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Chapter 51
Wills and Trusts
INTRODUCTION
This chapter is concerned with the law related to wills and trusts. On death, title to a decedent’s property
must vest in someone. A decedent can direct the passage of property after death by will, subject to certain limitations
imposed by the state. If no valid will has been executed, state law prescribes the distribution of property. If no heirs
or kin can be found, the property escheats. Property can also be transferred through a trust. These are all part of
estate planning, which can also involve the considerations in the section titled “Elder Law.”
CHAPTER OUTLINE
I. Wills
The property of a person who dies intestate, and without heirs, passes to the state. A will must follow exactly
the requirements of the appropriate state’s statutes to be effective. Besides distributing property, a will can
appoint a guardian and a personal representative.
A. TERMINOLOGY OF WILLS
• Testator—a person who makes a will.
• Probate court—a court that oversees the administration of a will.
• Executor—a person or party appointed by a testator in a will to administer the estate.
2 UNIT TEN: PROPERTY AND ITS PROTECTION
• Administrator—a person or party appointed by a court for a decedent who dies without a will to
administer the estate.
• Devise—a gift of real estate by will.
B. LAWS GOVERNING WILLS
Although the Uniform Probate Code (UPC) has been adopted in about a third of the states, state laws
vary widely
C. TYPES OF GIFTS
Gifts may be specific or general.
• Devise—a gift of real estate by will.
• Devisee—the recipient of a devise.
• Bequest or legacy—a gift of personal property under a will.
• Legatee—the recipient of a legacy.
1. Specific and General Devises or Bequests
• A specific devise or bequest (legacy) describes particular property.
• A general devise or bequest (legacy) describes property generally—“all my land” or “$10,000,”
for example.
2. Residuary Clause
The residuary (assets remaining after specific gifts have been made and debts paid) are distributed
to the surviving spouse, descendants, or others according to a residuary clause, or if there is none,
the state’s intestacy laws.
3. Abatement
If the assets are insufficient to pay all general bequests, the legatees receive reduced benefits.
4. Lapsed Legacies
This occurs if a legatee dies before a legacy is paid.
D. REQUIREMENTS FOR A VALID WILL
1. Testamentary Capacity and Intent
A testator must be of legal age (usually eighteen) and sound mind—able to formulate and
comprehend a plan for the disposition of property—when a will is made. A valid will represents the
maker’s intent. The testator must—
• Know the nature of the act of making a will.
• Comprehend and remember family and others for whom the testator has affection.
a. Undue Influence
If a decedent’s plan of distribution was the result of improper pressure by another person
overriding the maker’s intent, the will is invalid. Undue influence may be inferred when
CHAPTER 51: WILLS AND TRUSTS 3
relatives are overlooked in favor of a sole, nonrelative beneficiary who was in a position to
influence the making of the will.
b. Disinheritance
A testator is not required to give property to his or her family. But laws protect minors from the
loss of a residence, and most states prevent accidental disinheritance.
ADDITIONAL CASES ADDRESSING THIS ISSUE —
The Testator’s Intent
Cases determining the testator’s intent include the following.
• In re Estate of Wright, 829 So.2d 1274 (Miss.App. 2002) (the testator’s nephew was the intended
beneficiary of the settlement proceeds of a lawsuit initiated by the testator, who, when she made her will, was
aware of the occurrence on her property that precipitated the suit and bequeathed her interest in the property
to the nephew without amending the will to direct any payments in the suit to someone other than the
nephew).
• Painter v. Coleman, 211 W.Va. 451, 566 S.E.2d 588 (2002) (rejecting the language in a will was nec-
essary to give effect to the testator’s intent when a spouse deleted a clause that would have devised her
estate to her spouse in case of their simultaneous deaths—the other spouse had already died—and that
deletion would have forced the entire estate to pass intestate, which was not the surviving spouse’s intent).
ADDITIONAL BACKGROUND—
Testamentary Intent
Testamentary intent is the most important requirement for a valid will and any changes to it. An example
that underscores this importance is the following 1990 revision to the Uniform Probate Code. The change
allows a probate court to excuse a harmless error in complying with the requirements for executing or
revoking a will in the face of evidence of the testator’s intent.
