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 Wills Trusts and Estates for Legal Assistants 6th Edition
Gerry W Beyer John K Hanft

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WILLS, TRUSTS, AND

ESTATES FOR

LEGAL ASSISTANTS
EDITORIAL ADVISORS

Rachel E. Barkow

Segal Family Professor of Regulatory Law and Policy

Faculty Director, Center on the Administration of Criminal Law

New York University School of Law

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law

University of California, Berkeley School of Law

Richard A. Epstein

Laurence A. Tisch Professor of Law

New York University School of Law

Peter and Kirsten Bedford Senior Fellow

The Hoover Institution

Senior Lecturer in Law

The University of Chicago

Ronald J. Gilson

Charles J. Meyers Professor of Law and Business

Stanford University

Marc and Eva Stern Professor of Law and Business

Columbia Law School

James E. Krier

Earl Warren DeLano Professor of Law

The University of Michigan Law School

Tracey L. Meares

Walton Hale Hamilton Professor of Law

Director, The Justice Collaboratory

Yale Law School

Richard K. Neumann, Jr.

Alexander Bickel Professor of Law

Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff

John L. Gray Professor of Law

Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law

Faculty Co-Director, Stanford Criminal Justice Center

Stanford Law School

 PARALEGAL SERIES

WILLS, TRUSTS, AND

ESTATES FOR LEGAL

ASSISTANTS

SIXTH EDITION

Gerry W. Beyer

Governor Preston E. Smith Regents Professor of Law

Texas Tech University School of Law

John K. Hanft, retired

San Francisco State University

College of Extended Learning

Paralegal Studies Program

Copyright © 2019 CCH Incorporated.

Published by Wolters Kluwer in New York.

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Library of Congress Cataloging-in-Publication Data

Names: Beyer, Gerry W., author. | Hanft, John K., author.

Title: Wills, trusts, and estates for legal assistants / Gerry W. Beyer, Governor

Preston E. Smith Regents Professor of Law, Texas Tech University School of Law;

John Hanft, retired, San Francisco State University College of Extended Learning,

Paralegal Studies Program.

Description: Sixth edition. | New York : Wolters Kluwer, [2019] | Series: Aspen college

series | Includes bibliographical references and index. |Summary: “Paralegal

textbook for wills, trusts, and estates course for paralegal students” — Provided

by publisher.

Identifiers: LCCN 2019028444 (print) | LCCN 2019028445 (ebook) | ISBN

9781543813081 (paperback) | eISBN: 978-1-5438-1510-8

Subjects: LCSH: Wills — United States. | Trusts and trustees — United States. |

Estate planning — United States. | Legal assistants — UnitedStates —

Handbooks, manuals, etc.

