ASSIGNMENTSPlease read the entire week's assignment before class on Monday

Week I

Aug. 19 & 21 TEXT: pp. 1-3, 13-34, 49-66, 977-85, 1005-07

STATUTORY SUPP.: OCGA зз 53-1-2, 53-4-1 through 53-4-3

VOCABULARY: Will, Testator, Testate, Intestate, Bequest, Legacy, Devise, Probate, Executor, Administrator, Administrator Cum Testamento Annexo (C.T.A.) (Administrator with the Will Annexed), Administrator De Bonis Non (D.B.N.), Personal Representative, Probate Assets, Gratuitous Transfers, Donor/Donee, Estate Tax, Gift Tax, Inheritance Tax, Applicable Exclusion Amount (Equivalent Exemption), Gross Estate, Annual Exclusion

NOTE: Replace the Table at the bottom of p. 982 with the following:

For estate of decedents dying in: Exemption:

2002 $1 million

2003 $1 million

2004 $1.5 million

2005 $1.5 million

2006 $2 million

2007 $2 million

2008 $2 million

2009 $3.5 million

2010 Repeal

2011 It's back!

Week II

Aug. 26 & 28 TEXT: pp. 71-90

NOTE: Worksheets #3 & 4

STATUTORY SUPP.: O.C.G.A. з53-2-1; 53-1-5; 53-1-10 through -13,53-10-1 through -6

See Also: "Old" UPC Sec. 2-102 (p. 2 of Worksheet #3)

VOCABULARY: Uniform Simultaneous Death Act, Intestate Succession, Descent and Distribution, Heir, Heir Apparent, Descendant, Issue, Escheat, Per Stirpes, Per Capita, By Representation, Per Capita with Representation, Per Capita at Each Generation

Week III

Sept. 2 - no class (Labor Day)

Sept. 4 TEXT: pp. 97-128, 132-36

STATUTORY SUPP.: OCGA Secs. 53-2-1 through -6, 53-2-27, 19-8-19 (effect of decree of adoption)

VOCABULARY: Posthumous Child, En Ventre Sa Mere, Virtual(Equitable) Adoption, Guardian of the Person, Guardian of the Property, Custodian, Conservator

Week IV TEXT: pp. 73-74 (UPC з2-103), 90-97

NOTE: Worksheet #5

Sept. 9 & 11 STATUTORY SUPP: OCGA Sec. 53-2-1

VOCABULARY: Ancestor, Collateral Heirs, Degree-of-Relationship System (Civil Law System), Parentelic System, Half-Blood Heir, Laughing Heir

Week V TEXT: pp. 128-32, 141-51, 159-75

Sept. 16 & 18 Statutory Supp.: OCGA Secs. 53-1-5, 53-1-10 through -13, 53-1-20, 53-4-1 through -11

VOCABULARY: Expectancy, Advancement, Hotchpot, Disclaimer, Renunciation, Constructive Trust, Testamentary Capacity, Lucid Interval, Caveat, Insane Delusion, Monomania, Mistake, Ante-Mortem Probate

Week VI TEXT: pp. 175-97, 213-22 223-36

NOTE: Worksheet #6

Sept. 23 & 25 Statutory Supp.: OCGA Secs. 53-4-12, 53-4-20 through -24, 53-4-68

State Bar Advisory Op. #91-1

VOCABULARY: Undue Influence, No-Contest ("In Terrorem") Clause, Confidential Relationship, Fraud, Attestation, Line of Sight Test, Conscious Presence Test

Week VII TEXT: pp. 236-47, 262-85

NOTE: Worksheet #7, Probs. 1 & 2

Sept. 30 & Oct. 2 STATUTORY SUPP.: OCGA Secs. 53-4-23, -24, 53-4-40 through -47

VOCABULARY: Interested Witness, Self-Proving Will, Conditional Will, Substantial Compliance Doctrine, Holographic Will, Express Revocation, Implied Revocation

Week VIII TEXT: pp. 286-98

NOTE: Rest of Worksheet #7 (except Prob. #8)

Oct. 7 Statutory Supp.: OCGA 53-4-48 through -50
VOCABULARY: Dependent Relative Revocation, Revival

Oct. 9- no class

Week IX TEXT: pp. 298-11, 318-29, 336-50

NOTE: Worksheet #8 of Worksheet #7, Worksheet #8

Oct. 14 & 16 Statutory Supp.: OCGA Secs. Secs.53-4-30 through -33, 7-1-810 through -815 (multiple party bank accounts)

