Novemeber 19th Notes

Fundamentals of Legal Practice
November 19, 2009

11/19 - Decedents/Domestic
11/24    - Pleadings due - domestic
12/1 - KS Contracts
12/3 - review/some KS
12/8 - KS Contracts
12/10 - Final

Pleadings: Jurisdiction, Venue, Signature
Double Spaced

Two main clauses on a will:
1. Dispositive clause
    - the passing of property indicates whom the money, property, ownership rights will be given
    1. Request: gift of personal property
    2. Devise: gift of real property

2. Residuary clause
    - the rest of the property indicates where the remaining assets of the estate shall go after bills have been paid
    -usually donated

-Heirs are not responsible for debt after going through assets of trustee

Simultaneous death clause
    -usually only if you are married
    -assumed the beneficiary died first
    -presumed that your family will get your property

-Effectuate the intent of the testator/deceased
    -if you die without a will
    -guessing on your idea of distribution

Executor
    -if you have a will, the one appointed for handling the estate

 Personal Representative
    -if you do not have a will, the one appointed for handling the estate

Guardianship Clause
    -here is what we want for the children
    -with no will, the court will appoint and is usually your closest living relative and will continue to try
    -if no one is found, they become a ward of the state
    -you are not required to choose a relative
    -parens patriae: best interest of the child

Trust Clause
    -a device whereby the trustor takes property into a trust that is administered by a trustee for a beneficiary
    -create for specific use of your property, control over your money

Types of trust
1. inter vivos
    -you create in your lifetime
2. causa mortis (testamentary trust)
    -you use your will to create it (you die)

Charitable Trust: interest to your favorite charity

Spendthrift Trust: small amounts are paid off to beneficiary

Special Purpose: specific purpose

Special Needs Trust: dependent on government benefits, you put money here to keep them

Attestation Clause
    -short paragraph written between the signature that the signature is mine and witnesses were there

Self-proving Affidavit
    -signed by testator that the signature is mine and witnesses were there

Statutory Elective Share
    -You can not disinherit a spouse
    -the disinherited spouse can either take what they got in the will or whatever the state's automatic percentage is (30-50%) of the state
    -only in a non community property state
        - that all property after the marriage is jointly owned
    -in community property states
        -the property is already owned by the spouse, no need for clause

"Per Stirpes" (right of representation)
    -indicates that is a particular beneficiary dies before the testator, the share shall pass to his lineal descendants per stripes
    -pass property to your lineal descendants (directly related by blood and are lower on the family tree)
    -pro children or pro grandchildren?
        -grandchildren only get what their parents represent

to my lineal descendants per capita - direct to grandchildren to split
to my lineal descendants per stirpes - to your children directly to split
grandchildren and children to share and share alike per capita - all split

-adopted children are the same as natural children
-illegitimate children are heirs of the mother but not of the father (must be acknowledged)

Probate
    -court procedure where the property is divided, whenever someone dies
    -Purpose
    1. verify the validity of will
    2. inventory of property of deceased
    3. provide creditors of the deceased opportunity to make claim against estate
    4. ensure that the title is transfered properly to beneficiary

-anyone can have a representative probate

Sequence of Probate
1. Petition
2. Administration is prepared
3. Oath of witness to will
4. A court file is opened
    -actual notice: known creditors, written notice to
        example: bank, visa, car, friends
    -constructive notice: unknown creditors, notice in the newspaper (legal notice), run for a certain period of time
        example: people that come forward with debts
    -WA 120 days statute of limitation on the creditor claim (from day of notice)
5. Inventory prepared and filed
6. An accounting is prepared and filed
7. Tax statements are obtained and filed
    -Death Taxes (inheritance taxes)
        -was designed to breakup estates believe government deserves it
        -up to 3.5 million exempt from tax
             -inheritance rate 55%
    Problems with this:
    1. Already taxed twice (income, corporate, then inheritance)
    2. You have to sell property to pay inheritance tax
8. Property is transfered
    -Receipt of beneficiary: it is received and then filed
    -Title has to be conveyed by personal representative's deed
        -can't give you a warranty deed because he is dead, so a different deed is needed
9. Closing documents prepared
    -petition for discharge: everything is done and you are released
   
Living Wills
    -not a will, not about living
    -actually medical directive
        -requests to pull plug, brain dead, vegetative state
        -clear, cogent, convincing evidence of wishes
        -Cruzan v. Missouri 1990
            -mva, parents wished to unplug after years, state says no, only takes living will due to constitutional obligation on life, liberty and property protection from the state, due process is needed
        -Quinlin (NJ)
        -Suhaivo (WA)

Online for free:  http://www.doh.wa.gov/livingwill