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Wills, Trusts,
and Estate
Administration
Ninth Edition

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Janis L. Walter, J. D.
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University of Cincinnati

Emma Wright Fletcher, j. D.

Assistant Professor,
University of Cincinnati

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Printed in the United States of America

Print Number: 01 Print Year: 2021

1
Use of Intestate Terminology 114
CHAPTER 1 Advantages and Disadvantages
of a Will 117
The Estate Plan and the
Key Terms 118
Purpose and Need for a Will Review Questions 119
Scope of the Chapter 1 Case Problems 119
The Estate Plan 2 Practical Assignments 120
An Introduction to Wills 3

4
The Purpose of Wills 7
Will Substitutes 18 CHAPTER 121
The Need for a Will—a Conclusion 21
Wills: Validity Requirements,
Key Terms 21
Review Questions 22
Modification, Revocation,
Case Problems 22 and Contests
Practical Assignments 22 Scope of the Chapter 121
Requirements for the Creation of a Valid Will 121

2
Modification of a Will—Codicil v. New Will 134
C hapter 23 Revocation and Rejection
The Concept of Property of a Will 136
Will Contests 140
Related to Wills, Trusts,
Key Terms 147
and Estate Administration Review Questions 147
Scope of the Chapter 23 Case Problems 147
Property: Terminology and Classification 24 Practical Assignments 148
Statutes That Govern the Passage of Property 32

5
Forms of Property Ownership 34
Estates in Real Property 58 CHAPTER 149
Key Terms 67
Preparation to Draft
Review Questions 68
Case Problems 68
a Will: Checklists and
Practical Assignments 68 the Conference
with the Client

3
Scope of the Chapter 149
CHAPTER 69
The Conference with the Client: Initial Interview,
The Law of Succession: Checklists, and Other Matters 150
Death Testate or Intestate Preliminary Tax Advice and Other Matters 166
Guidelines for Preparation of a Will 168
Scope of the Chapter 69 Key Terms 177
Death with a Will—Testacy 70 Review Questions 177
Use of Testate Terminology 82 Case Problems 178
Death Without a Will—Intestacy 86 Practical Assignments 178

vii
vii

6 CHAPTER
Final Draft and Execution
of a Valid Will
179

9 CHAPTER
Probate and Estate
Administration
281

Scope of the Chapter 179 Scope of the Chapter 281

Contents of a Standard Will 180 Probate or Estate Administration 282
Sample Preliminary Will 200 Forms of Probate or Estate Administration 289
Additional Nontestamentary Documents 203 Commencing Probate and Estate Administration
Where to Keep the Will 220 Proceedings 291
Key Terms 223 Probate Court Procedure 298
Review Questions 223 Procedures before Estate Distribution 307
Case Problems 223 Distribution of the Estate
Practical Assignments 224 and Payment of Claims 324
The Final Account and Closing the Estate 335

7
Special Probate Proceedings 337
CHAPTER 225 Limitations on and Liability of the Personal
The Participants and the Representative 340
Key Terms 341
Proper Court
Review Questions 341
Scope of the Chapter 225 Case Problems 342
The Participants 225 Practical Assignments 345
Terminology Related to Probate Court

10
Proceedings 236
Key Terms 242 CHAPTER 346
Review Questions 242
Case Problems 243
Informal Probate
Practical Assignments 243 Administration
Scope of the Chapter 346

8
The Choice of Formal or Informal Probate 347
CHAPTER 244 Priority of Persons Seeking Appointment as
Personal Representatives: Personal Representatives 348
Application for Informal Probate and Appointment
Types, Pre-Probate Duties,
of Personal Representative 349
and Appointment Acceptance by the Registrar 351
Scope of the Chapter 244 Notice Requirements 353
Introduction to Estate Administration: A Duties and Powers of the Personal Representative
Dialogue 248 in Informal Probate 355
Preparation for Probate and Estate Step-by-Step Procedures in Informal Probate 358
Administration—General Overview 263 Key Term 365
Key Term 279 Review Questions 365
Review Questions 279 Case Problems 366
Case Problems 279 Practical Assignments 368
Practical Assignments 280

11 CHAPTER
Tax Considerations
in the Administration
369
14
Scope of the Chapter 475
CHAPTER
Estate Planning
475

of Estates Estate Planning 475

Scope of the Chapter 369 Documents Used to Create the Estate Plan 477
Introduction to Tax Concerns 370 Estate Tax-Saving Devices That Increase
General Tax Considerations 373 Deductions from the Gross Estate 479
Tax Returns 381 Estate Tax-Saving Devices That Reduce the Gross
Key Terms 398 Estate 481
Review Questions 398 Postmortem Estate Planning 491
Case Problems 398 Key Terms 494
Practical Assignments 398 Review Questions 494
Case Problems 495

12
Practical Assignments 495
CHAPTER 399

Introduction to Trusts
Scope of the Chapter 399
Terminology Related to Trusts 400
The Essential Elements of a Trust 405
15
Long-Term Care
Scope of the Chapter 496
CHAPTER 496

Termination of Trusts 425 Long-Term Care 496

Key Terms 426 Key Terms 511
Review Questions 426 Review Questions 511
Case Problems 427 Case Problems 512
Practical Assignments 427 Practical Assignments 512
Notes 512

13 Classification of Trusts,
the Living Trust, and
CHAPTER 428
A ppe n d i x A
Sample Forms
513

Other Special Trusts

Scope of the Chapter 428 A ppe n d i x B 567
Classification of Trusts 429
The Purposes of Trusts 443 Sample Marital Deduction
Informal and Incomplete Creation of a Trust 446 Testamentary Trust
Living (Inter Vivos) Trusts 449
Drafting a Living Trust 459
Glossary | 572
Trust Administration 468
Index | 580
Key Terms 473
Review Questions 473
Case Problems 474
Practical Assignments 474

Copyright 2022 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
Preface
Over the past few decades, the performance of quali- • Scope of the Chapter. The scope identifies and
fied and competent paralegals has raised their status as lists, in order, the topics to be discussed within the
legal professionals. The economic benefits paralegals bring chapter.
both to their employers (supervising attorneys) and to the • Terminology. Key terms are printed in boldface type
firm’s clients have proven their need and value. Therefore, and are defined in the margin at their first appear-
it is no surprise that their vocation has grown rapidly. ance. Key terms are also listed at the end of each
Although the current national market for paralegals remains chapter and defined in a comprehensive end-of-text
strong, it will be competitive. Students who choose quality glossary.
programs for their education and certification will have the
• Examples, hypothetical situations, sample state stat-
best employment opportunities.
utes, legal forms, exhibits, checklists, drafted docu-
The goal of Wills, Trusts, and Estate Administration is
ments, and actual cases. These are interspersed
to continue to provide a textbook that explains the basic,
throughout the chapters to help students under-
practical, everyday duties of a paralegal in the fields of
stand the concepts and procedures discussed.
law and prepares paralegals, such as yourself, to confi-
dently undertake and successfully accomplish these tasks. • Assignments. Frequent assignments within the
After using the text and obtaining work experience, you chapters require students to apply the chapter’s
will attain the level of competence that will enable you legal concepts or to perform tasks required of a
to perform your work with confidence and continue the practicing paralegal.
success and uphold the standards that your profession • Checklists. Checklists that collect relevant client
demands. data and information are included in the text;
The text is written primarily for paralegals, but others, “What You Do” lists and “You Must” notations in
such as trustees and personal representatives appointed the Estate Administration chapter emphasize and
to administer the estate of a deceased person, may find clarify the actual procedures and specific tasks
it useful. The text identifies the responsibilities and duties that the paralegal student must master to attain
that a paralegal can perform under the supervision of an confidence and competency.
attorney when drafting a will or trust or assisting with the • Ethical Issues. Found throughout the text, these
administration of a decedent’s estate. The text provides issues call attention to important ethical concerns
a review of the terminology and general principles of law that are relevant to the procedures discussed within
that are the bases for drafting wills and trusts, or planning the individual chapters.
and administering an estate, and identifies the participants
• Review Questions. Review questions are included
and the duties they must perform in these legal areas. New
at the end of each chapter and have been revised
material has been included to update the discussion of
to correspond to the content changes within the
inheritance rights for same-sex couples, estate tax changes,
chapters.
disposition of digital assets, partition of heirs property,
electronic wills, and special needs trusts. A chronological • Case Problems. Actual cases and hypothetical
treatment of the step-by-step procedures required to problems are included at the end of the chapters
complete the will and trust drafts and the administration to enable students to verify what they have learned
of a decedent’s estate is presented, including sample drafts and apply it to a specific problem or task discussed
and the executed forms needed to administer the estate. in the chapter.
Current federal and state tax information and the appro- • Points of Interest. Real-life contemporary cases or
priate tax forms are also discussed. issues are included to enhance student understand-
ing.
• Practical Assignments. Additional practical
Chapter Organization assignments have been added to the end of
To help students obtain confidence and proficiency, chapters to provide students with more hands-on
each chapter of the ninth edition contains the following skills that are required in the law office. Many
features. incorporate the Internet as a research tool so that
students can familiarize themselves with situations
• Objectives. The objectives focus students on what they will encounter as a practicing paralegal.
they will learn upon completion of the chapter.

x
x

Changes in the NINTH Supplemental Teaching

Edition and Learning Materials
• New legal topics. The ninth edition includes a dis- Instructor Companion Site
cussion of electronic wills, partition of heirs prop-
erty, tax changes, and special needs trusts. It also Additional instructor resources for this product are
includes updated information on the disposition of available online. Instructor assets include an Instructor’s
digital assets. This topic continues to be overlooked Manual, Educator’s Guide, PowerPoint® slides, and
by many practitioners in estate planning and ad- a test bank powered by Cognero®. Sign up or sign in at
ministration despite the prolific use of social media, www.cengage.com to search for and access this product
email, and digital accounts. Sample updated forms and its online resources.
addressing these issues have been included.
• Reorganization of chapters. Chapters have been Instructor’s Manual and Test Bank
reorganized to match the order in which a parale- The Instructor’s Manual and Test Bank have been
gal instructor is more likely to cover the materials. greatly expanded to incorporate changes in the text and
A student must understand the basic concepts of to provide comprehensive teaching support. They include
property before being able to determine what one the following:
would include in an estate. Once we have com-
• Chapter overviews
pleted the discussion of estate administration and
taxation of the estate, the focus switches to trusts • Case briefs
and their classifications. The ninth edition con- • Answers to text questions
cludes with estate planning and issues regarding • Test bank and answer key
long-term care.
• Statutes. State statutes that identify the variations PowerPoint Presentations
in state laws and emphasize the need for paralegals
to master the statutes of the state in which they live Customizable Microsoft PowerPoint® Presentations
and practice have been added or updated. focus on key points for each chapter. (Microsoft
PowerPoint® is a registered trademark of the Microsoft
• State-by-state charts. All charts have been up-
Corporation.)
dated where appropriate.
• Legal forms. Legal forms have been updated
within the chapters, and essential newly executed
Cengage Learning Testing Powered
estate administration forms, including selected tax by Cognero is a flexible online
forms, are included in Appendix A. system that allows you to:
• Surviving spouse. The definition has been ex-
• author, edit, and manage test bank content from
panded and a discussion added to reflect changes
multiple Cengage Learning solutions
in state laws as they apply to same-sex conjugal
couples; new information includes a state chart. • create multiple test versions in an instant
• Checklists. The checklists used for collecting data • deliver tests from your LMS, your classroom, or
and information for drafting wills, trusts, or an es- wherever you want
tate plan have been revised where necessary.
• Tax laws. The information in Chapter 11, including Start Right Away!
all pertinent charts, has been updated to reflect Cengage Learning Testing Powered by Cognero
current tax regulations. works on any operating system or browser.
• Uniform Probate Code. The Uniform Probate Code • No special installs or downloads needed
is available at law libraries and online; state ver-
• Create tests from school, home, the coffee shop—
sions can also be accessed online.
anywhere with Internet access
• Points of Interest. Information regarding current
issues and cases has been added to allow the stu-
dent to reflect on real-life situations and how they
What Will You Find?
might affect an estate practice. • Simplicity at every step. A desktop-inspired inter-
• Practical Assignments. More practical assignments face features drop-down menus and familiar intui-
have been added to increase the marketability of tive tools that take you through content creation
the student. and management with ease.