ARTICLE II. INTESTACY, WILLS, AND DONATIVE TRANSFERS (1990)
PART 5. WILLS, WILL CONTRACTS, AND CUSTODY AND DEPOSIT OF WILLS
§ 2–503. Writings Intended as Wills, etc.
Although a document or writing added upon a document was not executed in compliance with Section 2–502,
4 UNIT TEN: PROPERTY AND ITS PROTECTION
2. Writing Requirements
A written document is generally required, though it can be informal. In some cases, an oral will,
such as a nuncupative will, is valid, particularly if made during the last illness of the testator.
3. Signature
4. Witnesses
• Two, and sometimes three, witnesses are required. Their qualifications and the manner in
which witnessing must be done varies. Some states prohibit interested parties from
witnessing. A witness does not have to read the will.
• Sometimes, witnesses must sign in the sight or presence of each other, but the UPC requires
only that the testator acknowledge his or her signature to the witnesses [UPC 2–502].
E. REVOCATION OF WILLS
1. Revocation by a Physical Act of the Maker
A testator may revoke a will by intentionally burning, tearing, canceling, obliterating, or destroying it
or by having someone else do so in the presence of the maker and at the maker’s direction. In
some states, partial revocation is recognized. Of course, where provided, statutorily prescribed
methods must be followed precisely.
CASE SYNOPSIS—
Case 51.1: Peterson v. Harrell
Marion Peterson executed a will that contained a bequest to Vasta Lucas in the form of a trust. On
Lucas’s death, the trustee was to distribute the assets to four beneficiaries, including Peterson’s brother and
sister, Arvin and Carolyn (caveators). Later, without witnesses, Peterson crossed out the beneficiaries’
names, but left the bequest to Lucas intact. After Peterson’s death, the will was admitted to probate. The
caveators appealed, contending that the will had been revoked.
The Georgia Supreme Court affirmed. To prove the revocation of a will by physical act, the caveators
must show that the act was committed with the intent. Here, the will was clearly altered, but “caveators had no
knowledge of the circumstances surrounding what they allege to be the revocation of the will, . . . testator
never discussed revoking her will with caveators, and . . . caveators were not present when testator made
the alterations to the will.” Apparently, too, Peterson intended to cancel only a portion of the will, not the entire
will—Peterson’s alterations left the bequest to Lucas intact.
..................................................................................................................................................
Notes and Questions
Can a will be revoked at any time? Yes. An executed will is revocable by the maker at any time during
CHAPTER 51: WILLS AND TRUSTS 5
Suppose that shortly before Peterson’s death, she had asked Lucas to tear up her will, and Lucas
had done it. Would the result have been different? Yes, if, shortly before Peterson’s death, she had asked
2. Revocation by a Subsequent Writing
A codicil can amend or revoke provisions in a will. A new will may (or may not) revoke a prior will,
depending on the language (the text provides an example). If an express declaration of revocation
is missing, the wills are read together; if there are inconsistent dispositions, the second will controls.
3. Revocation by Operation of Law
a. Marriage and Divorce
A marriage, divorce, or annulment, after a will has been executed generally revokes the will (at
least as regards the new spouse or ex-spouse). Generally, a new spouse gets an intestate
share, and an ex-spouse gets nothing. Exceptions include—
• A provision in the will that covers the new spouse.
• A prenuptial agreement.
b. Children
The birth of children after a will has been executed generally revokes the will (at least as
regards the new children). Generally, unless the will clearly indicates that the testator intended
to disinherit the new children, they get intestate shares.
F. RIGHTS UNDER A WILL
There are limits on the way a person can dispose of property in a will, providing a spouse’s elective
share as an example. State statutes provide methods by which a surviving spouse can renounce his or
her gift by will and take an elective share (to obtain whichever is most advantageous).