VOCABULARY: Republication, Codicil, Integration, Republication by Codicil, Incorporation by Reference, Acts of Independent Significance, Mutual Wills, Joint Wills, Joint and Mutual Wills; Payable on Death Provisions, Joint Tenancy with Right of Survivorship, Multiple Party Account; Joint Account, Agency Account, Payable on Death Account, Transferable on Death Security Registration

Week X TEXT: pp. 409-41. 444-46, 449, ("Class gifts"), 457-58

NOTE: Worksheet #9

Oct. 21 & 23 STATUTORY SUPP.: OCGA Secs. 53-4-55 through -58, 53-4-64 through -65

VOCABULARY: Construction, Plain Meaning Rule, Personal Usage Exception, Mistake, Patent Ambiguity, Latent Ambiguity, Lapse, Anti-Lapse Statute, Class Gifts

Week XI TEXT: pp. 459-88, 507-11

NOTE: Worksheet #10

Oct. 28 & 30 STATUTORY SUPP.: OCGA 53-4-59, 53-4-66 through -67,

53-3-1 through -9

VOCABULARY: Ademption by Extinction, Specific Bequest, General Bequest, Demonstrative Legacy, Abatement, Ademption by Satisfaction, Exoneration, Homestead, Family Allowance, Year's Support, Elective Share, Augmented Estate

Week XII TEXT: pp. 553-84, 586-94

NOTE: Worksheet #11 (1-3)

Nov. 4 & 6 STATUTORY SUPP.: OCGA Secs. 53-12-1 through -27

VOCABULARY: Trust, Active Trust, Passive Trust, Private Trust, Charitable Trust, Express Trust, Settlor, Trustor, Grantor, Inter Vivos (Living) Trust, Testamentary Trust, Declaration of Trust, Deed of Trust, Trustee, Fiduciary, Beneficiary, Revocable Trust, Life Estate, Precatory Language, Trust Property, Life Insurance Trust - Funded or Unfunded

Week XIII TEXT: pp. 597-607, 351-61, 368-75, 386-96, 584-86

NOTE: Worksheet #11 (4-6)

Nov. 11 & 13 STATUTORY SUPP: OCGA Secs. 53-12-70 through -71, 53-12-28

VOCABULARY: Honorary Trust, Totten Trust, Farkas v. Williams Trust, Control Trust, Pour-Over Will, Implied Trust, Resulting Trust, Purchase Money Resulting Trust, Constructive Trust, Oral Inter Vivos Trust of Land

Week XIV TEXT: pp. 608-51

NOTE: Worksheet #11 (7), #12

Nov. 18 & 20 STATUTORY SUPP: OCGA Secs. 53-12-90 through -94

VOCABULARY: Secret Trust, Semi-Secret Trust, Mandatory Trust, Discretionary Trust, Spray (Sprinkle) Trust, Income, Principal (Corpus), Spendthrift Trust, Support Trust

Week XV TEXT: pp. 665-74, 676-82

Nov. 25 VOCABULARY: Power of Appointment - General, Limited, Special,

(Final class) Donor of the Power, Donee of the Power, Appointee, Takers in Default, Ascertainable Standards

WORKSHEET #1 PERSONAL REPRESENTATIVES

p. 1

a) Mary Smith's will names John Smith as executor and no successor executor is named. John predeceases Mary. Who will administer her estate?

b) Mary Smith's will names John Smith as executor and no successor executor is named. John serves for one month but then dies.

c) Mary Smith's will names John Smith as executor and no successor executor is named. John predeceases Mary so Susan Jones is appointed Administrator C.T.A. However, Susan becomes incompetent to serve.

d) Mary Smith left a will but did not name an executor.

e) Mary Smith died intestate and Susan Jones was appointed Administrator of her estate. Susan resigns two weeks later.

Ga. Probate Court Standard Form #24 (modified) Worksheet #1, p. 2

STATE OF GEORGIA

COUNTY OF

LETTERS TESTAMENTARY

By , Judge of the Probate Court of said County.

KNOW ALL WHOM IT MAY CONCERN:

That on the day of , 20 , at a regular term of the Probate Court, the last Will and Testament dated , 19 ____, of deceased, at the time of death a resident of said County, was legally proven in ______________________ form and was admitted to record by order, and it was further ordered that named as Executor(s) in said Will, be allowed to qualify, and that upon so doing, Letters Testamentary be issued to such Executor(s).

