in place by the decedent
ii) May be partial intestacy if some property had not been disbursed by other means
iii) Statutes of Descent and Distribution attempt to carry out the probable intent of the
b) Structure
i) Surviving Spouses Share
(1) General Rule: In most states, the surviving spouse receives at least of the decedents
estate with the remainder to the descendants

(2) Simultaneous Death Problem: when couples die in the same accident; a person receives
the property of the decedent only if the person survives the decedent for a period of
(a) Uniform Simultaneous Death Act (USDA): if there is no sufficient evidence of the
order of deaths, each spouse is deemed to have predeceased the other, so neither
inherited from each other
(b) 120-hour Survivorship Rule: The surviving spouse must survive by 120 hours (5
days), or otherwise deemed to predecease their spouse
ii) Descendants by Representation
(1) English per stirpes: each live column is treated equally
(a) live column is a column in the family tree where there is an issue alive; if a child of
the decedent predeceased the decedent and did not have any issues, then the
column is not considered live
(2) Modern per stirpes: each column is treated equally, beginning at the first row with a
(a) The difference between English and Modern is where (horizontally) you start
(3) UPC/Per Capita at Each Generation: Begin counting at the first row with a survivor, but
each taker on any row is treated equally with other takers on that row
iii) Parents: if there are no descendants, then the parents take after the spouses share
iv) Other Collaterals: if there is no spouse, descendant, or parent, then other collateral family
members take
(1) First line collaterals: descendants of the parents (aka decedents siblings);
(2) If there are no first line collaterals, states provide for two different schemes in how to
(a) (Majority) Parentelic System: the estate passes to the grandparents and their
descendants, and if none, to the great-grandparents and their descendants; moves
up the stairs on the table of consanguinity
(b) (Minority) Degree of Relationship System: estate passes to the closest of kin,
counting degrees of kinship on the table of consanguinity
v) Escheat: if a person dies intestate and without any relatives who can take, the estate is said
to escheat and goes to the state of the decedents domicile
c) Problems arising from Transfers to Children
i) Step and Half Children: Most states and the UPC recognize step and half children as full
children for the purpose of intestate succession
ii) Adopted Children
(1) Formal Adoption: jurisdictional split on whether the child can inherit through/from both
genetic and adopted parents, three versions:
(a) The child can only inherit from their adopted parents/relatives, the genetic family is
no longer in the family tree by way of adoption (see Hall v. Vallandingham)
(b) The child can inherit from both the adoptive and genetic parents
(c) The can inherit from both the adoptive and genetic parents, only if the child was
adopted by a stepparent
(2) Adult Adoption: most intestacy statutes draw no distinction between child adoptions
and adult adoptions; the practical effect is to put the adult adopted person ahead of
siblings if the validity of the will is to be challenged
(a) Minority: it would be against public policy to allow the adult adopted child to take if
the adoption was a covert attack against the testators intent (see Minary)

(3) Adoption in Wills/Trusts: once the adoption is recognized by the statute, courts do not
have a problem allowing the adopted child inherit from a will or other gift
(a) Minority stranger to the adoption rule: The adopted child is presumptively barred
if the donor is not the adoptive parent and a gift is given to the adoptive parent
(4) Equitable Adoption/Adoption by Estoppel: if there is an oral agreement between a
married couple and the genetic parent (if applicable), adoption is presumed if the
couple takes a child into their home and raises it as their own for the purposes of
iii) Posthumous Children: the child was conceived before, but born after the fathers death
(1) The child is treated as alive from the time of conception rather than birth for the
purpose of inheritance
iv) Non-Marital Children: children of unmarried parents
(1) Common law: cannot inherit from either the mother or father
(2) Modern law:
(a) All states permit the child to inherit from the mother
(b) States vary on whether the child can inherit from the father; require that:
(i) There is a subsequent marriage between the mother and father;
(ii) The father acknowledges the child as his;
(iii) The issue has been adjudicated; or
(iv) There is clear and convincing proof of paternity after death
v) Posthumously Conceived Children (as a result of reproductive technology)
(1) Because marriage terminates at death, a posthumously conceived child is a nonmarital
child by law
(2) In order for the posthumously conceived child to enjoy inheritance rights the court must
(a) What is in the best interests of the child
(b) The states interest in orderly administration of the estate
(c) The reproductive rights of the genetic parent
(i) The prospective donor must clearly and unequivocally consent to the
posthumous reproduction and to the support of any resulting child (see
Woodward v. Commn of Social Security)
vi) Property Management of a Minor
(1) Guardianship: guardian takes possession of the property with a duty to support the
child; cannot change investment without a court order
(2) Conservatorship: conservator is given title as trustee of the property with investment
powers; appointment and supervision of a court still required
(3) Custodianship: given the property to hold for the benefit of the minor; required to
transfer property when s/he reaches the age of majority; under no court supervision
(4) Trusteeship: only available if created during life of the decedent
d) Other Problems
i) Disinheritance: If a person is disinherited by will or other document, s/he may still get
something by partial intestacy if the estate plan was not complete
(1) Common Law: cannot have a negative disinheritance, ie cannot keep people from
getting something in the will unless the will devises all property
(2) Modern Trend: a disinherited heir in the will is treated as a disclaiming heir, to have
predeceased the testator
ii) The Slayer Rule: prevents people from inheriting from their victims if that person
wrongfully/purposely bring upon their death