G. PROBATE PROCEDURES
1. Informal Probate
The assets of small estates can often be distributed without formal probate. Title to cars, bank ac-
counts, and other property can often be passed merely by filling out forms, particularly when held in
2. Formal Probate
6 UNIT TEN: PROPERTY AND ITS PROTECTION
For large estates, or when trusts are set up by will, formal probate is required. A court supervises
every aspect of the settlement. The process can be long and expensive, depending on the types of
assets, the tax laws, the size of the estate, and so on.
ADDITIONAL BACKGROUND—
Formal Probate
The orderly procedure used to collect assets, settle debts, and distribute the remaining assets when a
person dies is the subject matter of estate administration. The rules and procedures for managing the
estate of a deceased are controlled by statute and, consequently, vary from state to state. In every state,
there is a special court, often called a probate court, that oversees the management of estates of decedents.
Is There a Will? The first step after a person dies is usually to determine whether or not the decedent
left a will. In most cases, the decedent’s attorney will have that information. If there is uncertainty as to
Personal Representative’s Duties. The personal representative has a number of duties. His or her first
duty is to inventory and collect the assets of the decedent. If necessary, the assets are appraised to
determine their value. Both the rights of creditors and the rights of beneficiaries must be protected during the
Estate Taxes. The death of an individual may result in tax liabilities at both the federal and state levels.
At the federal level, a tax is levied on the total value of the estate after debts and expenses for administration
have been deducted and after various exemptions have been allowed. The tax is on the estate rather than on
the beneficiaries. Therefore, it does not depend on the character of any bequests or on the relationship of the
beneficiary to the decedent, unless a gift to charity that is recognized by the Internal Revenue Service as
deductible from the total estate for tax purposes is involved. Estate planning for larger estates also considers
other deductions available under federal law. An entire estate can pass free of estate tax if the estate is left to
the surviving spouse.
CHAPTER 51: WILLS AND TRUSTS 7
H. PROPERTY TRANSFERS OUTSIDE THE PROBATE PROCESS
These include living trusts, joint ownership of property, gifts while one is still living, and life insurance.
II. Intestacy Laws
Intestacy statutes set out rules and priorities under which “natural” heirs inherit property (after estate debts
are paid). The rules vary widely from state to state.
A. SURVIVING SPOUSE AND CHILDREN
A surviving spouse is usually entitled to a share of an estate—the entire estate if there are no children or
grandchildren, one-half if there is one surviving child, and one-third if there are two or more children.
ADDITIONAL BACKGROUND—
Surviving Spouse
The following is the section of the revised (1990) UPC that adjusted the amount of a surviving spouse’s
elective share to relate to the number of years that he or she had been married to the decedent.
ARTICLE II. INTESTACY, WILLS, AND DONATIVE TRANSFERS (1990)
PART 2. ELECTIVE SHARE OF SURVIVING SPOUSE
§ 2–202. Elective Share.
(a) [Elective-Share Amount.] The surviving spouse of a decedent who dies domiciled in this State has a right
of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to
the value of the elective-share percentage of the augmented estate, determined by the length of time the
spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the spouse were married
to each other:
The elective-share percentage is:
Less than 1 year
Supplemental Amount Only.
1 year but less than 2 years
3% of the augmented estate.
8 UNIT TEN: PROPERTY AND ITS PROTECTION
10 years but less than 11 years
30% of the augmented estate.
11 years but less than 12 years
34% of the augmented estate.
(b) [Supplemental Elective-Share Amount.] If the sum of the amounts described in Sections 2–207, 2–
209(a)(1), and that part of the elective-share amount payable from the decedent’s probate estate and
(c) [Effect of Election on Statutory Benefits.] If the right of election is exercised by or on behalf of the surviving
B. WHEN THERE IS NO SURVIVING SPOUSE OR CHILD
If there is no surviving spouse or child, an estate passes to lineal descendants (in the order of
grandchildren and parents) or, if none, collateral heirs (brothers and sisters, nieces, nephews, aunts, and
uncles).