• Full-featured test generator. Create ideal assess • Cross-compatible capability. Import and export
ments with your choice of 15 question types content into other systems.
(including true/false, multiple choice, opinion
To access additional course materials, please go to
scale/Likert, and essay). Multi-language support, login.cengage.com. Use your SSO (single sign on) login
an equation editor, and unlimited metadata help to access the materials.
ensure that your tests are complete and compliant.

Acknowledgments

The authors would like to thank product manager Kye W. Haymore, J. D.

Abbie Schultheis, associate content manager Em- Georgia Piedmont Technical College
ily Olsen, and learning designer Mara Vuillaume for Clarkston, GA
trusting in us to complete this ninth edition revision of
Wills, Trusts, and Estate Administration. The process Elizabeth Marchioni
has been time-consuming and challenging, but their Wesley College
insight and guidance have been invaluable. Additional Dover, DE
thanks go to the reviewers of the text for their sugges-
tions and for ensuring that we stay current!

Please note that the Internet resources are of a time-sensitive nature and URL addresses may often change
or be deleted.

chapter Objectives
After completing this chapter, you should be able to:
• Explain the need for and purpose of an estate plan and • Recognize the terms used to identify the persons
the procedures and documents used to create a plan. who make, manage, administer, or benefit from wills,
• Explain the reasons why many Americans die without trusts, and a deceased person’s estate.
a will. • Identify the functions of fiduciaries including
• Identify the basic terminology of wills and trusts. guardians, conservators, trustees, and personal
representatives.
• Explain the function and purpose of wills.
• Identify examples of instances where a person may
• Identify and contrast the procedures and outcomes
not need a will.
when property is passed by testacy versus intestacy.
• Summarize the requirements for a legal will.

Scope of the Chapter

Estate law is a branch of law that concerns a person’s estate—one’s real and per-
sonal property. Through estate planning, one can make decisions and issue direc-
tives about their assets both during their lifetime and after. This chapter begins
with a general discussion on the need for an estate plan and the legal documents,
(e.g., wills and trusts) required for its creation. Basically, making an estate plan in
advance of one’s death allows one to identify who should receive their property,
who will manage it during the process, and who should be guardian of their minor
children, all while minimizing potential tax consequences. In the following chap-
ter, there is a discussion of what constitutes property. After a brief explanation of
the reasons people in this country die without wills, the terminology associated
with the law of wills, trusts, and estate administration is introduced as you begin
the process of mastering the terms and legal concepts essential to the practice of
law in these areas. A discussion of the purpose and use of wills and the necessity testament
of having a will, also called a testament, concludes this chapter. Another name for a will.

The Estate Plan

Estate planning is the determination and use of a method to accumulate, man-
age, and dispose of real and personal property by the owner of the property
during life and after death and to minimize the income, gift, inheritance, and
estate taxes due. The purpose of estate planning is to identify, preserve, and
increase the assets owned and provide for distribution of these assets, with the
least possible tax expense, to family members and institutions the owner wishes
to benefit. If estate planning is properly performed, the intent and desires of the
owner will be accomplished, and the beneficiary-recipients (primarily family) will
receive the maximum benefit and enjoyment of the property.
Unfortunately, most people are so involved in their daily activities that they
give little thought to the consequences of their deaths. As people grow older,
they do give thought to their mortality. Many realize the importance of making an
estate plan, which can include purchasing life insurance to protect their depen-
dents. However, people often die prematurely and fail to provide through a valid
will or an appropriate trust for those for whom they care. The consequences of
these acts of procrastination can be financially devastating.
The following chapters in this book explain in detail how to categorize prop-
erty and ways you can assist in the creation and use of trusts and wills to resolve
and avoid unfortunate consequences. It is also important that you are prepared
to assist those who have the responsibility for estate planning and administra-
tion, i.e., your supervising attorney and the personal representative of the dece-
dent’s estate.
In addition to the attorney, numerous other individuals are qualified to give
estate planning advice. They include trust officers from banks and trust com-
panies, accountants, investment advisers, financial planners, and life insurance
agents. Acting as a team, many of these advisers will take an active role in the
development of an appropriate estate plan for each client. The attorney you
assist will give advice on legal matters, the accountant will handle tax concerns,
the financial planner will advise on investments, and the life insurance agent may
play a key role in the formation of an insurance policy to ensure financial security
for the client’s family. While you assist these estate planners, your tasks will be to
gather information, maintain records, and communicate by phone or letters to
update and keep the client and planners informed of the plan’s progress. Such
Ethical Issue tasks require you to neither divulge confidential information nor submit or
propose unauthorized legal advice even in response to a specific request.

Point of Interest
Estate Planning Advice Is Everywhere!
Advertisements for estate planning tips and asset protection tools flourish on the Internet.
Television commercials are common for mutual funds and related products. More and more
insurance agents and stockbrokers are presenting investment/estate planning seminars.
Seniors are not the only target market. Presentations are made in the workplace, to civic
groups, at business expos—really, just about everywhere. In our wealthy country, there are
many companies that wish to influence how Americans spend and invest their money. Some
nonlawyers may have given legal advice to clients; therefore, clients may need to be reminded
that legal advice comes from attorneys. Other investment and retirement planning advice
needs to come from the appropriate professionals.
Everyone who lives a normal life span accumulates assets they want to transfer after
death. Real estate, cash, art, jewelry, securities, business ownership, boats, planes, antiques,
profit-sharing plans, pension plans, life insurance, IRAs, 401(k) plans, Social Security, and

other employment and government benefit plans are a few examples of the wide variety of
assets frequently acquired during one’s life. The total value of the property items that form an
individual’s estate can be considerable and may be much larger than initially anticipated; e.g.,
the value of an appreciated home and other unencumbered real estate, sizable pension plans,
and often the proceeds of life insurance policies alone may add substantially to the estate.

These assets and their value create a need to formulate a sound and appro-
priate financial plan—called an estate plan. The estate plan is an arrangement estate plan
of a person’s estate that takes into account the laws of wills, property, trusts, An arrangement of a person’s estate using
insurance, and taxes in order to gain maximum financial benefit of all these laws the laws of various disciplines (e.g., wills,
trusts, taxes, insurance, and property,) to gain
for the disposition (distribution) of the property during life and after death. If the maximum financial benefit of all the laws for
plan is properly formed and executed, it should produce the best possible eco- the disposition of a person’s assets during life
nomic security for the individual and the family. The estate plan encompasses the and after death.
creation of the estate, its maximum growth and conservation, and, ultimately, its
disposition
distribution. It necessitates active planning strategies during the individual’s life The distribution, transfer, or conveyance
and important postmortem decisions after death. If designed appropriately, the of property.
estate plan should meet all the individual’s objectives and provide (1) a comfort-
able retirement income; (2) financial protection for the family; (3) proper custo-
dial care if incompetency or any serious physical or other mental health problem
occurs; (4) a minimum of taxes and expenses throughout the implementation of
the plan; and (5) expedient, efficient, and harmonious distribution of the estate
according to the individual’s wishes after death.
The development of an estate plan for the client commences once the cli-
ent reaches a “comfort level” with the supervising attorney and paralegal, which
allows the paralegal to accumulate the personal and financial data.
After information has been obtained from interviews and questionnaires and
reviewed with the client, an estate plan is created using legal documents, (e.g.,
wills and trusts), and devices that save estate tax either by an increase in the
deductions from the gross estate or by reducing the gross estate itself.
The next sections discuss the role the will plays in the development of an
estate plan.

An Introduction to Wills
Unfortunately, many people in the United States die without a valid will—the will
written declaration of a person’s intended distribution of property after death. The legally enforceable written declaration of a
person’s intended distribution of property after
The result is they have no say in the way property they have accumulated over a
death.
lifetime will pass after they die.
Most young adults (those over 18) have few possessions, and dying is not
their everyday concern. Correspondingly, in their view, neither is the need for
a will. However, every adult owns some property, and most individuals want to
determine to whom this property will be distributed after they die. Why then do
so many people fail to make a will?
In the first place, almost everyone under 18 and adults who have a mental
deficiency cannot make a will because legally they are either too young or they
lack the mental health (sanity) required to create a valid will. Currently, financial
planners nationwide recommend that individuals make a will as soon as they
reach the age of majority, if only to give sentimental property to a favorite rel-
ative or friend. Some people fail to make a will because they are reluctant to
discuss their property and finances with “strangers”; others procrastinate and
then die prematurely due to an accident or unexpected illness; some do not
want to discuss or face their mortality; others cite cost as their reason (although

attorneys generally charge minimal fees for preparing simple wills); and, finally,
many people are aware that each state has laws that determine the passage of
their property to family and blood relatives if they die without a will, so they allow
their state to “make a will” for them. It seems no matter how much effort is spent
to encourage Americans to make a will, many are not convinced or motivated
to act.

POINT OF INTEREST
Oldest Known Will
In 1890, William Flinders Petrie, an English archaeologist, discovered the world’s oldest last
will and testament among the Egyptian pyramids. Written on a parchment/papyrus form, it
was determined that the will was actually written in 1797 bc. Before this discovery, legal
historians did not believe that any society had developed a legal mechanism that allowed for
the distribution of one’s assets upon their death but believed that the property automatically
passed to the eldest living son. It is interesting to note that the will had witnesses.

Statutory Requirements for a Will

As mentioned, one reason why the young and some adults die without a will
is that not everyone can legally make a will. To begin with, state laws impose
restrictions on the makers of wills and on the procedures for creating a valid will.
statutes Through its legislature, every state passes laws, called statutes, that determine
Laws passed by state and federal legislatures. the legal capacity (age) and testamentary capacity (sanity) requirements for
legal capacity a person to make a will. The maker or testator (male)/testatrix (female) must
Age at which a person acquires capacity to be old enough (usually 18) and be of sound mind (sane) at the time the will is
make a valid will, usually 18. made.
testamentary capacity In the case of Matter of Yett’s Estate, 44 Or.App. 709, 606 P.2d 1174
The sanity (sound mind) requirement for a (1980), a will was challenged on the basis that the testator lacked testamentary
person to make a valid will. capacity. The court held that to determine whether the maker of a will had
testator (male)/testatrix testamentary capacity, great weight is accorded the testimony of attesting
(female) witnesses who were present at the execution of the will. It is the testatrix-
A man or a woman who makes and/or dies with decedent’s capacity at that time, not her general condition over a span of time,
a valid will.
that determines testamentary capacity. In this case, the evidence indicated she
sound mind had this capacity even though she suffered from a malignant brain tumor. The
To have the mental ability to make a valid will. court also ruled the evidence failed to establish her illness, i.e., the tumor,
The normal condition of the human mind, not had caused insane delusions that resulted in a decreased share of her estate
impaired by insanity or other mental disorders.