(1) Applies to wills, intestacy, and nonprobate estate planning
(2) No conviction required, but there must still be a court proceeding to determine fault
iii) Disclaimers
(1) Common law: if an heir refused to accept an inheritance, the common law treated the
heirs renunciation as if title had passed to the heir and then from the heir to the next
intestate successor
(2) Statutory law: treats the person disclaiming as to have predeceased the decedent
before the time of distribution so it would go to the next in line
(a) General rule regarding creditors: if disclaimed, the debtor is deemed to not ever
have had an interest in the property for creditors/tax purposes because there is no
control over what happens next to the property
(i) Exception for Federal Tax Liens: by disclaiming the property, the party exerted a
right and control over the property. (see Drye note case)
3) Wills
a) Wills Act
i) Formalities
(1) The will must be in writing;
(2) With the testators signature;
(3) And signed by two witnesses
(a) Attestation: the testator communicated an intent that this is his/her will and the
witnesses acknowledge it; creates a rebuttable presumption that the formalities
have been met
(b) Self-Proving Affidavit: recites that the requirements have been complied with and
signed in front of a notary; creates clear and convincing evidence that the
formalities have been met
(c) Presence requirement: the will must be signed or acknowledged in the presence of
the two witnesses
(i) Line of sight rule: the testator is capable of seeing the witnesses in the act of
signing (see Stevens v. Casdorph and in re Groffman)
(ii) (majority) Conscious presence rule: the witness is in the present of the testator
through a general consciousness of events and the testator comprehends that
the witness is in the act of signing
ii) Purpose of the Formalities
(1) Ritual function
(2) Evidentiary function
(3) Protective function
(4) Channeling function
iii) (Traditional) Strict Compliance Rule: the will is only valid if it is in strict compliance with the
Wills Act formalities (see Stevens v. Casdorph and in re Groffman)
iv) Substantial Compliance Rule: the will is valid if the functions of the formalities were
followed as closely as possible;
(1) demonstrable by clear and convincing evidence that the testator intended that it be his
will despite lack of strict compliance
b) Purging Statutes
i) Majority: if an interested person to a will signs as a witness, then they must purge/forfeit
the benefit they would have received by the will
(1) Some states provide that only the excess needs to be purged, the amount they would
have received through intestacy may still stay (estate of Morea)

ii) Minority: no requirement that the witness be disinterested
c) (Strong Trend) Harmless Error Rule
i) The document is treated as if it had been executed in compliance with the Wills Act if the
proponent of the will can show by clear and convincing evidence that the testator intended
that the document is his will
(1) Estate of Hall: clear and convincing evidence that the testator intended the edited, but
not executed will to stand
(2) In re Macool: must show an intent that the new document be the will, not intent to
change the current one
d) (Slim Majority) Holographic Wills: valid if it is in the testators handwriting and the proponent
can show testamentary intent by clear and convincing evidence
i) Handwriting requirement:
(1) Traditional definition: A holographic will is written entirely in the testators handwriting
and signed/dated by the testator; it does not need to be signed by a witness
(2) Relaxed Rule: parts of the will may be on a preprinted form, but the will must work with
only the handwritten parts being read
(3) Most Relaxed Rule: a preprinted form can be used, but any words identifying
property/beneficiaries must be handwritten (Estate of Gonzalez)
ii) Testamentary Intent: intent that the document have legal effect (Kimmels Estate, fathers
letter to his sons saying if anything happens to me)
e) Revocation of Wills: a will can be revoked and modified at any time
i) Subsequent Writing Revocation
(1) The subsequent writing must be executed in compliance with the Wills Act formalities
(2) Express: I, *name+, make this my will and revoke all prior wills and codicils
(a) Estate of Stoker, holographic will expressly revoked the earlier trust
(3) Revoked by Inconsistency (Implied):
(a) UPC: a subsequent will does not expressly revoke a prior will but makes a complete
disposition of the testators estate, then the subsequent will presumptively revokes
the earlier will by inconsistency
ii) Physical Act Revocation
(1) A physical act, such as destroying, obliterating, or burning the will must be done to the
words/content of the will
(a) Thompson v. Royall, writing on the back of a will is not enough of a physical act
revocation, must cross the words
(2) Harmless error is not available for physical act revocations
(3) Physical act revocation on a copy of a will that is believed to be the original can revoke
the original (Estate of Stoker)
iii) (Majority) Presumption of Physical Act Revocation
(1) There is a presumption of revocation when a will last known to be in the possession of
the T cannot be found or found in a mutilated condition (Harrison v. Bird)
(2) The presumption may be rebutted by clear and convincing evidence that T did not
intend to revoke the will; (modern trend only requires a preponderance of the evidence)
(3) If the will is lost and was last known to be in the possession of another person there is
no presumption of revocation
iv) Revocation of a Codicil
(1) If the codicil depends on the will for its meaning and the underlying will is revoked, then
the codicil is revoked as well

v) Dependent Relative Revocation (DRR): Revocation of a will/codicil is presumptively
ineffective if the T made the revocation because of a false assumption of fact/law that is
demonstrated by clear and convincing evidence.
(1) Estate of Alburn: cannot have the first will, no revival, she revoked the second will
thinking the first will was revived. Since there was evidence preferred a will over
intestacy, the court applied the second will under DRR
(2) Analytic Framework to Follow:
(a) Did T revoke the Will?
(b) Did T make a mistake of law or fact?
(c) Was there an alternative plan of disposition that failed?
(d) If the mistake could have been corrected would T prefer to retract the revocation?
(i) If yes to these, then DRR applies; No at any stage, DRR does not apply
vi) Revival of a Revoked Will
(1) Common law rule: Will 1 is revived upon revocation of Will 2 because the will does not
speak until the Ts death; Now revocation is effective immediately therefore need
evidence that will was intended to be revived.
(2) Majority rule: Revoking Will 2 revives Will 1, but only if the circumstances surrounding
the revocation shows an intent that the first will is revived.
(3) Minority rule: a revoked will cannot be revived without testamentary formalities or
being republished
vii) Revocation by Law
(1) Divorce: (Majority) deems the ex-spouse to predecease the T and revokes their
(2) Marriage:
(a) Common law: premarital will is revoked by marriage
(b) Majority rule: premarital will remains valid despite subsequent marriage, but a
surviving pretermitted spouse is entitled to an intestate share of the estate unless
the omission was intentional. (see protection of the spouse below)
f) Components of a Will
i) Doctrine of Integration: all papers present at the time of executing are intended to be part
of the Will are treated as part of the Will (Estate of Rigsby)
ii) Republication by Codicil: a validly executed will is treated as re-executed on the date the
codicil is executed
(1) Clark v. Greenhalge: can has an effect on how cases are decided because the date of
the will moves up
iii) Incorporation by Reference:
(1) Existing writings (common law): Incorporation occurs when the will references the
independent document in existence at the time of execution, but not executed with
Wills Act formalities. (see Clark v. Greenhalge)
(2) Subsequent writings of tangible personal property (UPC rule; slim majority): Allows for T
to dispose of tangible personal property by a separate writing even if prepared after the
execution of the will, provided that the will makes reference to the subsequent writing.
iv) Acts of Independent Significance:
(1) A T cannot condition testamentary gifts on acts that have no independent significance
other than testamentary intent.
(a) Example (not valid term in a will): Anything labeled with a blue flag goes to my son
and a red flag goes to my daughter
(2) Rationale: these sort of acts are conducive to fraud