C. STEPCHILDREN, ADOPTED CHILDREN, AND ILLEGITIMATE CHILDREN
ENHANCING YOUR LECTURE—
TRIMBLE V. GORDON (1977)
At common law, an illegitimate child was regarded as a filius nullius (Latin for “child of no one”) and had
no right to inherit. Over time, this attitude has changed. In 1977, the United States Supreme Court decided a
landmark case establishing the rights of illegitimate children in the United States. In Trimble v. Gordon,a an
illegitimate child sought to inherit property from her deceased natural father on the ground that an Illinois
statute prohibiting inheritance by illegitimate children in the absence of a will was unconstitutional.
CHAPTER 51: WILLS AND TRUSTS 9
THE ILLINOIS LAW
The child was Deta Mona Trimble, daughter of Jessie Trimble and Sherman Gordon. The paternity of the
father had been established before a Cook County, Illinois, circuit court in 1973. Gordon died intestate in
1974. The mother filed a petition on behalf of the child in the probate division of the county circuit court; the
court denied the petition on the basis of an Illinois law disallowing the child’s inheritance because she was
illegitimate. Had she been legitimate, she would have been her father’s sole heir. In 1975, the Illinois
Supreme Court affirmed the petition’s dismissal.
THE SUPREME COURT INVALIDATES THE ILLINOIS LAW
When the case came before the United States Supreme Court in 1977, the Court acknowledged that the
“judicial task here is the difficult one of vindicating constitutional rights without interfering unduly with the
State’s primary responsibility in this area . . . [a]nd the need for the States to draw ‘arbitrary lines . . . to
APPLICATION TO TODAY’S WORLD
This is a landmark case in the law because it represents a significant step toward equal rights for
children. By declaring the Illinois statute unconstitutional, the Court invalidated similar laws in several other
states. That does not mean, however, that all illegitimate children now have inheritance rights identical to
D. GRANDCHILDREN
1. Per Stirpes Distribution
Per stirpes is a method of dividing an intestate share by which a class or group of distributees (for
example, grandchildren) take the share that their deceased parent would have been entitled to
inherit had that parent lived.
2. Per Capita Distribution
An estate may also be distributed on a per capita basis, which means that each person takes an
equal share of the estate.
III. Trusts
A trust involves any arrangement by which legal title to property is transferred from one person to be
administered by a trustee for another person’s benefit. The elements of a valid trust are—
• A designated beneficiary.
• A designated trustee.
10 UNIT TEN: PROPERTY AND ITS PROTECTION
• A fund identified to enable title to pass to the trustee.
• Delivery by the settlor or grantor to the trustee with the intent of passing title.
A. EXPRESS TRUSTS
1. Living Trusts
A grantor executes a living trust during his or her lifetime.
a. Revocable Living Trusts
A living trust can be revocable, in which the grantor retains control over the property and must
pay taxes on it).
CASE SYNOPSIS—
Case 51.2: Dowdy v. Dowdy
Betty and Dennis Dowdy created a trust consisting of two pieces of real estate, and served as the initial
trustees and beneficiaries. The trust provided, “In the event of the death of each of the Initial Trustees, * * *
the Settlors nominate and appoint” Dennis’s son Michael and Betty’s daughter Deborah “as Co–Successor
Trustees.” The trust authorized the trustees to “invade” the corpus “so much as they may choose” for the
benefit of the beneficiaries “or the survivor.” Betty and Dennis sold one of the trust properties. After Dennis
died, Betty sold the other. Michael learned of the sale and filed a petition in a Florida state court against Betty,
..................................................................................................................................................
Notes and Questions
Why do most states have strict requirements for the execution of a valid will and the terms of a
trust? Strict standards for the execution of valid wills and the terms of trusts in most states are motivated by a
desire to thwart fraud, undue influence, and other wrongdoing. And once a testator or settlor has died (or
b. Irrevocable Living Trusts
CHAPTER 51: WILLS AND TRUSTS 11
A living trust can be irrevocable, in which the grantor gives up control and does not pay the
taxes.
2. Testamentary Trusts
A testamentary trust is created by will on the settlor’s death.