Point of Interest
How Will the Internet Affect Estate Planning?
Perhaps more Americans will consider the benefits of estate planning and preparing a will.
Many estate planning services are prominently advertised on the Internet. Quizzes and self-
tests can be taken on the Internet to ascertain if one needs a will. Many sites offer links to
pages and/or sites that feature will writing, advantages of having a trust, minimizing estate
taxes, and other related topics. Will this additional exposure to the topic of estate planning
encourage more Americans to write a will? Only time will tell.
Caveat: Online access to information about wills, trusts, and estate planning is not a substitute
for sound legal advice from a practicing attorney in your state.

passing to the contestant of the will. Consequently, the court ruled that the
will was valid.
State statutes also establish formal requirements for the creation and
xecution of a valid will; e.g., most wills must be written, signed, and dated
e execution of a valid will
by the maker and attested and signed by two or three witnesses. To be properly The acts of the testator who writes and signs
the will and the two or more witnesses who
executed, a will must conform to the laws of the state in which it is made.
attest and sign it to establish the will’s validity.
Each state enacts (passes) laws on the execution of wills, and these laws are not
always the same. Laws differ on the method of writing that may be used (e.g.,
whether the will may be handwritten or holographic, typewritten, computer holographic will
generated and printed, audiotaped, or videotaped) and on the placement of A completely handwritten, signed, and usually
the testator’s signature (e.g., whether it must be on every page, only at the dated will that often requires no witnesses.
end of the will, or simply anywhere on the will). Individuals who are unfamiliar
with the laws of their state and try to create their own wills often make
mistakes or omissions concerning their property, naming their b eneficiaries, beneficiary
or attempting to satisfy the statutory requirements for a will. The result may A person who is entitled to receive property
under a will or to whom the decedent’s property
be an unintended, incomplete, or invalid will. To become a well-trained and
is given or distributed.
experienced paralegal, you need to learn and master the laws of your state
so you can explain the statutory requirements, terminology, and procedures
associated with wills and help clients execute a valid and meaningful will that
accurately fulfills their intent and desires. However, always be careful not to
provide legal advice!
Ethical Issue

Basic Terminology Related to Wills

Before proceeding further, it will be helpful to present some basic terminol-
ogy related to wills and estates. Exhibit 1.1 explains the terms used to indicate
whether a person died with or without a valid will.
The following terms relate to the actual making of a will.
• Execute. To perform or complete, i.e., to write and sign a will.
• Attest. To bear witness; to affirm or verify as genuine (e.g., the witness who
attests the testator’s intent, capacity, and signature on a will).
• Subscribe. To sign one’s name generally at the end of a will.
• Witnesses. Two or more persons who attest and subscribe (sign) the will.

Exhibit 1.1 Testacy versus Intestacy

Decedent
(the deceased or person who dies)
With a valid will Without a valid will
• Testacy. Death with a valid will. • Intestacy. Death without a valid will.
• Testate. Any person who makes and/or dies with • Intestate. Any person who dies without a valid
a valid will. The decedent’s property is distributed will. The decedent’s property passes to heirs
to beneficiaries and devisees. according to state laws called intestate
• Testator. A man who makes and/or dies with succession statutes.
a valid will.
• Testatrix. A woman who makes and/or dies with
a valid will.

Note: Today, common practice often uses the term testator for both sexes. In most cases, this text will refer to any person
(man or woman) who makes and dies with a valid will as a testator.

Other important terms relate to the administration of the decedent’s

estate.
• Estate. Also called gross estate. The property accumulated during a per-
son’s lifetime and owned at the time of death.
• Property. Anything subject to ownership; classified as real property or per-
sonal property.
•• Real property. Land, buildings, and things permanently attached to them.
•• Personal property. Any property that is not real property.
• Estate administration. The process of appointing a personal representa-
tive (executor or administrator) to collect, preserve, manage, and inventory
the decedent’s estate; notifying creditors to present their claims; paying all
the decedent’s debts and death taxes due; and distributing the remaining
estate property to beneficiaries named in the will or heirs according to state
law if the decedent died intestate, i.e., without a will.
• Probate. Court procedure by which a will is proved to be valid or invalid.
Probate has been expanded to include the legal process of the adminis-
tration of a decedent’s estate. The term is often used synonymously with
estate administration. For example, the phrase “to avoid probate” means
to avoid the process and procedures of estate administration. The probate
process is required to legally establish the beneficiary’s or heir’s title to a de-
formal probate cedent’s property. The formal probate (estate administration) or i nformal
A court-supervised administration of a probate is performed by the personal representative (e.g., executor or
decedent’s estate.
administrator) of the estate under the supervision of the appropriate court,
informal probate often called the probate court.
A court proceeding of a decedent’s estate with
• Probate court. The general name for the court that has jurisdiction (author-
limited or no court supervision.
ity) over the handling or administration of a decedent’s estate and the distri-
bution of the property; also may be called chancery, surrogate, or orphans’
court, depending on the state.
• Personal representative. The individual who is appointed by the probate
court to manage the estate of the decedent and either distribute the estate
assets according to a will or a state’s intestate succession statute when there
is no will. A personal representative includes the following:
•• Executor/executrix. The man or woman named in the will to carry out its
provisions, i.e., administer the decedent’s estate.
•• Administrator/administratrix. The man or woman appointed by the pro-
bate court to administer the decedent’s estate when there is no will.
Other specialized types and titles of personal representatives are discussed
in Chapters 7 and 8.
The following terms are used to refer to the recipients of the decedent’s
property.

Will Terms
• Beneficiary. Traditionally, a beneficiary is a person who is entitled to receive
property under a will or a person who has already received the property.
Under common law, a beneficiary received the personal property of the
decedent by will, but today, the term is used to describe a person entitled
to any gift (real or personal property) under a will. Therefore, a beneficiary
can include a devisee or legatee. This definition for beneficiary will be used
Uniform Probate Code (UPC) throughout the text.
A uniform law available for adoption by the
states to modernize and improve the efficiency • Devisee. A person who receives a gift of real property under a will; or as
of the administration of a decedent’s estate. defined by the Uniform Probate Code (UPC), the person who receives

a gift of either real or personal property. Throughout the chapters of the

book, relevant sections of the Uniform Probate Code will be cited.
• Legatee. A person who receives a gift of personal property under a will.

Intestate Terms
• Heir. Under common law, an heir was a person entitled by statute to receive
the real property of a decedent who died intestate. Today, an heir includes
persons who are entitled by statute to receive or have already received any
gift (real or personal property) of the intestate. In addition, although tech-
nically incorrect, the popular use of the word heir has also been expanded
to include persons who receive any gift through a decedent’s will. However,
throughout the text, the term heir will include persons who receive any
gifts by intestate succession statutes. See comparison chart on terminology,
Exhibit 3.1.
• Distributee. A person who is entitled to share in the distribution of an estate
of a decedent who dies intestate, or as defined by the UPC, any person who
has received property of a decedent from the personal representative other
than a creditor or purchaser.
• Next of kin. The nearest blood relatives of the decedent; or those who
would inherit from a decedent who died intestate, whether or not they are
blood relatives (e.g., a spouse).

The Purpose of Wills

The primary function of a will is to allow individuals to distribute their property
any way they choose. A will gives the testator the opportunity to accurately
describe the property owned at death and to designate to whom that property
is to be distributed. Because probate courts (see Exhibit 7.2) closely scrutinize probate court
the language of the will to determine the testator’s true intent, it is of paramount The court that has jurisdiction (authority) over
importance that no word or sentence within the will create a contradiction, ambi- the probate of wills and the administration of
the decedent’s estate.
guity, or mistaken interpretation that could cause confusion that would change
the testator’s plan or, worse, invalidate the will.

Example: In an early provision of her handwritten will, Selena Parker

leaves “all my antique furniture to my best friend, Maeve Thompson.”
Later in the will, Selena states that she wants the furniture to go to her only
daughter, Carissa. In the final clause of the will, she selects five pieces of this
furniture to be given to her housekeeper. The court could declare the will
invalid because of these and other contradictions.
Since the context of the general language and particular words in a will
is a major factor used to determine the testator’s intent, it is essential the will
be carefully constructed to ensure the testator’s plan for the distribution of the
estate property is clearly understood. The court in the case of Richland Trust Co.
v. Becvar, 44 Ohio St.2d 219, 339 N.E.2d 830 (1975) stated, “The function of the
court in a will construction case is to determine and apply the testatrix’s intention,
as expressed in the language of the whole will, read in the light of the circum-
stances surrounding its execution.”
domicile
Without a will, the statutes of the decedent’s domicile (home state) will The location (state) of a person’s true and legal
determine to whom the decedent’s property will be distributed with the excep- home.
tion that real property, i.e., land, buildings (house, cottage, apartment, or office
real property
building), and the like, will be distributed according to the laws of the state in Land, buildings, and things permanently
which the property is located. One of your major tasks and responsibilities will be attached to them.

to prepare drafts of the will and review them carefully with the client to ensure
Ethical Issue that the final draft contains complete, accurate, and clearly understandable
language to enable readers, especially the probate court, to agree on the
meaning of the will and the client’s intent.
ambulatory Since all wills are ambulatory, i.e., subject to change and revocation anytime
Subject to change and revocation anytime before death, a will takes effect only after the testator dies. While living, the testa-
before death; e.g., a will is ambulatory.
tor can review and modify the will whenever he wishes by the addition, deletion,
or modification of gifts, beneficiaries, clauses of the will, or fiduciaries (see further
discussion below under Appointment of Fiduciaries). Also, the testator can sell or
dispose of any property listed in the will before death. In the past, if the modifica-
codicil tion was a simple change (e.g., adding a new gift), a codicil or amendment to the
A written amendment to the will that changes will was sufficient. Today, codicils have become obsolete. With the change from
but does not invalidate it.
typewriter to word-processing software, which rapidly and easily produces legal
documents, a “new will” is the preferred and more appropriate choice for any
needed modification. Also, the use of a computer-generated and printed new will
eliminates the serious potential problem of locating two or more documents, i.e.,
a will and multiple codicils. For further discussion, see Chapter 4.
In no particular order of importance, the next paragraphs discuss the testa-
tor’s essential letter of instructions and some of the reasons for making a will.

Funeral and Burial Plans and the Letter

of Instructions
The best and most appropriate method for individuals who preplan their funeral
letter of instructions and burial arrangements is to include the plans in a letter of instructions and
A document that specifies the testator’s not in a will or codicil. One of the valuable uses of the letter of instructions is to
instructions for organ donation and funeral provide a written document that identifies and explains a person’s funeral and
and burial plans. It can also be an all-inclusive
checklist of various personal and estate
burial plans and is readily accessible for the testator’s review and modification.
information to help the family and personal After planning the funeral with a mortician (including costs and arrangements for a
representative locate and identify property and casket, church service, and reception) and purchasing a burial plot, individuals can
documents necessary to administer the estate. insert these plans into the letter of instructions and make them known to their fam-
ily, physician, religious adviser, and future personal representative by giving them
copies of the letter. Thus, the letter avoids a frequently unpleasant, and some-
times painful, problem the family faces when a loved one dies, often suddenly
and unexpectedly, and the will or codicil cannot be found or obtained before the
decedent-testator’s burial. The letter should not be kept in a safe deposit box. A
good place to retain one’s important documents is in a fireproof safe.
Preplanning and prepaying the costs of the funeral and burial takes a heavy
burden off the grieving family, both economically and emotionally. Alternately,
if the individuals prefer to be cremated and want to ensure that their wishes will
be followed without revealing the contents of the will, they can review the letter
containing the cremation plans with family members; if there are any concerns or
objections, they can be resolved prior to the person’s death.
Unfortunately, if a testator places funeral and burial arrangements only in the
will, all such preplanning may be an exercise in futility, either because the will is not
found until after the testator has been buried, or because the family simply disre-
gards or disobeys the instructions. Since statutes in most states allow the desires of a
surviving spouse and next of kin to legally supersede the plans of the testator, often
the family makes the final decisions concerning the disposal of the testator’s body
and the type of funeral or service. The following persons generally have priority in
surviving spouse deciding on funeral and burial arrangements including cremation: the s urviving
A spouse who outlives the other. spouse, an adult child, a parent, an adult sibling, the decedent’s guardian, and any
other authorized or obligated person (e.g., a personal representative or medical
examiner). All too frequently, serious disagreements arise over such questions as
whether there should be a burial of the body or cremation, a denominational or
nondenominational religious service, an open or closed casket, and the like.

Example: Nathan has told his family he wants to be cremated when he

dies. After his death, Nathan’s family, for religious reasons, decides to have
a traditional service without cremation. Often the decedent’s wishes are not
followed, as in this example.

