Estates/Probate 1

Chapter One: Wealth,
Property, and Estates

Wills, Trusts, and Probate Law for Paralegals
Gibson
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.2
Estate Planning
 Estate planning consists of:
 the concept of providing for how wealth will
be distributed upon our death
AND
 how to make certain those we want to
receive our wealth get it within the
mandates of the law.

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Estate Planning includes the laws of:
1. wills
2. trusts
3. property
4. insurance
5. tax

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Estate Planning Terms
Will  a devise for distributing wealth
- typically written
- contains gifts and directions
Testator the person making the will, if male
Testatrix  the person making the will, if female
Beneficiary  recipient of a gift by will

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Probate
• Probate proceeding declares whether a
will is valid and then insures the proper
distribution of the estate to the
beneficiaries.

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Intestacy
Intestate  to die without an executed
will or if a court declares a will invalid
 Statutes of descent and distribution
or statutes of intestate succession
govern inheritance when no valid will
exists.

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Uniform Probate Code
Uniform Probate Code (U.P.C.) –
a uniform law that could be
adopted by state legislatures to
govern wills and probate
procedure within a state

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6 Main Objectives of a Will
1. We choose who receive the estate.
2. We can leave property to individuals or
organizations that would not receive it if
we died intestate.
3. We could reduce taxes.

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6 Main Objectives of a Will cont.
4. We could nominate a personal
representative to administer the estate.
5. We could nominate a guardian for a
minor.
6. We could save money by lowering costs
of administering the estate.

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Property Law
Two categories of property:
1. Real Property
2. Personal Property

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Real Property
Real Property  land and things
attached to it
- Tangible
- Immoveable
- AKA – real estate or realty

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Fixtures
Items that become so attached to the land
that they take on the characteristics of
the land.
- Fixtures are treated as real
property.
- Example: in-ground swimming
pool, toilet, furnace

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Personal Property
Personal property  moveable property
Two categories of personal property
1. Tangible  moveable items that are touchable
example: cars, books, clothing
2. Intangible moveable items that are not touchable
example: stock certificates, bonds, patents

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Real Property Ownership
Fee Simple Absolute (“fee simple”)
 Individual has possession of the land and
rights

Controlling it

Using and enjoying it

Excluding others from entering it

Disposing of it

Mortgaging it

And More

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Fee Simple Absolute cont.
 Only one person owns the property – no
automatic survivorship interests.
 Owner, upon death, must transfer the real
property in 1 of 3 methods.
1. Gifting the realty to the beneficiary in a will
2. Gifting the realty to a trust to be held for the
benefit of the beneficiary OR
3. Dying intestate and having the property pass via
statutes of intestate succession.

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Concurrent Ownership of Real
Property
Concurrent ownership  two or more
people own the same property
3 Types of Concurrent Ownership
1. Tenancy in Common
2. Joint Tenancy
3. Tenancy by the Entirety

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Tenancy in Common
Tenancy in Common  where two or more
persons hold a possessory interest in the
same parcel of real property
* No survivorship rights.
* May still own as tenants in common if
acquired interest in real property at different
times or through different method.
* Unity of possession required.

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Joint Tenancy
Joint Tenancy  a single estate in
property held by two or more people
created by one instrument at one time.
* Equal right to share in use &
enjoyment of property
* Right of survivorship exists
- Property held in joint tenancy is
non-probate property.

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Joint Tenancy cont.
4 Unities required
1. Unity of Time – acquired possession at the
same time
2. Unity of Title – acquired through same
instrument (deed or will)
3. Unity of Interest – identical quantity and
duration interests in property
4. Unity of Possession – equal right to use
and enjoy

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Tenancy in Common vs. Joint
Tenancy
 Tenancy in Common
 Unity of possession required.
 No survivorship rights.
 Joint Tenancy
 4 Unities required: possession, time, title, &
interest
 Right of survivorship exists.

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Tenancy by the Entirety
Tenancy by the Entirety  ownership of
property by a husband and wife together
5 Unities required
1. Unity of Time
2. Unity of Title
3. Unity of Interest
4. Unity of Possession
5. Unity of Person (marriage)

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Tenancy by the Entirety cont.
 Right of survivorship exists
 Property held under tenancy by the
entirety is non-probate property
* What if tenants by the entirety divorce?
- Tenancy by the entirety shifts to a
tenants in common ownership.

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Community Property
Community Property states:
* decline to follow common law rules of
tenancy by the entirety
* create co-ownership between spouses
under community property or marital
property laws

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Community Property cont.
Community Property states dictate that
spouses equally share in their assets.
Upon death of one spouse:
½ of assets  surviving spouse
½ of assets  subject to estate
administration

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Community Property cont.
Community property states divide
property into two classifications:
1. Community property (marital property)
2. Separate property

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Separate Property
 Property of a spouse
 Acquired and owned pre-marriage
 Acquired during the marriage by gift
 Acquired during the marriage by inheritance
 Acquired during the marriage by will
 Classified by the party through the agreement
 Classified by state statute as separate.

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Separate Property cont.
Two main tests used to determine if
property is separate:
1. Time of acquisition
2. Source of funds used to acquire the
item

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Probate vs. Non-Probate
Property

Estates/Probate 1

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