Wills, Trusts, and Estate Administration for the Paralegal

by Hower, Dennis R.

• ISBN13: 9780314667892
• ISBN10: 031466789X
• Format: Hardcover
• Copyright: 1990-11-01
• Publisher: West Group

Summary

"Wills, Trusts and Administration, 5th Edition," is an excellent resource for anyone interested in this area of law. Written primarily for legal students in universities, colleges, community colleges, business schools, and technical training programs, this updated fifth edition is also useful for bank trust officers and individuals appointed to administer an estate.

Table of Contents

Preface	p. xv
The Purpose and Need for a Will	p. 1
An Introduction to Wills	p. 2
Statutory Requirements for a Will	p. 2
Basic Terminology Related to Wills	p. 3
The Purpose of Wills	p. 5
Funeral and Burial Plans and the Letter of Instructions	p. 7
Apportionment for Death Taxes	p. 12
Property Distributions	p. 12
Provisions for Family Members	p. 13
Appointment of Fiduciaries: Guardians and Conservators	p. 14
Creation of Testamentary Trusts	p. 16
Selection of Personal Representative	p. 18
Will Substitutes	p. 19
Checklist to Determine the Need for a Will	p. 20
Basic Requirements for a Legal Will--A Review	p. 21
The Need for a Will--A Conclusion	p. 21
The Concept of Property Related to Wills, Trusts, and Estate Administration	p. 24
Property: Terminology and Classification	p. 25
Real Property	p. 25
Personal Property	p. 28
Probate Property or Probate Estate	p. 30
Nonprobate Property or Nonprobate Assets	p. 31
Statutes that Govern the Passage of Property	p. 32
Forms of Property Ownership	p. 32
Tenancy in Severalty--Ownership by One Person	p. 34
Forms of Concurrent Ownership--Ownership by Two or More Persons	p. 34
Estates in Real Property	p. 56
Freehold Estates	p. 57
Leasehold Estates	p. 66
The Participants and the Proper Court	p. 69
The Participants	p. 70
The Personal Representative	p. 70
The Attorney	p. 75
The Paralegal or Legal Assistant	p. 77
The Probate Court	p. 78
The Registrar	p. 79
The Clerk or Court Administrator	p. 80
Terminology Related to Probate Court Proceedings	p. 81
Probate	p. 81
Jurisdiction	p. 81
Domicile	p. 82
Venue	p. 84
Ancillary Administration or Ancillary Probate Administration	p. 85
The Law of Succession: Death Testate or Intestate	p. 89
Death with a Will--Testacy	p. 90
Terminology Related to Wills	p. 90
Types of Dispositions--Gifts Made in a Will	p. 97
Use of Testate Terminology	p. 102
The Facts	p. 102
Death without a Will--Intestacy	p. 106
Terminology Related to Intestacy	p. 106
Intestate Succession Laws	p. 109
Rights of Family Members to a Decedent's Estate	p. 117
Rights of a Surviving Spouse	p. 117
Effect of Divorce and Marriage on a Spouse's Rights	p. 122
Other Spouses' Rights Before or After Marriage	p. 123
Rights of Children (Issue)	p. 125
Additional Rights or Protection for a Surviving Spouse and Children	p. 129
Use of Intestate Terminology	p. 134
The Facts	p. 134
Advantages and Disadvantages of a Will	p. 137
Advantages of a Will	p. 137
Disadvantages of a Will	p. 138
Wills: Validity Requirements, Modification, Revocation, and Contests	p. 141
Requirements for the Creation of a Valid Will	p. 142
Intent of the Testator	p. 143
Capacity of the Testator	p. 143
Formal Requirements of a Will	p. 145
Modification of a Will--Codicil v. New Will	p. 154
Revocation and Rejection of a Will	p. 156
Revocation by Physical Act	p. 156
Revocation by Operation of Law	p. 159
Revocation by Subsequent Writing	p. 160
Will Contests	p. 161
Who Can Contest a Will	p. 161
Grounds for Contesting a Will	p. 162
In Terrorem or "No Contest" Clause--A Forfeiture Clause	p. 166
Preparation to Draft A Will: Checklists and the Conference with the Client	p. 169