Sometimes the testator’s family disregards the funeral plans outlined in the
will because the arrangements are too elaborate, too expensive, or unreasonable.

Examples: Xavier wants to be cremated and have his ashes flown to Paris
and spread from the top of the Eiffel Tower. Anthony wants a horse-drawn
carriage, 100-member band, and all-night party. Honoring such requests
may deplete the estate and create additional hardships for survivors.

The above problems can best be alleviated by preplanning and prepaying

the funeral and burial arrangements, discussing them with family and the funeral
director, and placing them in the letter of instructions. Caveat: Copies of the let-
ter must be given to the family and the future personal representative.
Even though the funeral and burial arrangements are often made by some-
one other than the personal representative (such as a surviving spouse or other
family member), the cost of all “reasonable” expenses is paid as a priority debt of
the decedent’s estate according to state law, as will be discussed in detail in later
chapters. It will be your job to keep accurate records of the costs and remind the
personal representative that these expenses remain “reasonable.” Personal
Ethical Issue
representatives are liable to the estate if they allow these costs to become exces-
sive due to their neglect.
If an individual intends to donate organs or remains for transplant or medical
research, the donation instructions must also be included in the letter instead of
a will, which may not be discovered in time to make a “useful” organ donation.
Although most states recognize donor designation on a driver’s license or other
organ donor documentation, it may not be enough, as many organ procurement
organizations and hospitals continue to seek consent from the donor’s next of
kin. Some states have passed legislation that seeks to avoid complications arising
from a donor’s next of kin opposing the organ donation. These laws generally
provide that a properly executed organ donation statement, not revoked by the
donor, must be enforced and cannot be overridden by any other person. Minn.
Stat. Ann. § 525.9212(2) (h) is typical, providing that, upon the donor’s death,
an unrevoked organ donation designation is enforced and does not require the
approval of, nor can it be opposed by, any other person. Even in states that call
for such protection of the donor’s wishes, it may still be advisable to inform the
family to ensure the donor’s wishes will be honored. Many states have estab-
lished organ donor registries. For the most part, they are operated in participa-
tion with the Department of Motor Vehicles and provide for donor designation
on the driver’s license. For further discussion of funeral and burial arrangements
and organ donation by the testator, see Chapter 6.

Assignment 1.1
1. Does your state have an organ, tissue, and eye donor registry?
2. Does your state provide for donor designation on the driver’s license?
3. Is online registration available for your state’s donor program?
4. What policy does your state have in place for informed consent to organ donation?
5. Does your state have legislation requiring that the organ donor’s wishes be
carried out?

The letter of instructions is potentially a multipurpose document but is not

legally enforceable. It is, therefore, not a substitute for a will. The letter’s purpose
can range from a document limited to funeral and burial plans, to an all-inclusive
checklist that identifies the testator’s personal and family history; assets and liabil-
ities, including digital assets; various insurance policies; financial advisers; health
and service providers; location of legal and personal documents; and many other
matters. A checklist may be drafted from a list such as that shown in Exhibit 1.2.
The subject matter list enables testators to select and create appropriate sched-
ules for their personal letter of instructions.

Example: A sample schedule in the letter of instructions containing assets

such as pension/retirement plans of the testator might appear as follows.

Pension/Retirement Plans Date _____________________

Location
Home safe/ Designated
Plan File cabinet beneficiary Present value
1. IRA—Traditional/Roth
____________________________ ____________ ____________ _________________
2. Self-Employed Retirement Plan
____________________________ ____________ ____________ _________________
3. 401(k) Plan—Traditional/Roth
____________________________ ____________ ____________ _________________
4. Profit-Sharing Plan
____________________________ ____________ ____________ _________________
5. Pension Plan
____________________________ ____________ ____________ _________________
6. Stock Bonus Plan/ESOP
____________________________ ____________ ____________ _________________
7. Other
____________________________ ____________ ____________ _________________

Example: Another common schedule identifies insurance policies.

Insurance Policies Date _____________________

Location
Home safe/
Type File cabinet Insurer Policy number
1. Life _____________ _____________ ___________________
2. Health _____________ _____________ ___________________
3. Accident _____________ _____________ ___________________
4. Disability _____________ _____________ ___________________
5. Homeowners _____________ _____________ ___________________
6. Automobile _____________ _____________ ___________________
7. Umbrella _____________ _____________ ___________________
8. Other _____________ _____________ ___________________

A third potential schedule could include a list of securities (stocks and bonds)
within the letter of instructions to enable the investor to review and regularly
update the entries so that necessary changes (e.g., number of shares, date
acquired, purchase price, date sold, sales price, and stockbroker), can be made.

Exhibit 1.2 Letter of Instructions—Subject Matter

Personal Information Financial Planner

Name/ (a/k/a) Insurance Agent (Broker)
Address Real Estate Agent (Broker)
Prior Residences (Past 10 Years) Stockbroker
Telephone Number (Home/Work) Other
Date/Place of Birth (Certificate) Liabilities
Social Security Number Automobile Loan
Religion Business Debts
Date of Marriage (Certificate) Charge Accounts
Date of Divorce (Decree) Contract for Deed Payments
Education Credit Card Charges
Employment History Installment Purchases
Military Record Loans on Insurance Policies
Other Mortgages on Real Property
Organ Donation/Funeral Plan Pledges to Charities,
Organ Donation Religious Organizations, etc.
Donor Card Promissory Notes
Driver’s License Provision Taxes
Registry Other
Health Care Directive Assets
Body Donation Automobile, Boat, etc.
Funeral Plan Bank Accounts
Prepaid Funeral/Burial Contract Business (Family) Ownership
Funeral Service Furniture/Household Goods
Burial/Cemetery Plot Notes, Contracts for Deed, etc.
Other Pension/Retirement Plans
Family Information Real Property
Relationship (Spouse, Children, Royalties/Patents & Copyrights
Grandchildren, etc.) Securities
Name Trusts
Address Other
Telephone Number (Home/Work) Additional Topics
Date/Place of Birth Credit Cards
Marital Status Insurance Policies
Date of Death Legal & Personal Documents
Other Location of Documents
Fiduciaries Medical & Dental Providers
Personal Representative Service Personnel
Successor Spiritual Advisers
Guardian (Minor or Incapacitated Persons) Safe Deposit Box
Personal Guardian Tax Returns
Property Guardian Other
Conservator Digital Assets (logins and passwords)
Successor Computer Hardware
Trustee Electronic Communications
Successor Online Reward Programs
Other Financial Accounts
Family Financial Advisers Domain Names
Accountant/Tax Adviser Intellectual Property
Appraiser Digital Collections
Attorney Business Accounts
Banker/Trust Officer Cryptocurrencies

If the letter is on a computer, assets such as securities can be evaluated daily for
future investment strategies.
Another potential schedule should include a complete inventory of all digital
accounts and assets, including usernames and passwords. It is important to keep
this document up-to-date, as account information changes frequently (especially
passwords). Family members do not need to know the details of the inventory
but should receive instructions so they know how to access the inventory when
necessary.
By keeping the letter of instructions current and distributing copies to fam-
ily members to inform them of its contents, especially funeral, burial, and organ
donation plans, the letter becomes the ideal method for the documentation of
this information in place of a will or codicil. Most importantly, it allows the testa-
tor’s organ donation and funeral plans to be implemented when time is of the
essence.

Apportionment for Death Taxes

apportionment clause By adding an appropriate apportionment clause to the will, the testator can
A clause in a will that allocates the tax determine the source from which death taxes (federal and state estate taxes and
burden among the residuary estate and the state inheritance taxes) will be paid. If the apportionment clause is explicit and
beneficiaries of the will.
included in the will, it determines the method of apportionment. However, if the
will has no apportionment clause or is ambiguous, the statute of the testator’s
domicile determines the method of apportionment. The following is an example
of an apportionment clause from West’s McKinney’s Forms, ESP, § 7:387.
I direct that all estate, inheritance, succession and transfer taxes and other
death duties, including any interest or penalties thereon, imposed or payable
by reason of my death upon or in respect of any property passing under my will
and required to be included in my gross estate for the purpose of such taxes,
shall be paid out of my residuary estate as an administration expense and shall
not be apportioned. Source: Thomson/West from West’s McKinney’s Forms.
Many states place the burden of estate and inheritance taxes on the
residuary estate residuary estate of the will, which is also the source of payment of creditors’
The remaining assets (residue) of the claims. Other states apportion federal and state death taxes among the various
decedent’s estate after all debts have been paid
persons (legatees or beneficiaries) on a pro rata basis (see N.Y. EPTL § 2–1.8).
and all other gifts in the will are distributed.
The advantage of having the testator make the apportionment decision
legatee rather than leaving it to state law is that customarily the property included in
A person who receives a gift of personal
the will’s residue clause, often a substantial portion of the estate, is left to the
property under a will.
surviving spouse and children. If this property is the primary or sole source of
pro rata payment of creditors’ claims and death taxes, these family members may be
According to a certain rate or percentage. unintentionally placed in a hardship situation by this major oversight. It is your
responsibility to recognize this mistake and bring it to your supervising attor-
ney’s attention. The attorney will explain its significance to the client and obtain
permission for you to redraft appropriate provisions of the will for the attorney’s
approval.
The Uniform Estate Tax Apportionment Act of 2003, which apportions fed-
eral and state death taxes among all beneficiaries on a pro rata basis, has been
adopted in some states and is incorporated in the UPC § 3–916. Remember: An
apportionment clause in a will overrules any apportionment method established
by state statute.

Property Distributions
With a will, the testator can avoid many ill-advised and awkward property distri-
butions. Consider the following example.

Example: Jacob Weizman dies intestate. His only heirs are five unmarried
daughters. Jacob’s estate assets consist of three farms (each farm is
located in Jacob’s home state (domicile) and is worth $200,000) and a total
of $100,000 in various banks. Jacob’s state statute, like the law in most
states, divides his assets equally among his five daughters. Dividing the
money is easy—each daughter receives $20,000. The three farms, however,
go to the five daughters in the form of co-ownership called tenancy in tenancy in common
common, which creates for each co-owner (each daughter) an undivided, The ownership of an undivided interest of real
equal interest in each farm and the right to equal possession of the entire or personal property by two or more persons
without the right of survivorship, which allows
premises of each farm. As a tenant in common, each daughter, on her each owner’s interest to be passed to their
death, can pass her $20,000 and her equal interest (one-fifth) in each farm beneficiaries or heirs upon death.
to the beneficiaries she names in her will; if she dies intestate, the law of the
tenant in common
state where the farms are located will determine who receives her one-fifth One of two or more persons who own property
interest and her $20,000. in a tenancy in common.
This situation becomes more complicated if, for example, two of the daugh-
ters want to live on one of the farms; the others want to sell them; or one or
more of the daughters marry. The point is clear: Even if serious personality con-
flicts do not occur, the occupation and management problems of the property
could create numerous and unfortunate consequences. This unpleasant situation
is avoided if Jacob discusses his assets with his daughters, so that, as a family,
they identify possible options and arrive at a compromise acceptable to all. In
this way, Jacob’s original plan to treat the daughters fairly is accomplished har-
moniously, and the solution could be included in his will.

Assignment 1.2
Review the facts in the Jacob Weizman example above. Draw up three different plans
that may be used as part of Jacob’s will to transfer the three farms and the $100,000 to
his five daughters in equal shares.

