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Dynamic business law 4e kubasek 4e CH52

Chapter 52
Wills and Trusts

Copyright © 2017 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education.


• LO52-1: How does one engage in estate planning?
• LO52-2: What legal issues relate to wills?
• LO52-3: How are trusts used as estate planning tools?
• LO52-4: What end-of-life decisions are important from a legal

LO52-5: How does international law protect wills?


Chapter 52 Hypothetical Case 1

The past few weeks have been very difficult for 39-year-old Ana Marie Hunnicut. In that time frame, her father Alvaro Rodriguez, a longtime resident of Yuma, Arizona,
was diagnosed with terminal cancer and died. As her father's only immediate family member (Rodriguez's wife Izarra had passed away eight years before), Hunnicut is
responsible for probating her father's estate.

Early this morning, while going through the important papers her father kept in an unlocked safe in his home office, Hunnicut came across a paper entitled "Last Will and
Testament of Alvaro Diego Rodriguez." The document was dated September 1, 2013, and was written entirely in what appeared to be her father's handwriting, including
his signature. In it, Rodriguez revoked all previous wills and willed all of his personal and real property, including all bank deposits, to the Border Network for Human
Rights, a nonprofit humanitarian group dedicated to assisting Mexican immigrants and influencing United States immigration policy. The estate is worth $175,000.

Hunnicut is both perplexed and heartbroken. Her father had always attended to her needs, and in a 2005 will (an original copy of which Hunnicut had in her possession),
he had left all of his estate to his daughter. The 2005 will had been prepared by a local attorney, witnessed by two friends of the Rodriguez family, and notarized by a local
notary public.

Does Rodriguez's 2013 will take precedence over his 2005 will? Does it matter that the 2005 will was executed with formalities, including the signatures of two witnesses
and a notary public, and the 2013 will was not? From an ethical and/or legal standpoint, is Hunnicut obligated to honor the 2013 will, even though doing so means she
will receive none of her father's estate?


Chapter 52 Hypothetical Case 2

Cecil Husted, a divorced father of two children, recently died of a heart attack at the age of 70. Husted was an internationally
acclaimed film cinematographer and director, known for such films as 2110: A Galactic Adventure and The Glistening. The year
before he died, Husted created a videotaped will in which he left all of his $7 million estate to his daughter, Sophia Collingsworth.
The executor of Husted's will, his colleague Albert Fontrow, submitted the will to probate.

Husted's son, Hal Husted, has challenged the will in probate court. Hal Husted seeks to invalidate the videotaped will and thereby
receive a one-half share of his father's estate through the laws of intestate distribution (the laws of intestate distribution apply by
default when an individual dies without leaving a valid will; through intestate laws, children of a decedent share equally in terms of
property distribution).

Will Hal Husted succeed in his legal challenge to his father's will?


Estate Planning and the
Uniform Probate Code

• Estate planning: Process by which an individual decides what to do with

his/her real and personal property during and after life
Uniform Probate Code: Guides states in developing laws related to estate


Important Estate Planning Tools

• Will: Legal document that outlines how a person wants his/her property

distributed on death
Trust: Allows a person to transfer property to another person; property
used for benefit a third person


Reasons Individuals Engage in Estate Planning

• To provide for their family financially after their death
• To reduce taxes and preserve wealth
• To promote family harmony
• To allow individuals in nontraditional family relationships to gain benefits
of traditional family relationships


Intestacy Statutes

• Intestacy statutes: Outline how a person's property will be distributed if
he/she dies without a will


Requirements for a
Legally Valid Will

• Testamentary capacity: Person must be old enough to write will, and must

be of sound mind
Document in writing (usually a typed, written instrument)
Testator's signature, including initials on each page
Witnesses who attest to the will


Special Kinds of Wills

Oral will: Will that testator declares verbally during his/her last illness, in front of witnesses, who later
document testator's wishes