The Conference with the Client: Initial Interview, Checklists, and Other Matters	p. 170
Initial Interview	p. 171
Use of Checklists to Obtain Basic Data	p. 172
Preliminary Tax Advice and Other Matters	p. 186
Spouse's Right of Election--A Review	p. 187
Guidelines for Preparation of a Will	p. 189
Avoid the Use of Preprinted Will Forms	p. 189
Use the Same Word-Processing Software and Computer Printer Typeface	p. 193
Use Words That Avoid Ambiguity	p. 194
Use Simple Language	p. 194
Place Small Estates in Joint Tenancy	p. 194
Sign the Will According to State Statutes, but Do Not Sign Copies	p. 194
Include a Residuary Clause	p. 195
Choose Witnesses Carefully	p. 195
Tell Witnesses What Might Be Expected of Them	p. 195
Do Not Make Additions after Execution	p. 195
Use Computer Technology for All Changes	p. 195
Avoid Erasures and Corrections	p. 196
Word Conditions to Avoid Ambiguity	p. 196
Include Full Data on Beneficiaries and Devisees	p. 198
Give the Client a Rough Draft	p. 198
Final Draft and Execution of A Valid Will	p. 200
Contents of a Standard Will	p. 201
Introductory or Exordium and Publication Clause	p. 202
General Revocation Clause	p. 203
Provision for Payment of Debts and Funeral Expenses	p. 203
Instructions for Funeral and Burial	p. 204
Specific Testamentary Gifts	p. 207
Provision for Residue of Estate	p. 211
Appointment of Personal Representative	p. 212
Appointment of Personal and/or Property Guardian	p. 214
Simultaneous Death Clause	p. 216
Testamentary Trust Clause	p. 217
Testimonium Clause	p. 218
Testator's Signature	p. 219
Attestation Clause of Witnesses	p. 220
Witnesses' Signatures and Addresses	p. 220
Sample Preliminary Will	p. 221
Additional Nontestamentary Documents	p. 224
Self-Proving Affidavit Clause That Creates a Self-Proved Will	p. 224
Letter of Instructions	p. 228
Power of Attorney	p. 228
Right to Die Laws and Related Advance (Medical) Directive Documents	p. 228
Where to Keep the Will	p. 240
Introduction to Trusts	p. 244
Terminology Related to Trusts	p. 245
Use of Trust Terminology	p. 247
The Essential Elements of a Trust	p. 250
The Settlor: The Creator of the Trust	p. 251
The Trustee: The Fiduciary and Administrator of the Trust	p. 253
The Beneficiary: The Recipient of the Trust Property or Benefits	p. 267
Trust Property	p. 270
Termination of Trusts	p. 272
Classification of Trusts, the Living Trust, and Other Special Trusts	p. 275
Classification of Trusts	p. 276
Express Trusts--Private versus Public (Charitable)	p. 276
Express Trusts--Active versus Passive	p. 280
Express Trusts--Inter Vivos (Living) versus Testamentary	p. 281
Implied Trusts--Resulting and Constructive	p. 283
Miscellaneous Trusts	p. 287
The Purposes of Trusts	p. 290
Legal Restrictions	p. 291
Informal and Incomplete Creation of a Trust	p. 293
Failure to Make Intentions Clear	p. 294
Failure to Name or Identify the Beneficiary	p. 295
Failure to Name a Trustee or a Successor Trustee	p. 295
Living (Inter Vivos) Trusts	p. 296
Revocable Living Trusts	p. 297
Transfer of Trust Property to a Living Trust	p. 298
Advantages of a Revocable Living Trust as a Substitute for a Will	p. 303
Disadvantages of a Revocable Living Trust	p. 305
Pour-Over Wills	p. 305
Irrevocable Living Trusts	p. 307
Drafting an Irrevocable Living Trust	p. 309
The Facts	p. 309
Using a Checklist	p. 310
Estate Planning and Long-Term Care	p. 317
The Estate Plan	p. 318
Periodic Review	p. 321
Documents Used to Create the Estate Plan	p. 322
Wills	p. 322
Trusts	p. 322
Estate Tax-Saving Devices That Increase Deductions from the Gross Estate	p. 323
The Marital Deduction	p. 323
The Charitable Deduction	p. 324
Estate Tax-Saving Devices That Reduce the Gross Estate	p. 327
Gifts Made During the Donor's Lifetime--The Gift Tax Annual Exclusion	p. 327