Classification: LCC KF755 .B49 2019 (print) | LCC KF755 (ebook) | DDC 346.7305 —

dc23

LC record available at https://lccn.loc.gov/2019028444

LC ebook record available at https://lccn.loc.gov/2019028445

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 p. vii

SUMMARY OF CONTENTS

Contents
Preface
Acknowledgments

p. vii

p. viii

CHAPTER 1 INTRODUCTION AND OVERVIEW

INTESTATE SUCCESSION
PART ONE

CHAPTER 2 DESCENT AND DISTRIBUTION

CHAPTER 3 TREATMENT OF CERTAIN CATEGORIES OF POTENTIAL

HEIRS

CHAPTER 4 OTHER INTESTATE SUCCESSION ISSUES

WILLS
PART TWO

CHAPTER 5 REQUIREMENTS FOR A VALID WILL

CHAPTER 6 CHANGING CIRCUMSTANCES AFTER WILL EXECUTION

— PROPERTY

CHAPTER 7 CHANGING CIRCUMSTANCES AFTER WILL EXECUTION

— PERSONS

CHAPTER 8 REVOCATION OF WILLS

CHAPTER 9 INTERPRETATION AND CONSTRUCTION

CHAPTER 10 WILL CONTESTS

CHAPTER 11 OTHER WILL ISSUES

ESTATE ADMINISTRATION
PART THREE

CHAPTER 12 ESTATE ADMINISTRATION

NONPROBATE TRANSFERS
PART FOUR

CHAPTER 13 REASONS PEOPLE USE NONPROBATE TRANSFERS

CHAPTER 14 INTER VIVOS TRANSFERS

CHAPTER 15 CO-OWNERSHIP OF PROPERTY

CHAPTER 16 MULTIPLE-PARTY ACCOUNTS

CHAPTER 17 CONTRACTS

TRUSTS
PART FIVE

CHAPTER 18 INTRODUCTION TO TRUSTS

CHAPTER 19 TRUST CREATION

CHAPTER 20 TRUST ADMINISTRATION

CHAPTER 21 TRUST ENFORCEMENT

CHAPTER 22 RESULTING TRUSTS

CHAPTER 23 CONSTRUCTIVE TRUSTS

 OTHER-ESTATE PLANNING
PART SIX
CONCERNS

CHAPTER 24 WEALTH TRANSFER TAXATION

CHAPTER 25 DISABILITY AND DEATH PLANNING

CHAPTER 26 MALPRACTICE AND PROFESSIONAL RESPONSIBILITY

Glossary
Sample Will with Testamentary Trust Form
Bibliography
Table of Uniform Probate Code (UPC) Provisions
Table of Uniform Trust Code (UTC) Provisions
Table of Internal Revenue Code (IRC) Provisions
Index

p. viii
 p. ix

CONTENTS

Preface
Acknowledgments

CHAPTER 1 INTRODUCTION AND OVERVIEW

§1.1 Brief History of Property Transference When Owner Dies

§1.2 Basic Terminology Used in This Book

§1.2.1 Intestate Succession Terms

§1.2.2 Wills Terms

§1.2.3 Trusts Terms

§1.2.4 General Terms

§1.3 Determination of Applicable Law

§1.3.1 Generally

§1.3.2 Ownership and Marital Rights

§1.3.3 Real versus Personal Property

§1.4 The “Big Picture”

PART ONE INTESTATE SUCCESSION

CHAPTER 2 DESCENT AND DISTRIBUTION

§2.1 Reasons Most Individuals Die Intestate

§2.1.1 Lack of Property

§2.1.2 Unaware of Importance

§2.1.3 Indifference
 §2.1.4 Cost

§2.1.5 Time and Effort

§2.1.6 Complexity

§2.1.7 Admission of Mortality

§2.1.8 Reluctance to Reveal Private Facts

§2.2 Historical Development of Descent and Distribution

§2.3 Surviving Spouse

§2.3.1 Protection at Common Law — Real Property

§2.3.2 Protection at Common Law — Personal Property

§2.3.3 Modern Law

§2.3.4 Community Property Jurisdictions

§2.4 Descendants

§2.4.1 Basic Procedure for Determining Shares of

Descendants

§2.4.2 Per Stirpes (by Right of Representation)

§2.4.3 Per Capita with Representation

§2.4.4 Per Capita at Each Generation

p. ix

p. x

§2.5 Ancestors and Collaterals

§2.5.1 Parents and First-Line Collaterals

§2.5.2 Grandparents, Second-Line Collaterals, and More

Distant Relatives

§2.6 Escheat

CHAPTER 3 TREATMENT OF CERTAIN CATEGORIES OF POTENTIAL

HEIRS

§3.1 Posthumous or Afterborn Heirs

§3.2 Adopted Individuals

§3.2.1 Inheritance Rights of Adopted Children

§3.2.2 Inheritance Rights of Adoptive Parents

 §3.2.3 Inheritance Rights of Biological Parents

§3.2.4 Adoption by Estoppel or Equitable Adoption

§3.2.5 Adult Adoption

§3.3 Non-Marital Children

§3.4 Children from Alternative Reproduction Technologies

§3.5 Stepchildren

§3.6 Half-Blooded Collateral Heirs

§3.7 Non-United States Citizens

§3.8 Unworthy Heirs

§3.8.1 Forfeiture

§3.8.2 Civil Death

§3.8.3 Corruption of the Blood

§3.8.4 Heir Killing Intestate

§3.8.5 Suicide

§3.8.6 Parent’s Failure to Recognize or Support Child

§3.8.7 Adultery

§3.8.8 Abuse

§3.8.9 Lack of Capacity Marriages

§3.9 Non-Marital Partners

CHAPTER 4 OTHER INTESTATE SUCCESSION ISSUES

§4.1 Ancestral Property

§4.2 Advancements

§4.3 Survival

§4.4 Disclaimers

§4.4.1 Reasons Heir May Disclaim

§4.4.2 Requirements of a Disclaimer

§4.4.3 Distribution of Disclaimed Property

§4.5 Assignment or Release of Expectancy to Inherit

§4.6 Equitable Conversion

§4.7 Liability for Debts of Predeceased Intermediary

§4.8 Heir Designation

§4.9 Choice of Law

PART TWO WILLS

CHAPTER 5 REQUIREMENTS FOR A VALID WILL

§5.1 Legal Capacity

§5.1.1 Age

p. x

p. xi

§5.1.2 Marital Status

§5.1.3 Military Service

§5.2 Testamentary Capacity (Sound Mind)