Holographic will: Will that testator writes and signs in his/her own handwriting; usually states do not require
witnesses, because when entire will is in handwriting, reduced chance of fraud/forgery

Mutual will: Will that two/more testators execute in which they leave property to each other, provided the
survivor agrees that when he/she dies, remaining property will be distributed consistent with plan created
by all testators


Legal Issues Related to Wills

Grounds for contesting will

Will fails to meet legal requirements
Testator a victim of fraud/undue influence

Changing will: By writing a will codicil (wills are ambulatory, meaning testators can change them)

A codicil is a separate document with new provisions that outline changes to will
Testator must satisfy same procedures to make a valid codicil as those followed in making original will

Revoking will: Most common method is destruction of will
Settlement of estate: By way of a personal representative (executor/executrix), through process known as


Creation of a Trust

Person who creates trust (settlor) delivers and transfers legal title to property to another
person (trustee), who holds the property and uses it for benefit of third person
Trusts are usually created through formal, written documents
Common trust components:

Trust corpus: Property held in trust
Income corpus: Trust income generated through interest and/or appreciation


Types of Trusts

• Express

• Living trust: Created when settlor is alive
• Testamentary trust: Created through a will

• Implied: Created by court


Termination of Trusts

• Termination of trust: Through provision in trust which either indicates
date on which trust will terminate, or specifies an event that will
terminate trust


End-of-Life Decisions:
Advance Directives

• Types of advance directives (through which person can express his/her wishes about
efforts to prolong life and the right to die) include:

Living wills: Allow individuals to express their wishes regarding extent of medical
treatment desired if they are in an accident or suffer from a life-threatening illness

Health care proxies/durable powers of attorney: Allow individuals to make medical
decisions for others


Uniform Anatomical Gifts Act (UAGA)

• Provides that any individual 18 years old/older may give all/any part of his/her body
to donee on death

• Such donations are called anatomical gifts


Providing for a Uniform Law on the Form of an International Will

• Sponsored by International Institute for Unification of Private Law (UNIDROIT)
• Protects wills written in other countries, provided the wills follow a particular format


Chapter 52 Hypothetical Case 3

Known as the "Queen of Mean," hotelier and real estate developer Leona Helmsley gained notoriety in the 1980s for the purported
quote, "Only the little people pay taxes." (She was convicted of federal tax evasion and sentenced to a short prison stay as a result
of her crime.) Helmsley died in 2007, leaving behind a will that devised $12 million for the care of her eight-year-old dog, a Maltese
named Trouble. She completely disinherited two grandchildren; the will offered no explanation for their disinheritance other than
"reasons which are known to them." Donald Trump was quoted as saying, "The dog is the only thing that loved her and deserves
every single penny of it."

Should a probate court rewrite such a will, reducing the amount of money for the care of the dog and allocating a reasonable
portion of the funds to the two grandchildren who received nothing from the will? Is it ethical for a testator to completely
disinherit close relatives, especially when such a snub favors a dog?


Chapter 52 Hypothetical Case 4

Seven years ago, 83-year-old Sara Muldowney signed a durable power of attorney agreement that stipulated that her son, Robert Muldowney, could make
medical decisions for her if she became incapacitated. Her daughter, Sylvia Cantor, was not named in the document nor any other document relating to
Muldowney's affairs or estate.

Yesterday, Sara Muldowney suffered a severe stroke. She has been placed on life support, and doctors have advised her son and daughter that Muldowney
could persist for years in that state. Without the life support, they have told her children, she will certainly die, and if she does at some point regain
consciousness (an unlikely event), she will be paralyzed, will require a ventilator to breathe, and will be unable to speak or care for herself.

Robert Muldowney decides to withdraw life support from his mother and let her die peacefully. Cantor is outraged and wants her mother to survive by any
means necessary.

Is Robert Muldowney able to override his sister's wishes and allow his mother to be removed from life support? Does Cantor have legal grounds to fight her
brother's decision?


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