Powers of Appointment	p. 329
Trusts That Qualify for the Marital Deduction or Avoid Multiple Taxation	p. 330
Life Insurance	p. 334
Postmortem Estate Planning	p. 339
Long-Term Care	p. 341
History and Development of Long-Term Care	p. 341
Need for Long-Term Care	p. 342
Resources Available to Help Pay Long-Term Care Expenses	p. 343
Need for Long-Term Care Insurance	p. 349
Long-Term Care Insurance	p. 350
Personal Representatives: Types, Pre-Probate Duties, and Appointment	p. 359
Types of Personal Representatives	p. 360
Introduction to Estate Administration: A Dialogue	p. 363
Preparation for Probate and Estate Administration--General Overview	p. 378
Pre-Probate Duties of the Personal Representative and Paralegal	p. 379
Appointment Procedure--The Beginning	p. 384
Probating (Proving) the Will or Granting Administration	p. 390
Probate and Estate Administration	p. 395
Probate or Estate Administration	p. 396
Small Estate Settlement and Administration	p. 398
Forms of Probate or Estate Administration	p. 403
Commencing Probate and Estate Administration Proceedings	p. 406
Probate Court Procedure	p. 416
Procedures Before Estate Distribution	p. 427
Procedures for Collecting Specific Estate Assets	p. 432
Distribution of the Estate and Payment of Claims	p. 442
The Final Account and Closing the Estate	p. 454
Special Probate Proceedings	p. 457
Limitations on and Liability of the Personal Representative	p. 459
Informal Probate Administration	p. 465
The Choice of Formal or Informal Probate	p. 466
Priority of Persons Seeking Appointment as Personal Representatives	p. 468
Application for Informal Probate and Appointment of Personal Representative	p. 468
Acceptance by the Registrar	p. 471
Notice Requirements	p. 472
Notice of Application for Informal Probate	p. 473
Notice of Application for Informal Appointment	p. 473
Demand for Notice of Order or Filing	p. 473
Method and Time for Giving Notice	p. 474
Duties and Powers of the Personal Representative in Informal Probate	p. 475
Notification to Devisees or Heirs and Creditors	p. 475
Payment of Creditors' Claims	p. 476
Inventory Property	p. 476
Hold and Manage the Estate	p. 476
Final Account and Closing the Estate	p. 477
Step-by-Step Procedures in Informal Probate	p. 479
Case Study	p. 479
Tax Considerations in the Administration of Estates	p. 489
Introduction to Tax Concerns	p. 490
General Tax Considerations	p. 493
Unified Credit (Applicable Credit Amount) and Unified Transfer Gift and Estate Tax Rates	p. 493
Calculating the Federal Estate Tax	p. 496
The Martial Deduction	p. 498
Creation of Trusts	p. 499
Lifetime Gifts	p. 500
Generation-Skipping Transfers and Their Tax Consequences	p. 504
Tax Returns	p. 506
Decedent's Final Income Tax Returns, Federal and State	p. 507
Fiduciary's Income Tax Returns, Federal and State	p. 509
Decedent's Gift Tax Returns, Federal and State	p. 512
Decedent's Estate Tax Returns, Federal and State	p. 512
State Inheritance Tax Return	p. 525
Ethical Principles Relevant to Practicing Legal Assistants	p. 529
Paralegals and Canons of Ethics	p. 530
Model Code Provisions Relevant to the Attorney-Paralegal Relationship	p. 532
Model Rules Provisions Relevant to the Attorney-Paralegal Relationship	p. 533
American Bar Association Committees Dealing with Legal Assistants	p. 533
Ethical Guidelines and State Action	p. 534
Professional Standards and Paralegal Associations	p. 534
Attorney-Client-Paralegal Issues	p. 540
Unauthorized Practice of Law	p. 541
Rules Protecting Client Confidences	p. 542
Appendixes
Sample Forms	p. 1
Sample Marital Deduction Testamentary Trust	p. 183
Uniform Probate Code	p. 188
Glossary	p. 1
Index	p. 1
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