§5.2.1 Elements of Testamentary Capacity

§5.2.2 Temporal Nature of Testamentary Capacity

§5.2.3 Testamentary Capacity Compared to Other Types of

Capacity

§5.2.4 Aging Process

§5.2.5 Individuals with Questionable Capacity

§5.2.6 Demonstrating Lack of Capacity

§5.3 Testamentary Intent

§5.4 Formalities

§5.4.1 Purposes

§5.4.2 Attested Wills

§5.4.3 Holographic Wills

§5.4.4 Nuncupative Wills

§5.4.5 Soldiers’ and Seamen’s Wills

§5.4.6 Statutory Wills

§5.4.7 Notarized Wills

CHAPTER 6 CHANGING CIRCUMSTANCES AFTER WILL EXECUTION —

PROPERTY

§6.1 Classification of Testamentary Gifts

§6.1.1 Specific Gifts

 §6.1.2 General Gifts

§6.1.3 Demonstrative Gifts

§6.1.4 Residuary Gifts

§6.1.5 Type of Beneficiary

§6.2 Ademption by Extinction

§6.3 Ademption by Satisfaction

§6.4 Changes in Value

§6.4.1 Appreciation and Depreciation

§6.4.2 Corporate Securities

§6.4.3 Interest on Legacies

§6.5 Exoneration

§6.6 Abatement

§6.7 Tax Apportionment

CHAPTER 7 CHANGING CIRCUMSTANCES AFTER WILL EXECUTION —

PERSONS

§7.1 Marriage of Testator

§7.1.1 Common Law Marital Property States

§7.1.2 Community Property Marital Property States

§7.1.3 Change in Domicile

§7.2 Divorce of Testator

§7.3 Pretermitted Heirs

§7.3.1 Defined

§7.3.2 Excluded Situations

§7.3.3 Determination of Share

p. xi

p. xii

§7.4 Death of Beneficiary — Lapse

§7.4.1 Situations Causing Lapse

§7.4.2 Distribution of Lapsed Gifts — Generally

§7.4.3 Anti-Lapse Statutes

 §7.4.4 Partial Lapse in Residuary Clause

§7.5 Failure of Charitable Gift — Cy Pres

§7.6 Survival

CHAPTER 8 REVOCATION OF WILLS

§8.1 Revocation by Operation of Law

§8.1.1 Marriage of Testator

§8.1.2 Divorce of Testator

§8.1.3 Pretermitted Heirs

§8.1.4 Death of Beneficiary

§8.1.5 Beneficiary Killed Testator

§8.1.6 Alienation

§8.1.7 Passage of Time

§8.1.8 Change in Feelings toward Beneficiary

§8.2 Revocation by Physical Act

§8.2.1 Requirements

§8.2.2 Partial Revocation

§8.3 Revocation by Subsequent Writing

§8.3.1 Express Revocation

§8.3.2 Revocation by Inconsistency

§8.3.3 New Will or Codicil?

§8.4 Presumptions

§8.4.1 The Presumption of Nonrevocation

§8.4.2 The Presumption of Revocation

§8.5 Revival

§8.6 Conditional Revocation

§8.6.1 Express Condition

§8.6.2 Implied Condition — Dependent Relative Revocation

§8.7 Multiple Originals

CHAPTER 9 INTERPRETATION AND CONSTRUCTION

§9.1 Ambiguity

§9.1.1 Patent (Obvious) Ambiguity

 §9.1.2 Latent (Hidden) Ambiguity

§9.1.3 No Apparent Ambiguity

§9.2 Integration

§9.2.1 External Integration

§9.2.2 Internal Integration

§9.3 Incorporation by Reference

§9.3.1 Requirements

§9.3.2 Validity of Incorporated Writing

§9.3.3 Republication

§9.4 Facts of Independent Significance

§9.5 Tangible Personal Property Document

§9.6 Pour-Over Provisions

p. xii

p. xiii

§9.7 Precatory Language

§9.8 Class Gifts

§9.8.1 Defined

§9.8.2 Time at Which Class Membership Determined

§9.8.3 Types of Individuals Included in Classes

§9.9 Dead Person’s Statute

§ 9.10 Tax-Based Modifications

CHAPTER 10 WILL CONTESTS

§10.1 Failure to Satisfy Requirements of a Valid Will

§10.2 Insane Delusions

§10.2.1 Defined

§10.2.2 Nexus between Delusion and Will

§10.3 Undue Influence

§10.3.1 Defined

§10.3.2 Demonstrating Undue Influence

§10.3.3 Attorney as Will Drafter and Beneficiary

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