g) Contracts Relating to Wills
i) Contract to Make a Will: Controlled by contract law, not the law of wills
(1) Arises in situations where someone offers to take care of another for the duration of
their life in exchange for something in the will.
(2) General Rule: If a party to a valid will contract dies leaving a will that does not comply
with the contract terms, the will is probated in accordance with the Wills Act, and the
contract beneficiary is entitled to a remedy for the breach
(3) Remedies for a breach
(a) Monetary damages
(b) Constructive trust in favor of the contract beneficiary to prevent adjustment
enrichment of the will beneficiary
ii) Contract Not to Revoke a Will
(1) Arises in situations where H and W write joint/mutual wills that mirror each others
(2) Majority rule: execution of a joint/mutual will does not give rise to a presumption of a
contract not to revoke a will
(a) For this claim to be successful, the plaintiff must show that the testators intended to
make the wills irrevocable. (Keith v. Lulofs)
(3) Minority rule: language in the mutual/joint will such as we or our indicates a
contract not to revoke
h) Will Contests
i) Standing:
(1) The challenger must be an interested party that would take under intestacy if the will is
set aside
(2) If the plaintiff cannot get standing in a probate proceeding, they can seek standing
through other equitable means (Latham v. Father Divine: Court gave the plaintiffs
standing under a constructive trust theory because they demonstrated that the T
promised to make them beneficiaries and revoke the current will)
(1) In terrorem Clauses: If a person with an interest in this will contests it, they lose their
benefit under the will
(a) Majority rule: courts will enforce these clause if unsuccessful challenger lacked
probable cause; Success in the suit is not necessary
(b) Minority rule: clause is not enforceable at all
(c) Other minority rule: clause is enforceable according to its terms
ii) Testamentary Capacity
(1) Ethical issues: if the lawyer suspects someone lacks capacity, cannot prepare a will
(a) Person may have a lucid interval and the lawyer may execute a will then
(2) General Rule: if the will is valid on its face, the challenger bears the burden to prove lack
of capacity (Wilson v. Lane)
(3) Test: the testator has testamentary capacity if they are capable of
knowing/understanding in a general way:
(a) The nature/extent of his/her property (What is my property?)
(b) The natural objects of his/her bounty (Who is going to get it?)
(c) The disposition that s/he is making of that property (How is it going to go?)
(i) Must be reasonable and orderly (Breeden v. Stone)
iii) Insane Delusion Doctrine: the testator adheres to a false conception of reality despite all the
evidence to the contrary

(2) General Rule: A person may satisfy the test for testamentary capacity but an insane
delusion may cause the entire will to be invalidated if the delusion affects the
disposition of the will (Strittmaters Estate; see also Breeden v. Stone)
iv) Undue Influence
(1) Definition: Influence over the donor that overcame the donors free will and results in a
donative transfer
(2) Purpose: Protects against overreaching by a wrongdoer seeking to take an unfair
advantage of a donor who is susceptible to influence
(3) Test: A challenger is entitled to a presumption of undue influence, when they
demonstrate (circumstantial evidence admissible)
(a) There is a confidential relationship between the alleged influencer and the donor,
(i) Examples: fiduciary, reliant, dominant and subservient
(b) one or more suspicious circumstances exist
(i) Examples: donor was in a weakened condition; the wrongdoer participated in
the preparation of the will/document; donor did not receive independent
advice; will/document procured in secrecy or haste; disposition is regarded by a
reasonable person as unnatural, unjust, or unfair
1. See Estate of Lakatosh; Estate of Reid
(4) Burden of proof
(a) Challenger bears the burden of proof to show the confidential relationship +
suspicious circumstances (see Lipper v. Weslow)
(i) There is a presumption of undue influence when there is a confidential
relationship and an inter vivos gift (see Estate of Reid)
(b) If the test is met, the burden shifts to the proponent of the will to show the will is
v) Duress: coercion by force/threat of force which causes the T to revoke or execute a will (see
Latham v. Father Divine)
vi) Fraud: False representation of a material fact intended to induce, and did induce, action
based on reliance of that false representation
(1) In the execution: person intentionally misrepresents the character/contents of the
instrument signed by the testator
(2) In the inducement: a misrepresentation that causes the T to execute/revoke a will in the
wrongdoers favor
(3) Proving causation: the will is only invalid for fraud if the donor would not have made the
transfer had he/she known the true facts
vii) Tortious Interference with an Expectancy
(1) Courts in almost half the states recognize this new tort, however will not entertain the
claim without the plaintiff exhausting probate remedies. (Schilling v. Herrera)
(2) Elements:
(a) Expectancy
(b) Intentional interference through tortious conduct
(i) Including duress, undue influence and fraud
(c) Causation
(d) Damages
(3) Benefits to bringing a tort claim (if available)
(a) Longer statute of limitations
(b) Punitive damages available