NOW, THEREFORE, the said , having taken the oath of office and complied with all the necessary prerequisites of the law, is/are legally authorized to discharge all the duties and exercise all the powers of Executor(s) under the Will of said deceased, according to the Will and the law.

Given under my hand and official seal, the day of , 19 .

Judge of the Probate Court

NOTE: The following must be signed if the judge does not

sign the original of this document:

Issued by: (Seal)

Clerk, Probate Court

WORKSHEET #2

For estate of decedents dying in: Exemption:

2002 $1 million

2003 $1 million

2004 $1.5 million

2005 $1.5 million

2006 $2 million

2007 $2 million

2008 $2 million

2009 $3.5 million

2010 Repeal

2011 It's back!

1. On January 1, 2002, Helen gives $511,000 to her nephew. Assume she has made no prior taxable gifts. What amount of this gift is potentially taxable?
Must Helen pay gift tax on that amount in 2002?

2. On January 4, 2002, Helen dies. She has an estate of $1.6 million. Her will leaves $600,000 to her spouse and the rest of her property to her niece.
1) Calculate Helen's potentially taxable estate:

2) Take any allowable deductions:

3) Of the remaining amount, how much is actually taxed?

WORKSHEET #3 Intestacy: Surviving Spouse Page 1

> What does D's surviving spouse take if D dies leaving:

old UPC new UPC GA.

1) no issue,

no parents

2) no issue,

parents

3) "joint" kids

& neither D nor

S have other

kids

4) joint kids +

D's kids from

1st marriage

(S has no other

children)

5) joint kids +

S has other kids

(D has no other

children)

Worksheet #3 -- p. 2

Pre-1990 UPC Sec. 2-102: Share of Spouse

The intestate share of the surviving spouse is:

(1) if there is no surviving issue or parent of the decedent, the entire intestate estate;

(2) if there is no surviving issue but the decedent is survived by a parent or parents, the first [$50,000] plus one-half of the balance of the intestate estate;
(3) if there are surviving issue, all of whom are issue of the surviving spouse also, the first [$50,000] plus one-half of the balance of the intestate estate;

(4) if there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

WORKSHEET #4

FACTS: Decedent has three children: A, B, & C

A has two children: D & E

B has one child: F

C has three children: G, H, I

Answer each of these questions under the three systems of distribution:

a) PER CAPITA WITH REPRESENTATION

b) PER CAPITA AT EACH GENERATION

c) PER STIRPES

1) What if Decedent is survived by all of her children and all of her grandchildren?

b)

c)

2) What if no children of Decedent survive her but she is survived by all of her grandchildren?

a)

b)

c)

3) What if Decedent is survived by A and all of the grandchildren?

a)

b)

c)

WORKSHEET #5

A. D dies survived by her brother and by two nieces, Anne and Beth, who are the daughters of D's predeceased sister Susan.

B. D was one of three sisters. D's sister Susan predeceased D, leaving one son Tom. D's sister Louise predeceased D. Louise had had two children, Bob and Barry. Bob survived D. Barry predeceased D, but he was survived by his two children Kathy and Peggy. D dies survived by Tom, Bob, Kathy, Peggy, and her (D's) grandmother.

C. D dies survived by his mother and his brother.

D. D dies survived by these maternal relatives: D's uncle Joe and Joe's son Lew and the two children of D's deceased Aunt Jane (Kathy and Mike).

E. D dies survived by his Uncle U, his first cousin (Aunt A's son) and his great-grandfather.

F. D dies survived by Uncle Joe and Great-Aunt Marie.

G. D dies survived by Cousin Jane and Great Uncle Jim.

H. D dies survived by Brother B, Mother M, and Grandparent GP.

I. D died intestate, leaving neither a spouse nor lineal descendants surviving her. On her mother's side, only D's first cousin (A) survived. On her father's side, D's first cousin's daughter (B) survived and D's great uncle (C) survived. Who takes what share of D's property under each of the following systems: (1) new UPC; (2) Georgia; (3) Degree of Relationship (Civil Law) System; (5) Massachusetts (Parentelic Preference) System?

Ga. Probate Court Standard Form #6 (adapted) WORKSHEET #6

INTERROGATORIES TO WITNESS TO WILL

PROBATE COURT OF COUNTY

Re: Petition of to probate in (Common) (Solemn) Form the purported Last Will and Testament dated ___________________, 19_____ , of , deceased.

To: Name Address

The following interrogatories are submitted to you under the provisions of Official Code of Georgia Ann. з53-5-23 as amended, in connection with the petition referred to above.