3. Charitable Trusts
A charitable trust (designed to benefit part of all of the public) must be created for a charitable,
educational, religious, or scientific purpose.
4. Spendthrift Trusts
A spendthrift trust prevents a beneficiary’s using trust funds improvidentially by limiting the
beneficiary’s draw on trust funds and transfer of the right to future payments.
5. Totten Trusts
This trust is created when a person deposits money in his or her name in trust for another. It is
revocable at will until the gift is completed or the grantor dies.
B. IMPLIED TRUSTS
1. Constructive Trusts
A constructive trust is an equitable remedy that enables plaintiffs to recover property (and
sometimes damages) from defendants who would otherwise be unjustly enriched. The text
provides examples.
2. Resulting Trusts
A resulting trust arises from the conduct of the parties.
C. THE TRUSTEE
Anyone legally capable of holding title to, and dealing in, property can be a trustee. If a settlor fails to
name a trustee, or if a named trustee cannot or will not serve, a court can appoint a trustee.
1. Trustee’s Duties
A trustee must act with honesty, good faith, and prudence, and exercise loyalty toward the
beneficiary. A trustee must—
• Keep clear, accurate accounts.
• Furnish complete information to the beneficiary.
• Keep trust assets separate.
• Pay an income beneficiary the net income of the trust.
• Distribute the risk of loss of the trust assets through diversified “prudent investments.”
ADDITIONAL BACKGROUND—
Trustee’s Duties
A difficult question concerns the extent to which a trustee has the discretion to “invade” the principal and
12 UNIT TEN: PROPERTY AND ITS PROTECTION
distribute it to an income beneficiary—if the income is found to be insufficient to provide for the beneficiary in
an appropriate manner. A similar question concerns the extent of a trustee’s discretion to retain trust income
and add it to the principal, if the income is found to be more than sufficient to provide for the beneficiary in an
appropriate manner.
Generally, the income beneficiary should be provided with a somewhat predictable annual income, but
with a view to preserving the principal. A trustee may therefore make individualized adjustments in annual
distributions.
2. Trustee’s Powers
• State law may restrict the trustee’s investment of trust funds to conservative debt securities.
• A settlor often grants a trustee discretionary investment power. In that circumstance, any
statute may be considered only advisory, with the trustee’s decisions subject in most states to
the prudent person rule.
3. Allocations between Principal and Income
A settlor may provide one beneficiary with a life estate (an income interest) and another beneficiary
with the remainder interest in the principal of a trust. Absent terms in the trust to the contrary, state
law provides that ordinary receipts and expenses are chargeable to the income beneficiary, and
extraordinary receipts and expenses are allocated to the principal beneficiary.
D. TRUST TERMINATION
A trust terminates when it says it does, when its terms have been fulfilled, or when it is impossible to
continue.
IV. Other Estate-Planning Issues
In anticipation of becoming incapacitated or otherwise unable to act, persons sometimes plan for others to
manage their affairs.
ENHANCING YOUR LECTURE—
SOCIAL MEDIA ESTATE PLANNING
People are generally quite careful about choosing the personal representatives who will deal with their
real estate, bank accounts, and investments after they have died. Today, the same care should be taken in
choosing an online executor to deal with a deceased’s online identity, particularly in social media.
WHAT AN ONLINE EXECUTOR SHOULD DO
An online executor is responsible for dealing with a decedent’s e-mail addresses, social media profiles,
and blogs. E-mail accounts should be closed, but some people do not want their social media profiles to be
erased after they die. They want the profiles to be maintained, at least for some specified time after death, so
CHAPTER 51: WILLS AND TRUSTS 13
that family and friends can visit them. Some people ask that the online executor place a memorial profile in
their social media accounts.
WHY SOCIAL MEDIA ESTATE PLANNING IS IMPORTANT
Online estate planning is essential because the deceased can still be a victim of identity theft.
Unscrupulous fraudsters often use dead people’s online identities to defraud private companies, individuals,
CRITICAL THINKING
Why might an online executor need a copy of the deceased’s death certificate? In order to close
Web sites, blogs and social media accounts, your online executor may be required to show proof that you
have died.