(c) Evidence rule barring testimony by interested parties in probate court do not apply
to tort cases
i) Construction of Wills
i) Governing Principle: look for the intent of the testator, traditional rules do a poor job at this
which has led to modern construction changes
ii) Mistakes and Ambiguities
(1) Plain Meaning Rule (Traditional): no extrinsic evidence is allowed if the plain meaning of
the will is clear on the face of the document (Mahoney v. Granger)
(2) Patent Ambiguity: ambiguity is evident on the face of the will
(3) Latent Ambiguity: ambiguity is only evident when the terms of the will are applied to
the facts
(a) Traditional rule: no extrinsic evidence allowed, the term fails and the gift falls into
the residuary clause
(b) Minority rule: collapses the distinctions between patent and latent ambiguity and
allows extrinsic evidence for both. (see Estate of Cole)
(4) Ad Hoc Relief for a Mistake: court created exceptions just short of openly reforming the
will but keeping more closely with the testators intent than the plain meaning rule
(a) Allows extrinsic evidence of the Ts actual intent when there is a mistake in the
details, particularly when details are susceptible to mistakes
(i) Arnheiter, mistake in the street address of a property owned
(ii) Gibbs Estate, mistake in the middle initial of one of the beneficiaries
(5) Will Reformation for a Mistake (minority rule): some courts are willing to reform a
mistaken term in a will to reflect Ts actual intent
(a) A court can admit extrinsic evidence, if the proponent shows
(i) A mistake of law/fact exists by clear and convincing evidence
(ii) What the ts actual intent was by clear and convincing evidence
(b) See Estate of Herceg, computing error dropped off the beneficiary of the residuary
clause, clear that the presence of a residuary clause means that the T wanted one
iii) Beneficiaries predeceasing the Testator
(1) Lapsed Devises (traditional): If a devisee does not survive the testator, the devise fails
and is said to have lapsed
(a) if a specific/general devise lapses, the devise falls into the residue, absent an
antilapse statute?
(b) if a residuary devise lapses, one of two things could happen (absent an antilapse
(i) no residue of a residue rule (common law): when a residuary devise lapses, the
devise goes through intestacy (Estate of Russell)
(ii) Modern Rule: when the residuary devise lapses, the devise gets absorbed into
the rest of the residuary, unless there is an antilapse statute
(2) Void Devises: if the devisee is already dead or an ineligible take, such as a dog, the
devise is void and the same rule for lapsed devises applies, see above. (Estate of Russell)
(3) Antilapse Statutes: statute that substitutes other beneficiaries in the event of a lapse
where the beneficiary predeceases the testator
(a) If an antilapse statute applies, the issue/descendant of the predeceased devisee
takes if there is a qualified relationship between the substitute devisee and the
(b) Purpose: to get to the presumed intent of the testator
(c) Words of Survivorship: to A, if he survives me

(i) Majority: words of survivorship express an intent to condition the gift on
surviving the testator; an antilapse statute does not apply and the gift goes into
the residue if there is one (if not, to intestate heirs of T)
(ii) UPC/Minority: words of survivorship, absent other evidence, is not enough to
condition the gift on surviving the testator; and the antilapse statute applies
(4) Class Gifts:
(a) Common law: if a devise is to a class of persons, and one member of the class
predeceases the T, then the surviving members of the class take the gift
(b) Modern Rule: if a devise is to a class of persons, and one member of the class
predeceases the T, then the surviving members of the class take the gift, unless an
antilapse statute applies
(c) Evidence of a Class:
(i) Group label, ie my first cousins
(ii) Dynamic share, ie a share that can expand and contract with the class
iv) Changes in Property after Execution of a Will
(1) Ademption: occurs when physical property in a specific devise in a will no longer exists
because the T either gave it away before death or it was destroyed
(a) Identity theory (traditional/majority): if a specific devise gift is no longer in the
estate, the gift is extinguished and the term fails
(b) Modified Identity Theory: if the transfer of property out of the estate was
involuntary, it is presumed that the T intended the person to get what was left
(i) Applies in 2 specific cases
1. Destruction of property occurred with the death of the T
2. T has a legal guardian/DPOA and the T has no capacity to execute/modify
the will
a. As a matter of policy, the identity theorys purpose does not work in this
case. (Estate of Anton)
(c) Intent Theory (rising trend): if a specific devise gift is no longer in the estate, the
beneficiary may be entitled to the replacement/cash value of the original item if the
beneficiary can show that a replacement was what the T intended
(2) Satisfaction
(a) Only arises when the parent gives money to their children, common law considers
that it is an advancement on the legacy;
(b) Modern jurisdictions require a writing for it to be satisfaction.
(3) Exoneration
(a) Common law: if a will makes a specific disposition of real/personal property, it is
presumed that the T intended the estate to take care of any liens on the
(b) Modern Trend: devisees take the property subject to the lien
(4) Abatement: If an estate lacks sufficient assets to pay the decedents debts as well as
devises, it is treated like a bankruptcy dividing pay among claimants of different
(a) Residuary loses first, then general, then specific
(b) Note: avoid abatement by drafting a will in percentages of the estate rather than
dollar amounts.
4) Nonprobate Transfers
a) Basic Information

i) Nonprobate transfers are donative transfers taking place after death; revocable until the
moment of death
ii) Most take the form of 3P beneficiary contracts
b) Trusts
i) Trust Characteristics
(1) A trust is a gift projected over time and subject to a management scheme
(2) The trust is governed by the trust instrument first, and then by the Uniform Trust
Code (UTC) as a default rule if the trust instrument does not speak on the issue
(3) Bifurcation of ownership is the hallmark characteristic of a trust; the trustee holds legal
title to the property and the beneficiaries have equitable title
(4) Functions of a trusteeship
(a) Custodial; taking care of property and safeguarding it
(b) Administrative; accounting and recordkeeping
(c) Investment; making and implementing an investment program for assets as part of
an overall strategy suited for the needs of the beneficiaries
(d) Distribution; making disbursements of income or principal to the beneficiaries in
accordance with the terms of the trust
(i) Income interest: Fiduciary accounting income under the traditional meaning,
includes interest, dividends, royalties, rents
1. Example: the trustee shall distribute all of the net income of the trust at
least annually to A, during her lifetime
2. Trust instrument can define it differently if the settlor wants
(ii) Principal interest: Includes the assets themselves, stocks, land and can increase
in value (capital appreciation)
1. Example: the trustee shall distribute so much of the principal of the trust to
A for her health and education as the trustee in its sole discretion deems
(iii) Revised Uniform Principal and Income Act
1. Permits the trustee to adjust between principal and income in investment
2. Frees up investments in total return as opposed to balancing between
income and principal
3. Settlor may choose an amount to disburse as income
ii) Trust Creation
(1) Requires:
(a) A manifestation of intent of the settlor to create a fiduciary relationship
(i) a trust does not fail for want of a trustee the court will appoint one
(ii) Precatory language: does not create a fiduciary relationship, thus does not
create a trust
1. Example: I wish I hope, or I recommend
(b) Ascertainable beneficiaries who can enforce the trust
(i) A trust fails when at the time the trust becomes effective, the beneficiaries are
too vague or indefinite to be ascertainable. See Clark v. Campbell
(ii) The beneficiaries must have legal standing to enforce the trust, therefore trusts
for pets cannot work in common law. See Searights Estate
1. Exception by statute: almost every state now allows for a trust for the care
of a pet, as long as it is only for the duration of the pets life
(c) Specific property held in trust