(Check A or B below:)

____ A. The original of said purported Will is exhibited to you herewith.

____ B. Attached hereto is a true photographic copy of said purported Will.

You are hereby requested to answer the following questions in the space provided with respect to said purported Will:

1. Is the signature "_______________________________________________" on the last page of the instrument your signature? 1. Answer:

2. Is the signature " " on the instrument the signature of the decedent named above? 2. Answer:

3. Did the decedent sign this instrument in your presence and in the presence of each other individual whose signature appears as a witness to the instrument? 3. Answer:

4. Did you witness this Will at the request of the decedent and in the presence of the decedent and in the presence of each other witness? 4. Answer:

5. Did the decedent know that he/she was executing his/her Last Will and Testament when he/she executed this instrument? 5. Answer:

6. Did the decedent execute this instrument voluntarily? 6. Answer:

7. Did the decedent appear to be of sound and disposing mind and memory at the time of execution of this instrument? 7. Answer:

Before me, the undersigned Notary Public or Clerk of the Probate Court, appeared , who, under oath, stated that the answers (s)he has given to the foregoing interrogatories are true and correct. This day of , 20 .

Notary Public/Clerk of Probate Court

Signature of Witness

Mailing Address:

Telephone Number:

Notes: (1) General instructions applicable to all Georgia probate court standard forms are available in each probate court. (2) If the interrogatories are submitted to a witness to a purported codicil, appropriate changes must be made in this form.

WORKSHEET #7 - Will Revocation

Answer the questions using the laws indicated in each question.

1. On Jan. 1, 1998, T writes a will leaving her house to A and the residue of her estate to X. On July 1, 1998, T writes Will #2 which does not revoke Will #1. Will #2 leaves her house to C and the residue of her estate to X. If T dies on Jan. 1, 1999, what happens? (GA.)

2. Suppose that Will #1 left T's house to A, $10,000 to B and the residue to X. Will #2 leaves her house to A, $100,000 to B, her jewelry to C and the residue to X. (GA.)

What happens to the house?

What happens to the jewelry?

What happens to the residue?

What does B get?

What would happen if new UPC Sec. 2-507 were applied?

3. T executes Will #1, leaving everything to her son and disinheriting her daughter, whom she detests. She is incorrectly informed that her son has abandoned his children (her grandchildren) so she expressly revokes Will #1 in its entirety with Will #2 which leaves everything to her grandchildren. She finds out that her information was incorrect, so she revokes Will #2 by tearing it up, telling witnesses that she really wants her son to get her estate after all. What result?

4. Mary Smith tells her lawyer that under no circumstances does she want her relatives to get any of her estate. She has the lawyer write a will leaving her estate to her friend John. One month later, she calls the lawyer and asks her to prepare a new will leaving everything to John and her friend Susan in equal shares. The lawyer calls back to tell her that the new will is drafted and ready for her signature. Mary destroys her old will before leaving for the lawyer's office and is killed in a car accident on the way there. (Doctrine of Dependent Relative Revocation)

5. Thomas Testator has executed a will leaving one-half of the estate to his friend Peter and one-half to his friend Cynthia. He has told the lawyer that he wants to leaves nothing to his relatives. One night, Thomas has a fight with Peter, so he crosses out Peter's name on the will and inserts the name of another friend Joseph. (new UPC)

6. Louise writes a will leaving $100,000 to her friend Chris and the residue of her estate to her spouse Jack. She also names Jack as the executor under her will and names Chris as the successor executor in the event Jack predeceases her or is otherwise unable to serve.

Worksheet #7 - page 2

a) What happens when the first child of Louise and Jack is born? (GA., new UPC)

b) What happens, instead, if Jack and Louise divorce before having any children? (GA., new UPC)

7. Peter and Paula have two children. Paula writes a will leaving her entire estate to Peter but, if he does not survive her, "to my children". After the will is executed, Peter and Paula have two more children.

A) What happens if Peter does not survive Paula?

B) What happens if Peter does survive Paula?