Provisions for Family Members

With a will, the testator can appropriately provide for a surviving spouse and the
special needs of individual children. In most cases, the surviving spouse receives
the majority of the testator’s estate. If the testator’s estate plan includes lifetime
gifts and specific provisions in wills and trusts, death taxes, especially federal and
state estate taxes, can be reduced, thereby maximizing the portion of the estate
family members receive. These tax reductions may be lost if the decedent dies
intestate. For a complete discussion of these problems and tax concerns, see
Chapter 14.
When a spouse and minor children survive a decedent who failed to make
a will, the intestate succession statutes of most states pass the estate prop- intestate succession statutes
erty to the spouse individually, or for life, and to the children equally as ten- Laws passed in each state establishing the
manner in which a decedent’s property will
ants in common. Since the children are minors, a probate court needs to appoint
be distributed when death occurs without
a g uardian (see Appointment of Fiduciaries on the next page) to handle any a valid will.
property in which they have an interest. In such a case, the surviving spouse is
appointed guardian; however, the appointment may cause additional expense guardian
The person or institution named by the maker
and needless delay if the property has to be sold promptly (e.g., to provide funds of a will or appointed by the court when there
for the family’s necessary living expenses or if the family needs to relocate). For is no will to care for the person and/or property
this reason, it is often best to leave the decedent’s estate solely or as a life estate of a minor or a handicapped or incompetent
to the surviving spouse without minor children becoming the co-owners. This can person.
be accomplished using a will and/or a trust.

The only person a testator cannot disinherit is a surviving spouse since the
spouse has a statutory right to a share of the decedent spouse’s estate. This is
spouse’s statutory, forced, or called the surviving spouse’s statutory, forced, or elective share. Every state
elective share has a statute with a provision for the benefit of the surviving spouse that makes
The spouse’s statutory right to choose a it impossible for the deceased to leave the surviving spouse nothing. However,
share of the decedent spouse’s estate instead
of inheriting under the provisions of the
a decedent who dies testate can disinherit children. Of course, this happens at
decedent’s will. times, but more commonly, the testator wants the children to receive the estate
equally. Due to special circumstances, the testator may grant unequal shares of
the estate to meet the children’s different needs (see the examples below).

Examples: In her will, Kristin Nielsen

1. leaves the entire estate to her three children equally.
2. leaves the majority of the estate to her child with special needs and smaller
shares to her other two children.
3. intentionally and specifically states that one, two, or all three of her children
(naming them) are not to receive any assets of the estate.
In the above examples, if the decedent, Kristin Nielsen, dies intestate, the
children’s special needs will not be met, but none of them will be disinherited. If
the children are her only heirs, they will receive equal shares.
Numerous other problems concerning family members’ inheritance rights
are discussed in detail in Chapters 3 and 5.
ward
A minor or incompetent person placed under
the care and supervision of a guardian by the
Appointment of Fiduciaries: Guardians
probate court. and Conservators
incompetent person With a will, a testator can appoint guardians for a ward (minor or incompetent
A person under legal disability (e.g., a mentally person). Guardians appointed by the court are either personal guardians or
incapacitated person).
property guardians. Both guardians are a type of fiduciary, a person in a posi-
personal guardian tion of trust and confidence who controls and manages property exclusively for
An individual or trust institution appointed by a the benefit of others and owes the highest duty of obedience, diligence, and
court to take custody of and care for a minor or
good faith to those the person represents. Fiduciaries include guardians who act
an incompetent person.
for minors or incompetent persons, trustees who act for beneficiaries of a trust,
property guardian and personal representatives who act for beneficiaries of a will or for heirs when
An individual or trust institution appointed by a
there is no will. The fiduciary is required to give absolute loyalty to the benefi-
court to care for and manage the property of a
minor or an incompetent person. ciary or minor while performing fiduciary duties, i.e., all transactions that con-
cern the property held in trust.
fiduciary
A personal guardian is an adult who has custody, control, and responsibility
A person, such as a personal representative,
guardian, conservator, or trustee, who is appointed for the care and supervision of the minor child until the child reaches the age of
to serve in a position of trust and confidence and majority, usually 18. If the decedent-testator is survived by the other natural or
controls and manages property exclusively for the adoptive parent, that parent by law immediately becomes the personal guard-
benefit of others. By law, the fiduciary’s conduct is ian of the minor. An attempt by the testator to appoint some other person as the
held to the highest ethical standard.
minor’s guardian is not valid or binding, see Tex. Prob. Code Ann. § 676(b). This
heir situation frequently occurs when married couples divorce, and one of the former
Traditionally, a person, including a spouse, who spouses is given custody of the minor children of the marriage. If the custodial
is entitled by statute to the real property of an
spouse dies while the children are still minors, the attempt in a will to name a per-
intestate. Today, a person entitled to any gift
(real or personal property) of the intestate or in sonal guardian who is not the other natural parent (the former spouse) would fail.
the decedent’s will. When there is no other surviving natural parent, the appointment of a per-
sonal guardian in the custodial parent’s will is generally upheld by the court, and
fiduciary duty
A duty or responsibility required of a fiduciary to any further hearing on custody is unnecessary, see Mass. Gen. Laws Ann. ch. 201
act solely for another’s benefit that arises out of § 3. The appointment of a personal guardian is discussed in detail with examples
a position of loyalty and trust. and cases in Chapters 6 and 9.
adoptive parent When parents die without a will or fail to appoint a guardian in a will, the
A person who legally adopts another individual, probate court must select both a personal and a property guardian based on
usually a child. what is “in the best interests of the child.” Godparents are not legal guardians.

Although they acknowledge responsibility to help raise a child by reason of a reli-

gious ceremony, they do not have legal standing, i.e., they are not recognized as
having the legal authority of parents. Usually, the court appoints a family member
who may or may not have been the choice of the decedent. Without a will, the
appointment of a guardian can lead to a time-consuming and expensive contest
in probate court between relatives. Unfortunately, the dispute often has lasting
harmful effects on the children.

Example: Tal Anderson dies intestate. Tal had often talked to Katherine
and Joe Merrill, Tal’s close friends, about his desire to have them “take care
of my children if I should die.” Even though Katherine and Joe inform the
probate court of Tal’s wishes and their willingness to be the guardians, the
probate court will most likely appoint blood relatives of Tal who agree to be
the guardians.
Example: The only blood relative of Ana Herrera, age 27, is her
grandmother, age 70. Due to her grandmother’s age and uncertain health,
Ana asked her close friend, Rosie Cooper, if she would be the guardian of
Ana’s 8-year-old daughter. Rosie agrees, but Ana dies intestate. The probate
court will likely appoint the grandmother as guardian, if she is willing to
conservator
serve, even though she was not Ana’s choice.
A fiduciary; an individual or trust institution
Unlike the case of the personal guardian, the surviving natural or adop- appointed by a court to care for and manage
property of an incompetent person.
tive parent or the person appointed by the testator’s will is not automatically
appointed the property guardian for the decedent’s minor or incompetent chil- testamentary trust
dren. Such people may be appointed and often are, but the decision is made by A trust created in a will. It becomes operational
only after death.
the probate judge, who appoints the guardian.
The property guardian can be a natural person or a legal person, such as a inter vivos or living trust
corporation, bank, or trust department, which happens infrequently. The property A trust created by a maker (settlor) during
guardian’s responsibility is to take exclusive control of and manage the property the maker’s lifetime. It becomes operational
immediately after the trust is created.
inherited by a minor or incompetent person in order to preserve and increase its
value. The guardian must perform the management and investment functions trust
according to strict standards set by the court and state law. These standards can- A right of property, real or personal, held by
one person (trustee) for the benefit of another
not be changed, broadened, or made less rigid by the terms of a will even if that (beneficiary).
was the testator’s intent.
A property guardian for an incompetent person whom the probate court settlor
A person who creates a trust; also called donor,
has found to be incapable of managing property is, in a few states, called a
grantor, creator, or trustor.
c onservator, another type of fiduciary. Typically, conservators are appointed for
individuals who, due to advanced age or an illness such as Alzheimer’s disease, legal title [of a trust]
The form of ownership of trust property held
are under a legal disability that makes them mentally incapable of managing
by the trustee, giving the trustee the right to
their property. States usually require that a conservator or guardian be appointed control and manage the property for another’s
whenever an incompetent person owns property obtained through gifts or inher- benefit, i.e., the holder of the equitable title.
itance. Property guardians or conservators are discussed further in Chapters 6
trustee
and 9. The person or institution named by the maker
of a will or a settlor of a trust to administer
property for the benefit of another (the
Creation of Testamentary Trusts beneficiary) according to provisions in a
A testator can create either a testamentary trust, i.e., a trust within the will, testamentary trust or an inter vivos trust.

which becomes operational only after the testator’s death, or an inter vivos or beneficiary [of a trust]
living trust, which takes effect immediately after the trust is created. A trust is The person or institution who holds equitable
title and to whom the trustee distributes the
a legal agreement in which one person (the settlor) transfers legal title (own-
income earned from the trust property and,
ership) to one or more persons (the trustee or co-trustees) who, as a fiduciary, depending on the terms of the trust, even the
holds and manages the property for one or more beneficiaries who receive the trust property itself.
equitable title, which gives them the right to the benefits of the trust. The set- equitable title [of a trust]
tlor gives up possession, control, and ownership of the property to the trustee A right of the party who holds the equitable title
who is specifically instructed by the trust terms how the trust is to be managed or beneficial interest to the benefits of the trust.

and the trust property invested so that income produced (profits) can be distrib-
uted to the beneficiaries. All three positions (settlor, trustee, and beneficiary) can
be held by the same person, but the fundamental characteristic of a trust is the
trust splits title of the trust property into legal title (transferred to the trustee) and
equitable title (given to the beneficiary), and requires that no one person can
be the sole trustee and the sole beneficiary since that person would hold both
titles, merging them and invalidating the attempt to create a trust. The solution
to this problem is to have either co-trustees or co-beneficiaries so the “split title”
requirement is satisfied.

Examples:
1. A trust is not created if the settlor, Kevin Ford, names himself as both the
sole trustee and the sole beneficiary.
2. A trust is created if the settlor, Kevin Ford, names himself sole trustee and
Carly Hamilton and himself as co-beneficiaries.
3. A trust is created if the settlor, Kevin Ford, names Carly Hamilton and him-
self as co-trustees and himself as sole beneficiary.
All trusts, whether testamentary or inter vivos (living), are either revocable
or irrevocable. A revocable trust may be changed, amended, or canceled by the
settlor while living, but, generally, revocable trusts become irrevocable when the
settlor dies. Irrevocable trusts are final from the moment of their creation. They
cannot be changed or revoked. Caveat: Unless the trust document contains a
clause that expressly reserves the right or power of the settlor to revoke the trust,
the trust is irrevocable. The significance and consequences of revocable or irrevo-
cable trusts are discussed in Chapters 12 and 13. One of the most common uses
bypass trust of a testamentary trust is the bypass trust (also called Trust B of an A-B trust,
An estate planning device whereby a deceased credit shelter trust, family trust, and residuary trust) established for the benefit of
spouse’s estate passes to a trust as a life estate
a surviving spouse. By limiting the surviving spouse’s right to a life estate in the
for the surviving spouse rather than entirely
to the surviving spouse, thereby reducing the principal of Trust B, the property is not included in the estate of the surviving
likelihood that the surviving spouse’s estate will spouse when that spouse dies; thus, it avoids federal estate tax. By reducing
be subject to federal estate tax. federal taxes in this manner, more of the estate property is free to pass to future
principal beneficiaries, usually the children (see the detailed discussion in Chapter 14). If a
In trust law, the capital or property of a trust, as person dies without a will (intestate), this tax advantage would be lost.
opposed to the income, which is the product of Another common reason for creating testamentary or inter vivos (living)
the capital. trusts is to counter and avoid the rigid control and considerable expense of a
federal estate tax property guardian for minors or a conservator for incompetent persons. The fol-
A tax imposed on the transfer of property at lowing examples illustrate the advantages of trusts.
death.
Example: In a trust, trustee Maurice Benson can be given discretion
income to choose among accumulating trust income, distributing income, or
Interest, dividends, or other return from even distributing the principal of the trust for the benefit of one or more
invested capital.
beneficiaries. The stricter regulations imposed on a property guardian or
conservator would not grant this freedom.
Example: After reviewing the pros and cons of wills, trusts, and
guardianships, Joshua and Taylor Price, who have two minor children,
decide on the following: Since he has a terminal illness, Joshua drafts and
executes his will, which leaves his entire estate to his surviving spouse,
Taylor. He is confident that she will provide for their minor children and
eventually transfer the balance of the property to them in her own will.
Since no property is left to the minor children, guardianships (with their
corresponding control and expense) are avoided. In the event that Taylor
dies first, Joshua adds a contingent testamentary trust, which leaves his
estate to the trust for the benefit of his minor children.