(i) Unthank v. Rippstein, no specific property mentioned to be held in trust in the
declaration, therefore it is not a trust but a failed gift
(d) A writing as required by the Statute of Frauds/Wills Act
(2) Private Trusts
(a) Testamentary Trust
(i) Created by a will, still must go through probate
1. When determining whether the testator intended to create a trust, the
court must determine whether the testator intended to create a fiduciary
relationship and it is not just precatory language
(b) Inter Vivos Trust/Revocable Trust
(i) Most popular form of trust because it is not asset specific and provides the best
substitute for all property
(ii) Created either by a declaration of trust or a deed of trust:
1. Declaration of trust: The settlor holds the property in trust for himself, but
for it to be valid, he must owe a fiduciary duty to someone other than
2. Deed of trust: the settlor and the trustee are different people
(iii) Provides for a form of uniform/across platform estate planning
1. Settlor creates a trust for all his property
2. Settlor then makes the trust a beneficiary of a pour over will
a. All property acquired later in life after making the trust will end up in
the trust regardless
3. Uniform Testamentary Additions to the Trust Act: a trust can be executed
before, concurrently, or after a will
(c) Honorary Trust
(i) The trustee does not have a fiduciary obligation to carry out the intent of the
1. If they decide not to carry out the gift, the property in question reverts back
to the settlor/settlors successors in resulting trust
2. Typically used for trusts for pets if there is no statute in place
iii) Fiduciary Administration
(1) The trustee has all the powers over the trust property that a legally competent,
unmarried individual has with respect to individually owned property
(2) The trustee must subordinate his/her interests to those of the beneficiaries
(3) Liability of the trustee:
(a) Traditional law: when a trustee holds legal title of the trust property, the trustee
was personally liable for the debts and obligations arising from ownership. As a
remedy, the trustee could indemnify himself against the trust
(b) Prevailing modern law: a creditor of the trustee in the trustees fiduciary capacity
recovers directly out of the trust fund without recourse against the trustee
iv) Alienation
(1) Two questions, the answer depends on what kind of trust provisions are present
(a) Can the beneficiary alienate his/her interest?
(b) Can the beneficiarys creditors attach to the interest?
(2) Mandatory
(a) Gives the trustee no discretion and it must be followed

(i) Example: the trustee shall distribute all net income to B in annual or more
frequent installments
(3) Discretionary (no support standard)
(a) The trustee is given sole discretion over when, to whom, and in what amount to
make a distribution
(i) Example: the trustee shall distribute so much of the income and principal to
the beneficiary as the trustee in its sole discretion deems advisable from time to
(b) Creditor cannot attach/compel distribution; theory is that the B does not have a
property interest until the trustee makes a distribution
(i) Hamilton Order Exception: the creditor may get a court order prohibiting the
trustee from making distributions to the beneficiary until the creditor has been
(4) Support
(a) The trustee has discretion over the disbursements, but must disburse for the
support of the beneficiary
(i) Example: the trustee shall distribute so much of the net income and principal
of the trust to A as necessary for As support
(b) Traditional: An ordinary creditor cannot reach the interest even with a court order;
(i) Exception: a child or spouse can reach the interest for child support/alimony.
Also, other creditors such as physicians who supplied support
(c) UTC and Restatement have different rules for creditors in support trusts
(i) Restatement: creditor can reach distributions the trustee makes or is required
to make from a discretionary trust
(ii) UTC: a creditor cannot compel a distribution in a discretionary trust, even if the
trust is subject to a standard and even if the trustee has abused its discretion
1. Only exception: child, spouse, or former spouse for support or maintenance
but only to the extent that the trustee has abused its discretion
(5) Discretionary with a Support Standard (most common)
(a) The trust has an ascertainable standard for support, since there is a standard, the
beneficiary has a standard to demand enforcement
(i) Example: the trustee shall distribute to the beneficiary so much of the income
and principal as the trustee in its sole discretion deems advisable for the
support of the beneficiary.
(b) Treated as a discretionary trust (see above) by the UTC and Restatement for the
purposes of creditors
(6) Protective
(a) Starts off with a mandatory provision, but in the event that the B attempts to
alienate/assign an interest or any creditor attempts to attach the interest, it
changes to a discretionary trust with no ascertainable standard
(b) Used in England in the absence of spendthrift trusts
(7) Spendthrift
(a) a provision prohibits the B from voluntarily alienating her interest in the trust and
prohibits creditors from reaching the Bs interest
(i) Example: to the full extent allowed by applicable law, the interest of any B in
the income and principal of this trust shall be free from the control or
interference of any creditor of the B or any spouse of a married B. Such interest
shall not be subject to attachment or susceptible to anticipation or alienation.

(b) A B of a spendthrift trust cannot transfer interest and a creditor cannot compel a
distribution, even if the trust is a mandatory trust
(i) All US jurisdictions recognize some form of the spendthrift
(ii) Exceptions: child support and alimony in most, but not all, jurisdictions
(c) Traditional law: not a spendthrift trust unless expressly stated in the trust
(8) Self-Settled
(a) General Rule: a self-settled trust cannot be used to shield assets from the settlors
(i) Exceptions now exist by statute in 14 jurisdictions
(b) Jurisdictions that allow asset protection self-settled trusts typically allow the settlor
to remain the co-trustee but provide for termination of the relationship in an event
of duress
(i) These provisions have not been tested stateside yet, unknown if it is
(9) Problems arising with Tort Creditors
(a) Typically tort creditors are not allowed to attach to an interest in a trust, but few
jurisdictions now allow it in two exceptions
(i) Self-settled trusts
(ii) Fraudulent transfers
(10) Problems arising with individuals on state support
(a) The principal and all income are considered resources of the individual for the
purposes of state funded support, regardless if it is self-settled or created by a 3P
(i) Two exceptions for Medicaid
1. Discretionary trust created by the will of the deceased spouse
2. Established for the benefit of a disabled person from the persons own
property by a guardian, provided that the state will receive reimbursement
upon death for medical assistance
v) Modification and Termination without consent of the Settlor (most likely because of death)
(1) Termination: Claflin Doctrine:
(a) A trust can be terminated with consent of all the beneficiaries except if doing so
would be contrary to the material purpose of the settlor
(i) Prima facie examples of material purpose: the trust has a spendthrift provision,
the trust postpones distribution until a certain age, the trust is a
support/discretionary trust
(2) Modification: Equitable Deviation
(a) The court may modify the terms of the trust if:
(i) Changed circumstances not anticipated by the settlor exist; and
(ii) The changed circumstances substantially impair the accomplishment of the
purpose of the trust
(b) Traditional: only for administrative terms
(c) Modern: allows equitable deviation for administrative and dispositive terms
(i) UTC Equitable Deviation (more liberal reading)
1. The court can modify both the administrative and dispositive provisions if:
a. Circumstances not anticipated by the settlor occurred;
b. Modification of trust will further the purpose
c. The modification is made in accordance with the settlors probable