8) Sandra, who has 12 children, writes a will in which she leaves her entire estate to her youngest son. The will contains no language in contemplation of marriage. Two years later, Sandra marries Bill, and does not write a new will. She dies the next year. Who takes her estate? (GA)

A) Suppose that Sandra, who in fact already knew Bill at the time she wrote her will, left ╜ of her estate to her youngest son and ╜ of her estate to "my friend Bill." The will contains no language in contemplation of marriage. She later marries Bill and then dies. What result? (GA)

WORKSHEET #8 - Non-Probate Assets

1. Life Insurance: Debra Demise purchases a life insurance policy on her own life and one on the life of her brother Herbert. The face value of each policy is $75,000. Debra names Cynthia as the beneficiary of the policy on her life and herself as the beneficiary of the policy on Herbert's life.

a. What happens to the life insurance policy on Herbert's life if Debra predeceases him?

b. What happens if Debra dies with a will that provides the following: "I hereby bequeath the proceeds of the insurance policy on my life to my nephew Ned." (She never bothered to change the beneficiary on the policy itself.)

c. Suppose instead that Debra's life insurance policy on her own life named "the residuary beneficiaries of my estate" as the beneficiary. Her will says:

"I hereby bequeath the residue of my estate to my nephew Ned."

2. Multiple Party Accounts (See OCGA Secs. 7-1-810 et seq.): Molly Morte opens a bank account with $5000 and registers it in the names of "Molly Morte or Peter Penny." During Molly's life, who owns the money in the account?

a) Who can withdraw the money in the account while Molly is alive?

b) When Molly dies, who takes the money that is left in the account?

1) Does it matter if Molly has a will that says: "I leave my bank account to Judy Tate?

c. What if the account instead was registered as "Molly Morte, P.O.D. to Peter Penny." 1) Who owns the account during Molly's life?

2) What happens when Molly dies?

3) What if Peter predeceases Molly?

d. What if the account had been registered as "Molly Morte, Trustee for Peter Penny." 1) What happens when Molly dies?

2) What if Molly writes a will leaving "everything I own, including all my bank accounts, to my nephew Ned"?

WORKSHEET #9

LAPSE PROBLEM (Answer questions using GA. law & UPC)

T's will leaves her home to S, her son; her jewelry to D, her daughter; and the residue of her estate to her friend, X. S has one child (S-1). D has one child (D-1). X has one child (X-1).

What happens if:

a) S predeceases T?

b) D predeceases T?

c) X predeceases T?

d) D predeceases T and leaves no surviving children?

e) T's will said, "My home to S if he survives me" and S does not survive her?

f) X predeceases T and leaves no surviving children?

g) X & Y are the residuary beneficiaries and X predeceases T (and is survived by X-1)?

h) X & Y are the residuary beneficiaries and X predeceases T (but is not survived by X-1 or any other issue)?

i) T's will left all to her children, A, B, & C and B predeaceases T leaving surviving issue?

WORKSHEET #10

p. 1

ESTATE AND GIFT TAX MARITAL DEDUCTION

How much may an individual transfer during life and at death to his or her spouse without incurring any transfer tax liability?

In order to qualify for the marital deduction, what type of transfer must be made to the spouse?

TERMINABLE INTEREST RULE:

Is a LIFE ESTATE a terminable interest?

CASE #1: Suppose the donor spouse transfers property in trust to the donee spouse, to pay the income to donee spouse for life and then, at donee spouse's death, the property is to be paid out to those persons named as recipients in donee spouse's last will and testament - does this transfer qualify for the marital deduction?

CASE #2: The donor spouse in CASE #1 tells you that he is still not satisfied because he does not trust his spouse and he is afraid that she will exercise the power of appointment in favor of someone other than their children (perhaps her new boyfriend?) So donor spouse tells you that he wants to set up the trust this way: income to his wife for life (and the trustee may use the principal if necessary for the wife's benefit), and at wife's death, the property is to be distributed to their children. Now does wife have a terminable interest?

> Will this type of trust qualify for the marital deduction? P. 2

> Why?

> What is the QTIP exception?

QUALIFIED TERMINABLE INTEREST PROPERTY

If instrument (usually a trust) has these provisions:

then the trustee or executor may elect to treat the property as QTIP property and thus take the marital deduction

> Where does the trustee or executor make this election?

WORKSHEET #11 TRUSTS

1. Professor Radford gives Ms. Jones $100,000 in cash, saying:

a) "I am giving you this money so that you can take care of Mr. Brown's law school expenses. Invest the money wisely and use the income plus any portion of the principal that you deem necessary to be sure that he receives a good education. Do not spend any of the money on a new car, a cellular telephone, or new suits for Mr. Brown."

b) "It would make me very happy if you would pay some or all of Mr. Brown's education expenses with this money."

c) "It is my wish and desire that this money be used for Mr. Brown's education expenses. Invest the money and use the income to pay his tuition. Also, if he needs any books or other education-related items, use any necessary portion of the principal for that purpose, but don't use any of it to buy him a new car or a cellular telephone."

