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WILLS-TRUSTS-AND-ESTATES-OUTLINE
Class 1: Intro
Representing Individual Clients
• Estate Planning
o Anticipation of death
o Drafting different forms of transfer instruments
o Tax, marital, business succession, and retirement planning
o Charitable planning
• Estate administration
• Trust administration
• Representation of fiduciaries and beneficiaries
Class 2: Anticipating Death
Death & Dying: The Physical Act of Death and Planning for Incapacity
• Terminology:
o Intestate
o Testate
• Probate vs. Non-Probate Property
o Probate property – in decedent’s name (sole or as tenant-in-common)
passes
through probate by will or intestacy
o Non-Probate property (unless payable to estate) – joint property
(joint tenancy or TIE), life insurance, retirement benefits (IRAs or
pensions), property in trusts, payable on death accounts (PODs)
• Planning for Incapacity – Health Care Decision-Making and Advance
Directives
o Cruzan – “Persistent vegetative state”
▪ Protected liberty interest in refusing unwanted medical
treatment, including food and water
▪ State can impose enhanced standard of proof to “protect” the
individual
o Schiavo
• Advance Directives
o “living will”
▪ Individual instructions or instructional directive
• Specifies treatment in end-of-life situation or in
,WILLS-TRUSTS-AND-ESTATES-
OUTLINE
the event of incompetence
• Speaks directly for the patient
• Tries to anticipate medical scenario and identify type of
care
o Health Care Power of Attorney / Proxy
▪ Naming someone to make health decisions for you
▪ The agent acts for the principal
▪ Will not trump a living will
,WILLS-TRUSTS-AND-ESTATES-
OUTLINE
▪ Kicks in when principal is unable to make decisions for herself
o What happens in absence of written documentation?
▪ Statutory presumptions as to surrogate decision-maker
• Property Management and Preservation – Planning for Incapacity
o Guardianship or conservator
▪ Court supervised
▪ Lots of abuse
o Other options
▪ Living (aka revocable) trust
• Provides greatest flexibility
• Some people resist the complexity
▪ Durable Financial Power of Attorney
• Very practical BUT immediately effective
• Agent’s power continues even upon principal’s
incapacity (but terminates on death)
o In re Winthrop
▪ Professional Responsibility and Fiduciary Duties
• Was the agent’s conduct wrongful?
• Was the attorney’s? (Winthrop)
o Breach of fiduciary duties
o Conflicted duties between clients
o Failure to disclose/deceit
• Conflict of interest under Rule 1.7 (b)
o How extensive should an agent’s powers be?
▪ Lack of oversight (and failure to revoke) can lead to abuse
▪ Questions to consider:
• Should the agent be given the power to make gifts
and/or fund a trust?
• Should the agent be given the power to revoke a trust?
• Are there ways to limit the agent’s power without
making the POA extremely narrow?
o Springing power of attorney
Class 3: Survivorship Taxes and Inheritance
Survivorship; Transfer Taxes
• How do you determine the order of death?
o Who is a “surviving spouse,” which spouse’s estate governs?
▪ Uniform Simultaneous Death Act
▪ Survivorship rules determine which spouse’s estate governs
• Janus v. Tarasewicz
▪ UPC 2-104: Survival; mirrors USDA
• Must survive by 120 hours
, WILLS-TRUSTS-AND-ESTATES-
OUTLINE
• Clear and convincing evidence
• Death is irrevocable
• Federal “wealth” taxes
o Estate, gift and inheritance taxes = transfer taxes
• Terminology
o The Unified Credit
▪ Each estate entitled to a “credit” equal to the estate tax on the
exemption amount
▪ Property passing to spouse does not count
• “credit shelter” trusts and the marital deduction
o Does having a trust save taxes?
▪ Revocable trusts:
• Treated as part of the settlor’s gross estate, as if the
settlor owned the property outright
• Retained control
▪ Irrevocable trusts:
• If the settlor parts with all “interest and control”
over the property, treated like an outright gift
• Can avoid tax on the appreciation
• Donative Freedom
o Freedom of disposition
▪ The right to give away your property, in life or at death,
including:
• Who gets it
• The from in which they get it
• Right to give another the power to make these choices
after your death
▪ The right to transmit via will or will substitute
• Hodel v. Irving (1987 predecessor to Youpee)
o Unconstitutional to restrict right to transmit
property
• Babbitt v. Youpee
Class 4: Donative Freedom
• Introducing Inheritance: Donative Freedom
o Donative freedom: the donor’s right to control property she possesses
and earns
balanced against the recipient’s right to receive wealth not earned
o Why should or shouldn’t we allow the unfettered right to transmit
property at death?
▪ In re Estate of Max Feinberg
• Public policy
▪ The problem of the dead hand
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