(1) Decanting: pouring over the assets of one trust into another trust
(a) Used to refresh the trust that has become stale over time
(3) Modification for Tax Objectives: biggest reason beneficiaries request a modification; the
court will usually approve a modification for tax purposes
(4) Trustee Removal:
(a) Traditional rule: only to be used as a remedy for breach of trust/wrongdoing
(b) Modern rule: beneficiaries can remove the trustee for cause
(i) Typically by a provision in the terms of the trust that overrides traditional law
(ii) UTC: beneficiaries can remove a trustee on account of,
1. Ineffective administration by the trustee
2. Change in circumstances or
3. By the consent of all the beneficiaries if it is in the best interest of the
beneficiaries and not contrary to a material purpose of the settlor
vi) Purpose and Charitable Trusts
(1) Charitable Trust
(a) Distinguishable from private trusts in three ways
(i) Must be for a recognized charitable purpose rather than for one or more
ascertainable beneficiaries
(ii) May endure forever
(iii) Enforced by the State AG
(b) Determining if it is a Charitable trust
(i) First look for an identifiable beneficiary, not allowed for charitable trusts
1. Example (not a charitable trust): trust to pay for the health care costs of X,
injured in the marathon bombing
2. Example (charitable trust): trust created for victims of the marathon
(ii) If it is not charitable, then determine if the trust is either:
1. Private (there is a particular individual as the beneficiary)
2. Purpose (not a particular beneficiary, but established for particular
noncharitable purposes; example: maintenance of a gravestone)
a. UTC allows for a purpose trust, but it must have someone who can
enforce it
b. A purpose trust can have a term of 21 years in some jurisdictions to deal
with the rule against perpetuities problems, not exempt like a charitable
(c) Charitable purpose:
(i) Restatement says it includes
1. relief of poverty, (ie soup kitchens and homeless shelters)
2. the advancement of education/religion
3. the promotion of health, (ie cancer research)
4. government or municipal purposes,
5. and other purposes the accomplishment of which is beneficial to the
(ii) the donor may give the trustee discretion to choose the charitable purpose
(iii) mixed charitable purposes: a trust cannot have mixed charitable and non-
charitable purposes unless the trust can be divided into separate shares for each
1. example: income to X for life, remainder to charity Y

(2) Cy Pres: if a charitable trusts purpose becomes illegal, impossible, or impracticable, the
court will modify the trust rather than let it fail
(a) The longer the trust goes on, the more likely the court will allow modification
(b) Traditional law: the court must find that the donor had a general rather than
specific charitable intent before it can apply cy pres
(i) Nehers Will, The court applied the traditional rule loosely and found that there
was a general intent because the town could not afford to build a hospital and
the needs were already met by a nearby township.
(c) UTC: there is a presumption that the donor had a general charitable intent for the
purpose of cy pres
(i) UTC applies equitable deviation to charitable and other purpose trusts, but the
traditional rule is still cy pres.
(d) Wasteful trusts
(i) traditionally, the court will not apply cy pres if the charitable trust is wasteful
(ii) Strong trend: UTC and many states now apply cy pres when the particular
charitable purpose becomes wasteful
1. The court will not consider wasteful in terms of efficiency of the funds, but
rather considers the trust fund having surplus funds in the account wasteful.
(e) Discriminatory trusts: not permissible, the court will apply cy pres to remove the
discriminatory provisions. If that cannot be done, the property will be held in
resulting trust for the settlors heirs
vii) Construction of Future Interests in Trusts
(1) Majority: a future interest in a trust is considered vested when the trust is created
(a) Rationale: There is a general preference for vested interests because they are more
marketable and economic
(b) Because the future interest is vested, it may be freely alienable, except if there is a
spendthrift clause in it. See Estate of Gilbert
(2) Requiring Survival until Distribution means that the interest is not vested until
something else occurs
(a) Traditional no implied condition of survival rule states that if a remainder
beneficiary dies before a life tenant, the remainder interest passes as part of the
predeceased beneficiarys estate (see Tait v. Community First)
(b) UPC changes the traditional rule and extends antilapse statutes to trust instruments
(i) All future interests are contingent on B surviving until the date of distribution
(ii) if remainder B does not survive, then the descendants of B take in an antilapse
type way
1. differs from the traditional rule because the traditional rule allows it to go
to the Bs estate, may have a different effect if there is a Will or other
nonprobate device in place for B
(iii) if the remainder B who predeceases distribution has no descendants, then the
interest reverts to the settlors heirs/devisees
(c) Multigenerational Class Gifts
(i) Single generational gift: no condition of survivorship implied (the traditional
rule) because all interests are vested
1. Example: Children means immediate offspring and is therefore a single
generational gift
(ii) Multigenerational gift: creates an implied condition of survivorship; interest is
not vested