2. Professor Radford gives $75,000 in cash to A and B, saying the following:

to A: "Here is the money I promised to loan you. I am charging 8% per year interest. Please pay that amount directly to my children. Your loan is due in full ten years from today."

to B: "I am giving you this money to hold in trust for ten years. During the ten years, pay any income earned on the money to my children. When the ten years is up, return the trust principal to me."

3. Professor Radford states in front of the class on November 4, 2001: "As a sign of my deep affection for all of you, I hereby place in trust for your benefit all the money I will earn from consultations with Atlanta law firms in calendar year 2003."

a) Has a trust been created? What if she also delivered a signed and written version of this statement to each member of the class? What if the writing is notarized?

b) Is a trust created when she receives her first check from an Atlanta firm on January 15, 2003?

4. Professor Radford transfers $100,000 to Mr. McLendon, with the following instructions: "Please use this money for the benefit of my favorite students from the classes of 2001 and 2002." Is a trust created? If not, may Mr. McLendon keep the money?

5. Professor Carey transfers $50,000 to Professor Radford with the following instructions: "Please use this money to care for my two cats." Is a trust created? If not, may Professor Radford keep the money?

6. a) Professor Kinkopf is about to join a group who will live for two years in a "bubble" that is completely underground and completely isolated from the rest of society. Professor Kinkopf transfers the title to his house ("Greenacre") by deed to his good friend, Professor Radford, who promises orally that she will return Greenacre to him when the experiment in the bubble is over. When Professor Kinkopf returns, Professor Radford refuses to retransfer Greenacre, claiming that she has the legal and equitable ownership of the land.

b) Professor Stephens knows that he is about to be sued for malpractice. He transfers his palace by deed to his good friend, Professor Radford, who promises orally that she will return the palace to him when the danger of the lawsuit has passed. But several years later, when the statute of limitations has run, Professor Radford refuses to reconvey the palace.

c) Professor Wiseman has decided that he would like to own a whole street in Inman Park, but he is afraid that if the current homeowners discover his plan they will raise the prices of their homes. Professor Wiseman asks his good friends Professor Radford and Professor Podgor to take title to certain homes, even though he will actually be paying the purchase price from his own funds. He also asks his spouse (whose last name is not Wiseman) to take title to one of the homes. They each do so, with the promise to convey the land to him when he has succeeded in purchasing all the land on the street. Professor Podgor reconveys the land that was titled in her name, but Professor Radford and Professor Wiseman's spouse refuse to do so.

7. a) Professor Kaminshine writes a will in which he states: "I leave $3 million to Professor Radford." He and Professor Radford have had a discussion in which Professor Kaminshine explained that he wanted Professor Radford to use the money to support those of his GSU Civil Procedure students who chose to enter into public interest-type legal jobs. He did not write these instructions in his will because he did not want his other students to become jealous and because he knew he could trust his good friend Professor Radford.

b) Professor Emanuel writes a will in which she states: "I leave my $8 million estate to Professor Radford." Unbeknownst to Professor Radford, Professor Emanuel had promised to leave at least half of her estate to Professor Scott if Professor Scott would take care of her children during her last illness. Professor Scott made good on her promise and now wants Professor Radford to give her $4 million.

c) Professor Taylor writes a will in which she states: "I leave $3 million to Professor Radford to be used for the benefit of my favorite students." Professor Taylor has had discussions with Professor Radford in which she has told her who her favorite students were.

WORKSHEET #12

SPENDTHRIFT TRUSTS

A> Paula sets up a spendthrift trust for the benefit of her children, Henry, Terry, and Lucy. The trustee is to pay the income in equal shares to each of them and, when the youngest of them reaches age 35, the trustee is to divide the remainder among them. Henry is 34, Terry is 30, and Lucy is 27. (Use GA law)

1. Henry buys a car from CARS ARE US and the dealer extends him credit but does not take a security interest in the car. Henry has wrecked the car and stopped making payments to the dealer so the dealer asks the trustee to pay to it Henry's share of the income interest. What result?

2. Lucy is divorced and has stopped making her alimony payments. Her husband attempts to reach her income interest. What result?

3. Terry got in a fist-fight and has severely individual who has obtained a personal injury judgment against him and now seeks to have the trustee pay the judgment from the trust. What result?

B. Carl is a physician who has set up a retirement plan for himself, his nurse, and his office clerk. The funding vehicle of the plan is a trust. The plan contains the following provision:

No interest of any beneficiary under this plan may be attached, assigned, or alienated.

1. Carl has committed malpractice and the injured party would like to have access to his interest in his retirement plan. What result?