Other reasons for the creation of trusts include the following:

• Trusts are used to provide professional management of the trust property
for those beneficiaries (including a settlor-beneficiary) who do not have the
time, inclination, or skill to manage the property themselves or, because of
illness or incapacity, are no longer able to do so.
• Trusts known as public (charitable) trusts can be established for religious, public (charitable) trust
scientific, charitable, literary, or educational purposes under IRC § 170(c)(4). A trust established for the social benefit either
of the public at large or the community.
• Trusts can prevent spendthrift beneficiaries, including children, from reck-
lessly depleting the trust fund and can also prevent their creditors from
obtaining the trust principal on demand for the payment of debts.
• Trusts can save taxes and avoid probate expenses if properly established.
A complete discussion of the formation, drafting, and types of trusts, includ-
ing the popular living trust, is included in Chapters 12 and 13.

Selection of a Personal Representative

The personal representative is a Uniform Probate Code term that identifies personal representative
the man or woman who manages, administers, and distributes a decedent’s The person who administers and distributes
a decedent’s estate according to the will or
estate according to the terms of a will or the appropriate state intestate suc-
the appropriate intestate succession statute. It
cession statute if the decedent dies without a will; see UPC § 1–201(35). A per- includes executor and executrix when there is a
sonal representative includes an executor (man) or executrix (woman) who will and administrator and administratrix when
is selected by a testator to carry out the terms of a will or an administrator there is no will.
(man) or administratrix (woman) who is appointed by the court to administer executor or executrix
the estate of a decedent who dies intestate. Consideration by the testator should A man or woman named in the will by the
be given in the selection of the personal representative, especially if the estate maker to be the personal representative of
contains digital data. A personal representative who is competent to handle an the decedent’s estate and to carry out the
provisions of the will.
estate that includes digital data may require special skills and responsibilities.
Throughout the remaining chapters of the text, the words personal representa- administrator or administratrix
tive will be used to identify any person who has the responsibility to administer The man or woman appointed by the probate
court to administer the decedent’s estate when
the estate of a decedent who dies either testate or intestate. The various types
there is no will.
of personal representatives and the important role they play in administering the
decedent’s estate are discussed in Chapters 7, 8, and 9.
Like trustees and guardians, the personal representative is a fiduciary who
owes fiduciary duties (acts of trust, loyalty, and good faith) to the recipients of the
decedent’s estate (e.g., beneficiaries, heirs, and devisees). To acquire the authority
and powers of the position, a personal representative must be appointed by the
appropriate court, often called the probate court. Generally, in testacy cases, the
court appoints the person nominated in the testator’s will unless that person is
not qualified under state law. Whether a person dies with or without a will, states
usually have statutes that list the persons who are not qualified to be personal rep-
resentatives (see Tex. Prob. Code Ann. § 78). The Texas list includes the following:
1. An incapacitated person (e.g., minors or incompetent persons)
2. A person convicted of a felony
3. A nonresident (natural person or corporation) who has failed to appoint a
resident agent to accept service of process
4. A corporation that is not authorized to act as a fiduciary in the state
5. A person whom the court finds “unsuitable”

Example: Leslie Powell’s will names Aaron Shroeder to be the personal

representative. Due to previous associations, Leslie’s family and heirs feel
extremely hostile toward Aaron. The hostility of beneficiaries toward a
nominated personal representative does not ordinarily or automatically

disqualify the person as “unsuitable.” However, see Matter of Petty’s Estate,

227 Kan. 697, 608 P. 2d 987 (1980), where the court refused to appoint the
will’s nominee to be personal representative, because the hostility between
the beneficiaries and nominee could lead to unnecessary difficulties and
expenses for the estate.
Caveat: If a testator selects a personal representative and also in the will
names an attorney to assist the personal representative with the estate
administration, the estate is not legally bound to this selection. Personal
representatives have the right to select an attorney of their own choice
to represent the estate. It is a violation of the Code of Ethics for the
Ethical Issue attorney or paralegal to suggest that they be named in the will for
such purpose.
Chapter 3 of this text discusses death with a will (testacy) and death without
a will (intestacy) in more detail.

Will Substitutes
In rare cases, it may not be necessary to have a will. However, the decision should
be made only after consultation with an attorney knowledgeable about estate
planning. It may be possible, especially with small estates, to employ “will sub-
stitutes” instead of a will to distribute a decedent’s estate. Examples of will sub-
stitutes include (1) joint tenancy, (2) life insurance with an identified beneficiary,
(3) inter vivos trusts, (4) inter vivos gifts, (5) community property agreements, and
transfer-on-death deed/ (6) transfer-on-death deeds/transfer-on-death affidavits or beneficiary
transfer-on-death affidavit or deeds. The value and kinds of property owned by the client and the needs of
beneficiary deed the beneficiaries generally determine whether a will should be executed. How-
A type of deed or affidavit properly executed
and recorded that allows the transfer of real ever, as a safety precaution, it is a good idea to always have a will. Clients may
property to a designated beneficiary without forget about establishing an asset as right of survivorship, the survivor may die
probate. The transfer does not take effect until simultaneously with the client, the client may fail to identify a beneficiary or the
the death of the owner. beneficiary may predecease the client who forgets to name a new beneficiary.
All of these scenarios would cause the client’s asset(s) to pass through intestacy,
instead of the way the client intended.
• Joint tenancy
joint tenancy Example: Jean and her fiancé, Darnell, own a house in joint tenancy
Ownership of real or personal property by two valued at $90,000. They also have $1,200 in a checking account and $4,000
or more persons with the right of survivorship.
in a savings account, which are both joint tenancy accounts. They each own
other separate property. Both Jean and Darnell are salaried employees and
contributed equal sums to purchase the home and to the checking and
savings accounts. Jean dies without a will. As the sole surviving joint tenant,
Darnell will receive all the joint tenancy property, which was the couple’s
intent. Jean’s individual or separate property has to go through probate.
The tax consequences in such cases will be discussed in the tax chapter
(see Chapter 11). A more complex problem could result, however, if the
unmarried couple were to die in a common disaster and both die intestate.
• Life insurance
Example: As another example of a will substitute, assume that Tierra, a
single parent, had only one major asset, a $100,000 life insurance policy
through a group plan with premiums paid equally by Tierra and her
employer. Her son, Christian, is named as sole beneficiary. If Tierra dies
testate or intestate, Christian will receive the proceeds of the life insurance
policy, which do not go through the probate process. Under current tax law,
the proceeds are not taxable income or a gift to Christian, so no income or
gift taxes are owed (see Chapter 14).

• Inter vivos (living) trust

Example: Serena owns an apartment building valued at $300,000.
During her lifetime she places this property in an inter vivos (living) trust,
naming her brother, Garrett, trustee, and two friends, Vaughn and Renee,
beneficiaries. In the trust instrument, Serena directs the trustee to pay
the income from the trust property—the apartment building—to the
beneficiaries, Vaughn and Renee, during their lifetimes and, at the death
of the last of the two to survive, to convey the apartment building and land
to the children of Renee (Jayden and Cody) as tenants in common. Even if
Serena dies testate or intestate, the distribution of the trust income and the
trust property will be determined by the trust instrument. Any remaining
property in Serena’s estate at her death will be distributed according to the
provisions of her will or according to the state intestate succession statute.
For a more complete discussion of the use of an inter vivos (living) trust as a
substitute for a will, see Chapter 13.

• Inter vivos gift

Example: Anyone may dispose of property while alive by gift. During his
lifetime, Sherman gives his relatives and friends $100,000 in cash, $50,000
in stocks and bonds, a pickup truck, and his collection of Chinese figurines.
Once these gifts are delivered (executed), Sherman has no legal right to
demand their return. Gift taxes may be due and payable on the inter vivos
gifts if Sherman exceeds the current $15,000 (as of 2020) per donee annual
exclusion. The exclusion is indexed annually for inflation and may change.
Annual gifts over a lifetime can reduce the size of the donor’s estate and
result in death tax savings. For a complete discussion of the gift tax laws,
see Chapters 11 and 14.

• Community property agreement

Example: The state of Washington has a document authorized under its
community property law called the “community property agreement.” The
agreement acts as a will substitute and is often used by a married couple
domiciled in Washington to transfer, at the death of the first spouse, all the
community estate to the surviving spouse without the necessity of probate.
These agreements, with varying provisions, are also used in Alaska, Idaho,
Texas, and Wisconsin.

• Transfer-on-death deed, transfer-on-death affidavit, or beneficiary deed

Example: Missouri authorizes the use of a beneficiary deed to avoid
probate. This type of deed conveys an interest in real property to a
designated beneficiary that does not take effect until the death of the
owner. It is legal only if executed and recorded with the recorder of
deeds where the real property is located (see Mo. Rev. Stat. § 461.025).
In addition to Missouri, the states of Alaska, Arizona, Arkansas, California,
Colorado, District of Columbia, Hawaii, Illinois, Indiana, Kansas, Maine,
Minnesota, Montana, Nebraska, North Dakota, Ohio, Oklahoma, Oregon,
South Dakota, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin,
and Wyoming have authorized the use of either a transfer-on-death deed,
transfer-on-death affidavit or beneficiary deed (see Exhibit 1.3). Two other
states, Florida and Michigan, have a document known as an enhanced life
estate deed, or “Lady Bird” deed, that functions like a transfer-on-death
deed. However, this type of deed is not common. As the trend appears to
be toward permitting TOD deeds, or some form, more states may be added
in the future.

Exhibit 1.3 Transfer-on-Death Deed

Kansas Transfer-on-Death Deed, copyrighted by the Kansas Bar Association.

Reprinted with permission.

Basic Requirements for a Legal Will—A Review

The testator must have the following:
• Legal capacity—generally age 18 or older
• Testamentary capacity—be of sound mind (sanity)
The will must
• be written, i.e., typewritten, computer generated and printed (today’s
method), or handwritten (allowed in some states).
• be signed by the testator usually in the presence of witnesses.
• be dated (in most states).
• be attested and signed by two witnesses.
• select a personal representative (executor or executrix) to administer the
decedent’s estate.
See a detailed discussion of these requirements in Chapter 4.

The Need for a Will—a Conclusion

In summary, there are numerous reasons why so many Americans die without a
will. They include the following:
1. Some people, by statute, cannot make a valid will (e.g., minors and incom-
petent persons).
2. Everyone does not need a will. Some people have limited or no property;
others have no heirs (and believe they have no need); and some are satisfied
with the “will” their state makes for them, i.e., the intestate succession statute.
3. Some attempt to create a will, but it is declared invalid by the probate court
due to improper execution.
4. Some people, concerned about the cost of a will or their reluctance to
discuss their finances, procrastinate too long and die prematurely. Others
simply do not bother.
5. Some use “will substitutes” instead of wills to distribute the decedent’s
estate.
As Chapter 2 will explain, the need for a will is determined by the kind of
property the individual possesses and the form of the possessor’s ownership, but
one should carefully consider why a will is beneficial to most people.