1. Example: issues or descendants creates a multigenerational gift
2. Descendants means that later generations take by representation
c) Other Will Substitutes
i) Life Insurance: Shifts the economic risk of premature death to an insurance company
(1) Life insurance contracts have long been valid to transfer property on death without
Wills Act formalities
(2) Term life insurance:
(a) Simplest and most common form
(b) Contract that obligates the insurance company to pay the named beneficiary if the
insured dies within the policys term
(3) Whole life insurance:
(a) Combines life insurance with a savings plan
(b) Policy eventually becomes paid up to a point where there are no over premiums
ii) Pension/Retirement Accounts
(1) Defined Benefit Pension Plan: employee receives a regular check for life.
(a) At the employees death there is nothing left in the plan for the employee or the
spouse to pass on
(2) Defined Contribution Plan: the employer and the employee both make contributions to
a specific account for the employee.
(a) Plan includes investment decisions during employment
(b) After retirement, the employee controls the size and timing of distributions from
the account subject to certain distribution rules such as mandatory annual
(c) At the employees death, whatever is left in the account passes outside of probate
in accordance with the employees death beneficiary designation in the plan
(3) Individual Retirement Account (IRA): main form of retirement planning for self-
employed persons
(a) Similar to a defined contribution plan; key difference is that the IRA is governed by
the terms of the contract between the account holder and the custodial institution
not the employer
(b) The IRA holder controls the timing and amounts of withdrawals subject to
distribution rules similar to the defined contribution account
(c) At the IRA holders death, whatever is left passes outside of probate in accordance
with the holders beneficiary designation in the plan documents
iii) Bank Accounts
(1) Bank Accounts with POD/TOD designations
(a) Modern law has recognized a POD contract as valid despite noncompliance with the
Wills Act
(b) POD: payable on death, typically bank accounts
(c) TOD: transfer on death, typically for brokerage accounts and securities
(d) Totten Trust: create a savings account that says in trust for X. The court reads that
to mean the owner of the account has control, but on his death transfers it to the
beneficiary; structurally similar to a POD
(2) Joint Bank Accounts
(a) True joint/survivor account: shared equally with rights of survivorship

(i) When a joint account is established with funds from one person, a gift is
(ii) The presumption can be rebutted by clear and convincing evidence that the
donor lacked donative intent to make a gift (see Varela v. Bernachea)
(b) Convenience Account: arises in cases where the depositor loses capacity and puts
an adult child on the account to write checks on the depositors behalf
(i) Must determine if the decedent intended it to be a pure convenience account
(no right of survivorship) or a POD account (with rights of survivorship)
iv) Real Property Transfers
(1) Joint Tenancy: not really a will substitute because the joint tenant has present interest
in something, not at the transferors death
(2) Transfer on Death Deeds (strong trend)
(a) Revocable before death
(b) Example: I still own Blackacre, but when I die, X owns it.
v) Problems arising with the Other Wills Substitutes
(1) Changing Beneficiary Designations
(a) Majority Rule: a will is ineffective to change a life insurance or Pension/IRAs
beneficiary designation
(i) In order to change the beneficiary of the policy, the policy holder must conform
with the requirements in the trust document (see Cook v. Equitable Life
Assurance Society)
(b) Minority Rule: a change of beneficiary can in fact be accomplished in a will so long
as the language of the will is sufficient to identify the insurance policy/pension plan
involved and an intent to change the beneficiary (see Nunnenman v. Estate of
(2) Revocation on Divorce
(a) Traditionally, a will is revoked by law upon divorce, but for nonprobate assets it
depends on the jurisdiction
(b) Strong Trend: to include nonprobate assets in the state statute that revokes upon
(c) However, typically preempted by federal law:
(i) ERISA preempts a state regulation insofar as the state regulation relates to any
employee benefit plan, in that it has a connection with or reference to such a
plan. see Egelhoff
(ii) ERISA applies to qualified retirement plans, ie tax advantage plans, almost all
employer-sponsored retirement plans and 401Ks; but not to IRAs
1. The spouse must be named as the beneficiary if married unless the spouse
waives his/her rights in writing; revocation must be done in accordance with
the plan (provides for no room for revocation by law)
(3) Antilapse Statutes
(a) Many states apply their antilapse statutes to nonprobate transfers as well
(4) Revocation of Trust or Other Will Substitute
(a) Majority rule: look at the trust instrument for the correct revocation procedure
(i) No presumption based on a missing document revocation
(b) UTC Revocation (minority):
(i) Unless the terms of a trust expressly provide that the trust is irrevocable, the
settlor may revoke or amend the trust by:
1. Substantial compliance with a method provided in the terms of the trust

2. If the terms of the trust do not provide a method, then by
a. A later will or codicil that expressly refers to the trust, or
b. Any other method manifesting clear and convincing evidence of the
settlors intent
d) Other Estate Planning Tools
i) Powers of Appointment
(1) Purpose: to build flexibility into an estate plan, also provides for tax planning and asset
(2) Not governed by fiduciary standards; confers discretion to the done on how to disuse
the donors property
(3) Creation: donor must manifest an intent to create a power of appointment by either
express terms or by implication
(4) General Power of Appointment:
(a) The class of Bs can include the donee, their estate, and their creditors
(b) Considered an ownership equivalent for federal tax and creditor purposes
(i) Traditional rule: the donees creditors cannot reach the assets covered by an
unexercised general power of appointment if the power has been created by a
person other than the donee
(ii) Modern rule: general power of appointment is treated as an ownership interest
if it is presently exercisable
(c) Exception to general power: if the power is limited to an ascertainable standard
relating to health, education, support and maintenance, it will not be treated as a
general power
(5) Nongeneral Power of Appointment:
(a) The class of Bs cannot include the donee
(b) The assets are therefore not reachable by the donees creditors
(6) Time/Manner of exercise of power
(a) Testamentary power: the donee can only exercise the power by will
(b) Inter vivos/lifetime power: the donee can only exercise the power by deed during
the donees lifetime
(c) Presently exercisable power: may be exercised immediately
(d) Postponed power: only exercisable upon the occurrence of a specific event,
satisfaction of an ascertainable standard, or passage of a specified time
ii) Planning for Incapacity
(1) Property Management
(a) Conservatorship: court appointed person to manage the property of an
incapacitated person
(i) Two standards for appointment by the court:
1. Clear and convincing evidence that he person is unable to manage property
and business affairs because of an impairment in the ability to receive and
evaluate information and make decisions
2. Preponderance of the evidence that:
a. the person has property that will be wasted unless management is
b. Or money is needed to support the person
(b) Revocable Trust:
(i) The trust instrument may provide a mechanism for a successor trustee/co-
trustee who takes over when the settlor becomes incapacitated