2. Carl is divorced and is behind on his child support payments. May his trust interest be reached to cover these payments?

SAMPLE WILL

Students: Please note that this is a sample will created for teaching purposes

and is not intended to be a "will form."

LAST WILL AND TESTAMENT OF

JOHN TIMOTHY JONES

State of Georgia

County of Fulton

I, JOHN TIMOTHY JONES, a domiciliary of Fulton County, Georgia, being of sound mind, do make, declare and publish this as my last will and testament, hereby revoking all other wills and codicils made by me.

Item I

a) At the time I make this will, I am married to Dianne Robert. All references in this will to "my wife" or "my wife Dianne" shall refer to my wife, Dianne Roberts.

b) At the time I make this will, my wife Dianne and I have two children, Katherine Marie and Harold James Jones. My wife and I contemplate that we may have or adopt more children. This will is made in contemplation of the birth or adoption of future children and shall not be revoked by such event.

(c) For all purposes under this will, whether for the determination of relationships or otherwise, adopted children and children born out of wedlock, whether mine or of any other person, shall be given exactly the same status as natural born and legitimate children.

Item II

Unless contrary to directions that I have left pursuant to a health-care power of attorney or other similar document dated after the date of this will, I hereby direct that my body be buried in a suitable manner and that the costs of my funeral and marker over my grave be paid by my Executor out of my estate.

Item III

I direct my Executor, as soon as feasible, to pay out of the residue of my estate all of my debts, including any charitable pledges, whether or not enforceable; the expenses of my last illness, funeral and burial; any debts and claims duly allowed against my estate; the expenses of administration of my estate; and any taxes assessed or imposed with respect to my estate or any part thereof, whether or not passing under this will.

Item IV

I give, bequeath and devise the following items of personal and real property to the persons herein named:

a) my Rolex watch to Harry Doe;

b) my vacation home in Hiawassee, GA. to Louise Jones;

c) my Chinese silk rug to Suzanne Jones;

d) $10,000 to Jack Jones;

e) $50,000 to the United Way of Atlanta, Inc., to be paid from the proceeds of the sale of my personal residence;

f) 100 shares of Coca-Cola stock to Jennifer Smith;

g) my 25 shares of IBM stock to Jill Smith.

If any of the individuals named in this Item IV shall not survive me by thirty (30) days, I direct that the testamentary gift given to that individual under this Item shall pass as part of the residue of my estate.

Item V

a) Except as otherwise provided in Item IV above, all my household furniture and furnishings, books, pictures, objects of art, silverware, jewelry, clothing, and other such personal effects, and any automobiles, boats, or trailers I may own at the time of my death I give and bequeath to my spouse if she survives me, otherwise then to my children who survive me, to be divided among them by my Executor in approximately equal shares.

b) I may leave with my Will or among my personal papers at the time of my death a written memorandum setting forth certain items of tangible personal property which I wish to devise to certain individuals. Although I realize that this list is not legally binding, I request my spouse or my children to respect my wishes as spelled out in this list and I direct my Executor to deliver the property on this listed to the designated individuals if my spouse or children should so consent..

Item VI

I give any interest in real property owned by me at my death to my wife, subject to any mortgage or lien thereon.

Item VII

a) I give the rest, residue, and remainder of my estate to my wife, Dianne, if she survives me.

b) If my wife does not survive me and all of my children have reached the age of 25 by the time of my death, I leave the residue of my estate as follows: I direct my Executor to divi de my estate into as many shares as I have children who survived me and predeceased children who have left surviving descendants. I direct my Executor to distribute one share to each of my surviving children and one share to the living descendants of each child of mine who has predeceased me, with that share to be divided per stirpes among the child's descendants.

c) If my wife does not survive me and one or more of my surviving children has not reached the age of 25 at the time of my death, I direct my Executor to deliver my property to my Trustee upon the following uses and trusts:

1) As long as one or more surviving child of mine is under the age of 25, I direct my Trustee to hold, manage, invest, and reinvest the property of the trust and to distribute in my Trustee's sole discretion that portion of the principal and income that is needed for the health, maintenance, support, and education of any such child who is under the age of 25, in accordance with the standard of living that child enjoyed at the time of my death;

2) When the youngest of my surviving children reaches age 25, I direct my Trustee to divide any remaining property in the trust into as many shares as I have children who are then surviving and predeceased children who have left surviving descendants and to distribute one share to each of my then surviving children and one share to the living descendants of each child of mine who has predeceased the termination of the trust, with that share to be divided per stirpes among the child's descendants.