A. POWER OF ATTORNEY
A power of attorney authorizes a person to act on another’s behalf, sometimes for limited purposes.
1. Durable Power of Attorney
A durable power of attorney authorizes a person to act on behalf of an incompetent person when he
or she becomes incapacitated.
2. Health-Care Power of Attorney
A health-care power of attorney designates a person to choose medical treatment for a person who
is unable to make such a choice.
B. LIVING WILL
A living will is an advance health directive that designates whether or not a person wants certain life-
saving procedures to be taken if they will not result in a reasonable quality of life.
TEACHING SUGGESTIONS
1. Ask students if they have ever made a will. What were some of the concerns that prompted them to
make a will? Do single persons without children need a will?
2. Ask students to discuss why the requirements for executing valid wills are so strict in most states. Are
these standards prompted by fears of fraud? Should these standards be relaxed so that those who
fail, for one reason or another, to comply with a particular statutory requirement, will not have their
wills invalidated?
3. Ask students to discuss the various techniques for estate planning—which are most advantageous in
14 UNIT TEN: PROPERTY AND ITS PROTECTION
what types of situations—and to put together estate plans of their own. This could help underscore that
estate plans must be continually reviewed and revised to be sure they meet the needs of those for whom they
are designed. What circumstances, other than divorce, could affect who takes what under a will, or by
some other estate planning technique? Are taxes the only consideration?
4. Bring to class various will forms, trust forms, and forms for the documents discussed in the elder law
section, and discuss their provisions and effects, particularly in your jurisdiction.
Cyberlaw Link
What effect might the Web have on the uniformity of wills and other estate planning documents
discussed in this chapter? How might the existence of the Internet affect the management of a trust?
DISCUSSION QUESTIONS
1. What is a will? A will is the final declaration of the disposition that a person desires to have made of his or
2. How does a specific devise or bequest differ from a general devise or bequest? A specific devise de-
3. What is the purpose of a residuary clause? A will may provide that any assets remaining after specific
4. What are the three requirements that must be satisfied in order for a testator to demonstrate his or
5. What are the four basic requirements for a valid will? A will (1) must be in writing; (2) signed by the
6. What is a codicil? A codicil is a written instrument separate from the will that amends or revokes provisions
7. What four elements must be present to create a valid trust? A valid trust must include (1) a designated
8. How does a living trust differ from a testamentary trust? A living trust is a trust executed by a grantor
during his or her lifetime. The grantor executes a “trust deed,” and legal title to the trust property passes to the named
10. How might the availability of a secure online repository for a person’s will affect a challenge to the
will? A copy of a will might be produced more easily if it were deposited in an electronic database that could be
ACTIVITY AND RESEARCH ASSIGNMENTS
1. Ask each student to draft a will for himself or herself disposing of any property he or she may own. What
sorts of problems does drafting a will present in terms of deciding who should receive what property?
EXPLANATION OF A SELECTED FOOTNOTE IN THE TEXT
Footnote 5: Belton Johnson was married three times. He had three children from his first marriage, and
16 UNIT TEN: PROPERTY AND ITS PROTECTION
In In re Estate of Johnson, a state intermediate appellate court affirmed. Johnson was an admitted alcoholic
with permanent cognitive defects and memory problems that would have caused him to be more susceptible to undue
Why would one heir (third wife Laura) seem loathe to share an estate with the other heirs (Johnson’s
Suppose that Johnson, in his 1999 will, had specifically mentioned that it was his intention that his
children and grandchildren would not receive any portion of his estate. Would that have changed the
outcome? Why or why not? If Johnson had specifically stated in his 1999 will that he intended not to give any
There was no evidence presented to indicate that Johnson was intoxicated at the time he executed
the will. So why did the court’s analysis focus on the evidence of Johnson’s alcoholism? The court focuses on
the evidence of Johnson’s alcoholism because it supports the notion that he was particularly susceptible to his wife’s