1. Example: the trust instrument states that the trustee/settlor can be
removed by a unanimous vote of the spouse, children, and doctor
determining incapacity.
(c) Durable Power of Attorney:
(i) Ordinary POA terminates once the person becomes incapacitated at common
(ii) Durable POA (DPOA) terminates once the person dies, and is still effective
during incapacity
(iii) Springing POA springs into effect when/if the principle becomes
incapacitated, as defined by the document which creates the power
1. Example: a letter from a medical official declaring incapacity can spring the
power into effect
(iv) Creates an agency relationship; the agent is allowed to do all the things that the
principle could have done
(v) Scope: determined based on the document that authorizes the power of
attorney, can be extensive
1. Some actions the DPOA cannot take without express language in the
a. Example: the power to make a gift or to create a trust (see Kurrlemeyer)
(2) Healthcare
(a) Default Law: State statute gives priority to spouse, unless legally separated, then
adult children, then parent, then adult sibling.
(b) Advance Directives:
(i) Instructional (living will) Directives: specify either generally or by way of
hypothetical how one wants to be treated in end-of-life situations
(ii) Proxy directives: designate an agent to make health care decisions for the
(iii) Hybrid/combined directives: directs treatment and designates an agent to make
substituted decisions
5) Protection of the Spouse and Children
a) Intentional omission
i) Spouse: the Elective Share
(1) Two marital property systems exist:
(a) Separate Property at Common Law: spouses own everything separately during the
marriage (Separate Property States give the surviving spouse an elective/forced
(b) Community Property: spouses retain separate ownership of property brought to the
marriage, but they own all earnings and acquisitions from earnings during the
marriage in equal shares (No need for an elective share in community property
(2) Spouse can elect to take under the decedents will or to renounce the will and take a
fractional share of the decedents estate
(a) Typically 1/3 of the decedents probate property plus certain non-probate transfers
(3) Variations across state lines: Major differences are caused by the two purposes of the
elective share because it alters how the elective share is treated
(a) Two purposes:

(i) Economic Partnership: primary justification is that the surviving spouse
contributed to the decedents acquisition of wealth; justifies of the
decedents property
(ii) Support Obligation: justifies a smaller percentage than
(4) Forcing an Elective Share
(a) Subsequently deceased surviving spouse:
(i) Majority: the executor cannot force an elective share
(ii) Minority: the executor can force an elective share if under a partnership theory
(b) Incompetent Surviving Spouse:
(i) Majority: allows the representative to take into account all the facts and
circumstances before taking the elective share including the preservation of the
original estate plan.
(ii) Minority: a guardian can and should elect to take against the will if it is to the
surviving spouses economic benefit
(c) Abandonment:
(i) Minority: Elective share is denied to the spouse who abandoned or refused to
support the deceased spouse before death.
(d) Creditors of the surviving spouse:
(i) Most jurisdictions say that debtors cannot be forced to take the elective share
by their creditors
(ii) On the other hand, the value of the elective share will be counted toward social
security availability and Medicaid as resources when determining eligibility
(5) Elective Share and nonprobate property:
(a) Traditional rule: can only take from the probate estate
(b) Majority rule: most states allow revocable trust assets to be included; some might
include all other nonprobate assets
(i) Case law responsible for the change
1. Massachusetts (evolution)
a. Legislature meant probate estate, cannot take from nonprobate assets,
see Kerwin v. Donaghy (1945)
b. If the deceased spouse had complete control over the assets in the inter
vivos trust it can be reached, see Sullivan v. Burkin (1984)
c. If the trust was created by a 3P, it cannot be reached despite the fact
that the decedent had complete control over the assets, see Bongaards
v. Millen (2003)
(ii) Other judicial approaches:
1. Illusory transfer test: if the inter vivos trust was established during the
marriage and was illusory it is invalid and counts as part of the decedents
assets subject to the elective share
2. Intent to defraud test: determine whether the decedent intended to
defraud his surviving spouse of her elective share (rests on subjective
(iii) Statutory Reform: States attempted to create objective criteria for determining
which nonprobate transfers are subject to the elective share
(6) Waiver of elective share by Marital Agreement
(a) Premarital agreements are uniformly enforceable
(i) Unenforceable if the agreement was either:
1. Not voluntary; or

2. Was both unconscionable when executed and the party did not have
reasonable disclosure of the other parties finances
(ii) Uniform Post Marital Agreement Act (2012 Enactment) Expressly validates
postnuptial agreements
1. A marital agreement is unenforceable if:
a. The partys consent was involuntary due to duress
b. The party did not have access to independent legal representation
c. The agreement did not include a notice of waiver of rights in plain
d. The party did not receive adequate financial disclosure
i. A marital agreement is enforceable if the party has opportunity to
investigate the assets but did not do so, see Reece v. Elliot
ii) Intentional Omission of a Child
(1) American Law: no statutory protection for the disinherited child but doing so invites a
will contest by that child so prepare for it.
(2) Civil Law: has a forced share for children (in Louisiana)
b) Unintentional omission
i) Spouse unintentionally omitted
(1) Common law/majority rule: marriage revokes a premarital will
(2) Statutory rule: state statutes give the surviving spouse not considered in the premarital
will an interest in the estate as if it had gone through intestacy
(a) Different policy concern from the elective share; here, trying to effectuate Ts intent
because if T remembered, T would have written a new will for the spouse.
(3) The omitted spouse carries a rebuttable presumption that it was unintentional
ii) Child: Pretermitted Heir Statutes: designed to prevent unintentional disinheritance of a child
(1) Majority: statute only applies to children born after the execution of the will
(2) UPC version (minority) provides for children born after the execution of a will too
(a) If T fails to provide for any of his/her children born or adopted after the execution of
the will, the omitted after-born child receives a share of the estate as follows
(i) If T had no child when drafting the will the afterborn child receives a share that
they would have if T had died intestate
1. Exception: unless the will devises all/substantially all of the estate to the
other parent of the omitted child (Gray v. Gray)
(3) Does not apply if it appears that the omission was intentional or if the T provided for the
after-born child by transfer outside of the will
(4) Pretermitted heir statutes cannot nonprobate assets, see Estate of Jackson
(5) The problem can be avoided by providing for descendants through representation in
drafting the will/nonprobate device