Key Terms
testament Uniform Probate Code (UPC) intestate succession statutes
estate plan probate court guardian
disposition domicile spouse’s statutory, forced,
will real property or elective share
statutes ambulatory ward
legal capacity codicil incompetent person
testamentary capacity letter of instructions personal guardian
testator (male)/testatrix (female) surviving spouse property guardian
sound mind apportionment clause fiduciary
execution of a valid will residuary estate heir
holographic will legatee fiduciary duty
beneficiary [of a will] pro rata adoptive parent
formal probate tenancy in common conservator
informal probate tenant in common testamentary trust

inter vivos or living trust bypass trust administrator or administratrix

trust principal transfer-on-death deed or
settlor federal estate tax beneficiary deed
legal title [of a trust] income joint tenancy
trustee public (charitable) trust
beneficiary [of a trust] personal representative
equitable title [of a trust] executor or executrix

Review Questions
1. Explain the reasons why many Americans die and procedures presented in future chapters
without wills. and your practice in the fields of wills, trusts, and
2. What does it mean to say the maker of a will has estates, write out your own definition of each key
testamentary capacity? How does it differ from term in this chapter. Are your definitions essentially
legal capacity? the same as those in the text?
3. List your state’s statutory requirements for the 5. Can a will be changed or revoked? Explain.
execution of a will. How do your state’s require- 6. List and explain the various reasons or purposes for
ments for a valid will differ from those of other making a will.
states? 7. Identify six examples of “will substitutes” and
4. Since the terminology included in this chapter is discuss how each might possibly be used to elimi-
essential to your understanding of legal concepts nate the need for a will.

Case Problems
Problem 1 Problem 2
Cho Wang handwrote a three-page will in pencil. At the Raj Gupta died testate. He was survived by 27 nieces
end of the business day, he took the will to an attorney and nephews. Raj had little formal education and had not
and asked that it be typed. Since Cho mentioned that he learned how to write his signature; therefore, he signed
was leaving on a vacation and would be out of state for his name with a mark, i.e., an “X.” Raj’s nieces and neph-
one week, the paralegal for the firm asked if he would like ews challenged the validity of his will. They claimed the
to sign the handwritten (holographic) will. Cho did sign the will had been improperly executed because he signed
will, but he also stated that he would return after his trip with an “X.”
to sign “his will,” i.e., the typed will. While on vacation, A. Is a testator’s mark, i.e., an “X,” sufficient to satisfy
Cho suddenly became ill and died. Answer the following: the signature requirement for a valid will in your
A. Is a signed holographic will a valid will in your state? state? Cite the statute or case law.
B. Are witnesses required for a holographic will? B. In your opinion, if there is no statute or case law
C. Should the executed holographic will operate as on this issue in your state, how should your state
Cho’s will pending the execution of the typewritten court decide this issue? See and compare In re
will? Explain. See and compare In re Teubert’s Hobelsberger’s Estate, 85 S.D. 282, 181 N.W.2d 455
Estate, 171 W.Va. 226, 298 S. E.2d 456 (1982). (1970).

Practical Assignments
1. Draft a clause that would be included in a letter of determine who would inherit from you if you died
instruction that contains instructions regarding the without a will.
donation of your organs upon death. 3. Examine the last will and testament of Elvis Presley
2. Locate your state statute regarding intestate (see http://www.ibiblio.org/elvis/elvwill.html). Who
succession. Apply the statute to your estate to did Elvis appoint as the executor of his estate? Did
Elvis name an alternate executor? If so, who?

chapter Objectives
After completing this chapter, you should be able to:
• Identify, explain, and classify the various kinds of • Discuss why states are allowed to enact laws that
property, such as real and personal property or govern the passage of property.
probate and nonprobate property. • Explain why courts do not favor the creation of joint
• Recognize the terminology associated with property tenancies between parties other than spouses.
law. • Identify the community property states.
• Distinguish the various forms of ownership of real and • Differentiate between community and separate
personal property. property.
• Explain the requirements for the creation and function • Explain the kinds, methods of creation, and
of various forms of ownership. characteristics of estates in real property.

Scope of the Chapter

Everyone owns some kind of property (e.g., a home, a car, savings and check-
ing accounts, appliances, clothes, jewelry, websites) or stocks and bonds. While
alive, the owner of certain property called probate property (discussed below)
has the opportunity to transfer it by gift, sale, or the creation of an inter vivos (liv-
ing) trust. After the owner dies, probate property can pass by will, testamentary
trust, or inheritance, according to state law. Without property, a will is unnec- inheritance
essary, and a trust cannot be created. Thus, property is the essential compo- Property that descends (passes) to an heir
nent that establishes the need for and purpose of wills and trusts. You must fully when an ancestor dies intestate.
understand the law of property and its terminology before you can draft wills or
trusts and assist with the administration of a decedent’s estate. This chapter intro-
duces the terminology of the law of property; explains its association with wills,
trusts, and estate administration; and discusses related statutes and court deci-
sions. Also introduced are ways or forms in which property can be owned; each
form of ownership is identified, defined, and explained. Estates in real property
(freeholds and leaseholds) are also covered.

Property: Terminology
and Classification
Property is anything subject to ownership. It is classified as either real property or
personal property.

Real Property
Real property (also called realty or real estate) is property that is immovable,
fixed, or permanent. It includes the following:
• Land
• Structures affixed to land such as houses, apartment buildings, condomin-
iums, and office buildings
• Objects attached to land and buildings called fixtures
• Things grown on land except those for the purpose of sale (see below)
Owners of real property also have rights to airspace above their land and to
the earth below it, including any minerals contained within.

Fixtures
fixture A fixture is real property that may once have been personal property but now
Something so attached to land as to be deemed is permanently attached to land or buildings. An example of a fixture that grows
a part of it (e.g., real property that may have
on land is a tree; however, growing crops that are annually cultivated for sale like
once been personal property but now is
permanently attached to land or buildings). corn, wheat, and vegetables are not fixtures. They are considered to be personal
property. Carpeting nailed to the floor and a built-in dishwasher are examples of
fixtures in buildings.
State courts apply three tests—annexation, adaptation, and intention—to
determine if personal property has been converted into a fixture.
1. Annexation means that the personal property has been affixed or annexed to
the real property.
2. Adaptation means that the personal property has been adapted to the use
or purpose of the real estate. The court asks whether the property is neces-
sary or beneficial to the function or enjoyment of the real estate.
3. In most states, however, the intention of the person who annexed the
personal property to the real property has been the controlling test that
determines the existence of a fixture.
Courts throughout the country vary substantially on what constitutes a
fixture, but generally, though not always, doors, fences, windows, stoves, refrig-
erators, electric lights, wall-to-wall carpeting, and the like are held to be fixtures.
Compare the following cases.
• Mortgage Bond Co. v. Stephens, 181 Okl. 419, 74 P.2d 361 (1937), in
which the court held that a refrigerator was a fixture, as it was built into the
cabinets.
• Elliott v. Tallmadge, 207 Or. 428, 297 P.2d 310 (1956), in which the court
held that a refrigerator was personal property, as it could be moved at will
by simply unplugging it.
Tenants often install fixtures on property they rent. A tenant farmer who
raises chickens may build a shed to shelter them or install gasoline tanks to avoid
long drives to town for fuel; a tenant who rents an apartment may add carpeting,
bookshelves, and a doorbell for comfort and convenience. Previously, any such
items a tenant attached to the real estate could not be removed when the tenant
vacated. Today, however, tenants may remove property they have attached to

real estate if the property falls under one of three exceptions, known as tenant’s
fixtures.
1. Trade fixtures. Property placed on the land or in a building to help the tenant
carry on a trade or business.

Examples: Smokehouse, machinery, barber chairs, greenhouse, pipe

organ.

2. Agricultural fixtures. Property annexed by the tenant for farming purposes.

Examples: Wooden silo, toolshed, henhouse, hay carrier, irrigation plant.

3. Domestic fixtures. Property attached by the tenant to make an apartment

more comfortable or convenient.

Examples: Carpeting, dishwasher, clothes dryer, gas stove, bookshelves.

Assignment 2.1
Henry recently sold his movie theater to Helma. Which of the following items are fixtures
(real property) that now belong to Helma? Give reasons for your answers.

Seats in the auditorium Popcorn machine Furnace in the building

Computers in the office Movie projector Framed movie poster
Carpeting in the theater Movie film Mirrors in the restrooms

Transfers of Real Property

When real property is transferred by gift or sale, the title or ownership is con-
veyed to the donee or buyer by a formal written document called the deed . deed
Some of the more important terms associated with transfers of real property A writing signed by the grantor whereby title to
real property is transferred or conveyed to the
include the following:
grantee.
• Transfer. An act by which the title to property is conveyed from one party
to another. A party may be a person, a corporation, or the government.
• Conveyance. Any transfer by deed or will of legal or equitable title (see
below) to real property from one person to another.
• Disposition. The parting with, transfer, or conveyance of property.
• Grant. A transfer of title to real or personal property by deed or other
instrument.
• Grantor. The person who conveys (transfers) real or personal property to
another. In the law of trusts, the creator of a trust is also called the settlor
or trustor.
• Grantee. The person to whom real or personal property is conveyed.

Example: Cody conveys Blackacre, a farm, by deed to his friend Noah.

Cody is the grantor; Noah is the grantee. The act of conveyance of
Blackacre to Noah is a disposition.
• Deed. A written, signed, and delivered legal document that transfers title
or ownership of real property such as land or buildings from a grantor to a
grantee.

• Title. In the law of property, the right to and evidence of ownership of real
or personal property.
• Legal title. A title that is complete, perfect, and enforceable in a court of
law, granting the holder the right of ownership and possession of property.
In the law of trusts, the trustee receives legal title that provides the right
of ownership and possession but no beneficial interest in the property that
exists in another (i.e., the holder of the equitable title who is the beneficiary
of the trust).
• Equitable title. In the law of trusts, a party who has equitable title has the
right to have the legal title transferred to him or her. The person, i.e., ben-
eficiary, who holds the equitable title has the beneficial interest, which in-
cludes the right to the benefits of the trust, and is regarded as the real owner
although the legal title is placed in possession and control of the trustee.

POINT OF INTEREST
Use Technology to Access Real Estate Records
Land record offices and for-profit companies are making real property records, including
deeds, mortgages, and tax information, accessible through the Web. Information about
a parcel of property may be accessed by owner’s name, street address, or tax identification
number.

• Interest. The terms interest and title are not synonymous. An interest enti-
tles a person to some right in the property, but that right may be less than
title or ownership.
• Vest. To deliver possession of land. At death, state law automatically vests
title to the decedent’s real property in beneficiaries of the will or in heirs if the
decedent dies without a will “subject to” the right of the personal represent-
ative to devest or take away the property in order to pay claims of the dece-
dent’s creditors (see Cal. Prob. Code § 7000 and Tex. Prob. Code Ann. § 37).
• Devest or divest. To withdraw or take away title from the possessor.
The following example illustrates the use of these and earlier terms.

Example: Keisha agrees to buy Malik’s cottage. At the closing, Malik

transfers title to the cottage by the conveyance of a deed to Keisha. Since
Malik is the person (seller) who transfers real property (the cottage) to
another (Keisha, the buyer), Malik is also the grantor. Keisha is the grantee.
Clearly, Keisha has an interest in the cottage, and in this case, her interest
is the ownership (title) of the cottage. One year later, Keisha dies in a car
accident without having made a will.
Title to real property (cottage) owned by the decedent (Keisha) vests in her
heirs the moment she dies. If Keisha had substantial debts, her personal
representative may have a right to devest (take away) the property from
the heirs and sell it to pay creditors’ claims. However, title to Keisha’s
personal property passes to her personal representative, who uses the
property, if necessary, to pay taxes due and creditors’ claims or transfers it to
beneficiaries of the will or to heirs if there is no will.
In another scenario, Keisha creates an inter vivos (living) trust and names
her friend Gabe as trustee. The trust property is an apartment building,

which is conveyed by deed into the trust and splits title to the apartment so
that Gabe, the trustee, holds legal title and Keisha’s daughter, Naomi, the
beneficiary, holds the equitable title. As trustee, Gabe has fiduciary duties
to manage and maintain the apartment for Naomi’s benefit until the trust
terminates when he transfers the apartment building to Naomi according to
the terms of the trust.