3) Neither the principal nor income of the trust created by this item, nor the interest of any beneficiary therein, shall be liable for the debts of any beneficiary, nor shall the same be subject to anticipation or alienation or to seizure by any creditor of any beneficiary under writ or proceeding at law or in equity.

Item VIII

a) I constitute and appoint my wife Dianne Roberts my Executor under this will. Should my wife fail to survive me or otherwise be unwilling or unable to serve, I appoint my sister, Louise Hanover Jones, to serve as Executor. My Executor shall have no responsibility to account to any Court or any beneficiary under this will for property that passes outside this will and does not become a part of my probate estate.

b) I appoint my sister Louise Hanover Jones as Trustee of any trust created under this will. If she does not survive me or is otherwise unwilling or unable to serve, I appoint my friend Harry Doe to serve as trustee.

Item IX

a) I relieve my Executor and Trustee from giving bond, making an inventory or appraisal of my estate, and from making returns of her acts and doings to any Court or beneficiary.

b) My Executor and Trustee shall serve without compensation but may be reimbursed for reasonable expenses incurred in the administration of my estate or the trust.

c) In the administration of my estate, my Executor shall have the authority, without order or report to any court, to exercise all of the powers which are set forth in O.C.G.A. з 53-12-232, as amended, which Code section is hereby incorporated in this instrument by reference.

IN WITNESS WHEREOF, I hereunto set my name and affix my seal to this my LAST WILL AND TESTAMENT this ___ day of _______, 2002

____________________________

JOHN TIMOTHY JONES, Testator

ATTESTATION CLAUSE

The above and foregoing instrument was on the day and year above set forth and in the presence of each of us, the undersigned witnesses, acknowledged by JOHN TIMOTHY JONES as his LAST WILL AND TESTAMENT, and said instrument was on said date and in our presence voluntarily signed and acknowledged by JOHN TIMOTHY JONES, who appeared at that time to be of sound mind, and we, the undersigned in the presence of JOHN TIMOTHY JONES and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses this _____ day of ___________, 2002

_______________________ (Address) ______________________

Witness

_________________________ (Address) __________________________

Witness

AFFIDAVIT

STATE OF GEORGIA

COUNTY of ___________

Before me, the undersigned authority, on this day personally appeared JOHN TIMOTHY JONES, ______________________, and _______________________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and all of said individuals being by me duly sworn, JOHN TIMOTHY JONES, testator, declared to me and to the witnesses in my presence that said instrument is the last will and testament of the testator and that the testator had willingly made and executed it as a free act and deed for the purposes expressed therein. The witnesses, each on oath, stated to me in the presence and hearing of the testator that the testator had declared to them that the instrument is the testator's last will and testament or a codicil to the testator's last will and testament and that the testator executed the instrument as such and wished each of them to sign it as a witness; and under oath each witness stated further that the witness had signed the same as witness in the presence of the testator and at the testator's request; that the testator was 14 years of age or over and of sound mind; and that each of the witnesses was then at least 14 years of age.

_______________________

Testator

_______________________

Witness

_______________________

Witness

Sworn to and subscribed before me by _______________________,

testator, and sworn to and subscribed before me by

_______________________ and _______________________, witnesses,

this ______ day of ______________, 2002.

(SEAL)

(Signed)______________________________

Notary Public

FIRST CODICIL TO THE

WILL OF JOHN TIMOTHY JONES

State of Georgia

County of Fulton

I, JOHN TIMOTHY JONES, a domiciliary of Fulton County, Georgia, being of sound mind, do make, declare and publish this the FIRST CODICIL to my LAST WILL AND TESTAMENT dated June 5, 2002, and also republish all the terms of my will not in conflict with this FIRST CODICIL.

(A)

I hereby amend Item IV of my will by adding the following subsection (h) and (i):

(h) the sum of $75,000 to the American Cancer Society;

(i) the sum of $5000 to each individual who is employed by my company, JONESCO, Inc. at the date of my death.

(B)

I hereby add the following Item X to my will:

ITEM X

If any beneficiary under this will contests its validity or the validity of any of its provisions, or institutes any proceeding to prevent this will from being carried out in accordance with its terms, then all benefits for such beneficiary in this will are revoked and annulled and the benefits which such beneficiary would have received shall go to the Humane Society of the United States.

ATTESTATION CLAUSE

Witness: ______________________ (Address) ______________________

Witness: _________________________ (Address) __________________________

(Self-proving affidavit also attached)