Personal Property
Personal property is movable property. It is everything subject to ownership that
is not real estate and includes such items as clothing, household furnishings,
stocks, money, contract rights, digital assets, and life insurance. A chattel is an chattel
item of personal property. Generally, any item of personal property.
At death, title to a decedent’s real property vests directly in the decedent’s
beneficiaries or heirs. Title to the decedent’s personal property passes to the
personal representative (executor or administrator) appointed to handle the
administration of the decedent’s estate. If creditors must be paid, the decedent’s
personal property is generally used first to obtain the necessary funds and real
property is the last asset used to pay estate debts.
Personal property can be subdivided into two categories.
1. Tangible personal property. Property that has a physical existence (i.e., it can
be touched and is movable).

Examples:

Merchandise Animals Tools

Clothing Household goods Furniture

Appliances Jewelry Works of art

Books China Stamp/coin collections

Television sets Cars Boats

Airplane RVs Computers

2. Intangible personal property. Property that has no physical existence, i.e.,

it cannot be touched. Although such property has little or no value in itself,
it establishes and represents the right to receive something of value. The
ownership of intangible property is established by various documents, such
as bank statements, stock or bond certificates, and written contracts for life
insurance and annuities.
Intangible personal property also includes a chose in action , a right to chose in action
bring a civil lawsuit to recover possession of personal property or receive A right to bring a civil lawsuit to recover money
money damages (e.g., payment of a debt). An important, yet often overlooked, damages or possession of personal property.
area that qualifies as intangible personal property includes digital assets.
Digital assets are those that are stored electronically, either locally or in the
cloud. In addition to images, photos, music, and videos, digital assets include
reward points, electronic mail, electronic money, social media accounts, online
accounts, websites, video gaming accounts, intellectual property, and domain
names.

Examples: A 10-dollar bill is just a piece of paper; however, it

represents the right to receive property worth 10 dollars. A promissory
note by itself has no value, but it represents the right to receive payment
from a debtor. The 10-dollar bill and the promissory note are intangible

personal property. Examples of intangible personal property include the

following:

Cash Savings and checking accounts

Profit-sharing plans Shares of corporate stock
Annuities Corporate and government bonds
Pension plans; life Negotiable instruments (checks and promissory
insurance proceeds; notes); government benefits, such as Social
patent rights Security and veterans’ benefits
Copyrights Individual retirement accounts
Trademarks; royalties Claims against another person for debts, property
damage, personal injury, or wrongful death
Bitcoins Frequent flier miles
Podcasts Online poker account
Blogs Electronic mail

Assignment 2.2
Classify each of the following items by placing a mark (X) in the most appropriate column.

Tangible Personal Intangible

Item Real Property Property Personal Property
Car
Cash in checking account
Right to renew apartment lease
Hotel loyalty points
House
Life insurance proceeds
Furniture
eBay account (for the sale of your property)
Stocks and bonds
Furnace
Personal injury lawsuit
Clothing
Dishwasher (built-in)
Dishwasher (portable)
Mobile home on wheels
Houseboat
Tax refund check
Television roof antenna
Bookcase
Trees on land
Gun collection
Corn growing on farm
Online blog

Your major role, as part of the legal team, will be to help the personal rep-
resentative find, collect, preserve, appraise, and liquidate or distribute the dece-
dent’s personal assets. These tasks will be discussed in more detail in future
chapters. In addition, you will have to list all the decedent’s assets and clas-
sify them as real property or tangible or intangible personal property. Since an
accurate classification is essential to the administration of the estate, you must
learn to distinguish the different types of property and be sure to verify your
classification with your supervising attorney.
Ethical Issue

Probate Property or Probate Estate

Most decedents own one or both of the two types of property (real and per-
sonal). Together, these assets are often called the decedent’s estate. An estate estate
(also called a gross estate) is all the property, real and personal, owned by any All property owned by a person while alive or
living person, or all the assets owned by a decedent at the time of death. at the time of death. Also called gross estate,
probate estate, probate assets, or probate
property.
Example: Oxana Drosdov is single. She owns her home, furniture,
household goods, and clothes. She has money in savings and checking
accounts, stocks and bonds, and valuable jewelry. She maintains a blog
and has electronic email, along with a social media account. She also owns
a lake cottage with a boat and motor. All these property items, real and
personal, constitute Oxana’s estate or gross estate.

Not all property owned by the decedent can be passed by will, however.
The only type of property a decedent can distribute through a will or by intestate
succession, if there is no will, is probate property, which is also referred to as probate property
probate assets, the probate estate, or simply the estate. Decedent’s property that is subject to estate
Probate property is all real or personal property that the decedent owned administration by the personal representative.

either individually as a single or sole owner, called ownership in severalty severalty (tenancy in severalty)
(t enancy in severalty) , or as a co-owner with another person or persons in Ownership of property held by one person only.
the form of ownership called tenancy in common. Probate property is subject to
estate administration by the personal representative (executor or administrator)
according to the terms of the will or, if the decedent died intestate, without a will,
according to the appropriate state intestate succession statute.

Example: Kiara Morgan owns her house, car, furniture, social media
accounts, email account, and savings account in severalty; i.e., she is the
sole owner of each of these items of property. Kiara also owns a boat and
condominium equally with her best friend, Breana, as tenants in common.
If Kiara dies and her debts and taxes due are paid, all of this property,
including her one-half interest in the boat and condominium as a tenant in
common, will be probate property and will pass to her named beneficiaries
or devisees if she has a will or to her heirs if she dies intestate.

Probate property includes the following:

• Real property owned in severalty (single ownership) or in a tenancy in
common
• Personal property owned in severalty or in a tenancy in common
• Life insurance proceeds payable to the estate
• Monies owed the decedent for mortgages, promissory notes, contracts for
deed, loans, rents, stock dividends, income tax refunds, interest, royalties,
and copyrights
• Gain from the sale of a business (traditional or online)
• Social Security, railroad retirement, and Veterans Administration benefits

• Civil lawsuit for money damages

• Testamentary trusts
Probate property is subject to creditors’ claims and federal and state death
taxes (see below).

Nonprobate Property or Nonprobate Assets

Some of the real and personal property owned by the decedent at the time of
death cannot be transferred by will or inheritance; therefore, it is not subject to
probate. This is the decedent’s nonprobate property and includes the following:
• Real and personal property owned and held in joint tenancy, tenancy by
the entirety, or, in certain states, community property with the right of
survivorship
• Real and personal property transferred into an inter vivos (living) trust prior
to the settlor’s death
• Real property subject to transfer under a transfer-on-death deed or bene-
ficiary deed
Totten trust • Money placed in a bank account as a Totten trust, or as a pay-on-death
A bank deposit of a person’s money in the (POD) account
name of the account holder as trustee for
another person. • Securities, including brokerage accounts, registered in transfer-on-death
(TOD) form
• Proceeds of a life insurance policy payable to a named beneficiary (recipient
of the money) and not to the decedent’s estate as long as the decedent
incidents of ownership retained the incidents of ownership (see discussion in Chapter 14)
An element or right of ownership or degree of
• Employment contract benefits that contain a named beneficiary (not the
control over a life insurance policy.
estate) such as profit-sharing plans, pension plans, group life insurance,
401(k) plans, employee stock ownership plans (ESOPs), and self-employed
retirement plans
• Annuity contracts with a named beneficiary (not the estate)
• Individual retirement accounts (traditional and Roth IRAs) with a named
beneficiary (not the estate)
• U.S. savings bonds payable on death to a named beneficiary (not the estate)
• Property owned in tenancy in partnership (see glossary)
Each of these types of nonprobate property goes directly to the named ben-
operation of law eficiary or to the surviving joint tenant(s) or partners by operation of law. If the
Rights pass automatically to a person by the decedent’s entire estate consists of nonprobate property, there is no need for
application of the established rules of law, estate administration (probate).
without the act, knowledge, or cooperation of
the person.
Nonprobate property is real or personal property that is not part of the dece-
dent’s probate estate. Therefore, this property is
• not distributed according to the decedent’s will.
• not distributed according to intestate succession statutes if there is no will.
• not subject to estate administration (probate) of the decedent’s estate.
• not subject to a surviving spouse’s claims.
• not subject to claims of the decedent’s creditors.
However, nonprobate property is part of the decedent’s gross estate for fed-
eral and state death tax purposes; i.e., it is subject to federal and state estate
taxes and state inheritance tax, and, therefore, you must identify and keep accu-
rate records of each property item for the preparation of required tax returns.
See Exhibit 9.10 and Chapter 11.

Digital Assets and Their Effect on Estate Planning

Historically, information was stored using a variety of physical resources (e.g.,
photo albums, letters, or journals). There has been a major shift in how we pre-
serve our data with much now being stored electronically. This data can include
sentimental items such as emails, photos, and music as well as items of eco-
nomic value, such as client lists, outstanding accounts, reward points, crypto-
currency, and online gaming items. Quite simply, the Revised Uniform Fiduciary
Access to Digital Assets Act (RUFADAA) defines a digital asset as anything that
is stored electronically in which individuals have a right or interest—a definition
that is always evolving. Combined, these digital assets make up one’s digital
estate. As the number and value of digital assets held by the average person
increases, how these assets are disposed at an individual’s death or incapacity
has becoming increasingly more problematic. With the proliferation of digital
technology, a major portion of an estate may include digital assets. Prior to the
enactment of the RUFADAA and its predecessor, the UFADAA, a personal rep-
resentative was denied access to these electronic assets, preventing them from
collecting and managing a decedent’s assets. Most are password protected,
and accessing them may have violated federal felony laws under the Electronic
Communications Privacy Act. Items stored on third-party servers, such as online
banking, Facebook, and Google, have restrictive terms-of-service agreements.
The UFADAA attempted to solved some of these issues by providing fiduciaries
with access to these accounts. However, technology companies and privacy
advocacy groups, like the ACLU, argued that the act infringed on the privacy
of the users and exposed the companies to potential liability. The RUFADAA
attempts to rectify the problems in the UFADAA by balancing these issues. The
drafters at the Uniform Law Commission (ULC) stated that the act “gives Inter-
net users the power to plan for the management and disposition of their digital
assets in a similar way as they can make plans for their tangible property.” A
user can now give access to their assets after death by adding a clause in their
will or trust or through a power of attorney during their lifetime. Additionally,
the RUFADAA allows users to create an online tool, known as Legacy Contact
on Facebook, that identifies the extent to which they wish to reveal their digital
assets to third parties, including fiduciaries or personal representatives. There
is one important thing to note about the RUFADAA: If an individual chooses to
use a custodian’s online tool, all other instructions become irrelevant. In effect,
this means that if the user names his son in the online tool and his wife as the
executor in his will, the online tool prevails over the provider’s default terms of
service and the client’s own will, trust, power of attorney, or other legal docu-
ment that might name a person to oversee their digital assets. Therefore, the
wife would not be permitted access to those digital assets. If no online tool
exists, the users’ legal documents, such as a will, trust, or power of attorney
can be used to explicitly grant a fiduciary access to any/all digital access or to
restrict such access. If there is no guidance in a will, trust, or power of attorney,
and there are no instructions to the contrary, a custodian’s default terms of ser-
vice will dictate a fiduciary’s access to a user’s digital assets. The RUFADAA has
been approved in some variation in most states.
Assuming the personal representative has the right to access the account,
the next hurdle is to find the digital assets. Testators should be encouraged to
maintain an inventory of accounts with access information. It should include the
physical location of each account, username and password access, and their
selected beneficiary for each asset. However, caution should be used to protect
the information contained in the inventory. If the information is included in the will,
it becomes public with the publication of the will. If the testator uses a password-
manager program, the access information to that account can be shared with the

Title: Gabriele Rossetti: A Versified Autobiography

Author: Gabriele Rossetti

Translator: William Michael Rossetti

Release date: June 21, 2016 [eBook #52387]

Most recently updated: October 23, 2024

Language: English

Credits: Produced by Giovanni Fini and the Online Distributed

Proofreading Team at http://www.pgdp.net (This file
was
produced from images generously made available by
The
Internet Archive)

*** START OF THE PROJECT GUTENBERG EBOOK GABRIELE

ROSSETTI: A VERSIFIED AUTOBIOGRAPHY ***
TRANSCRIBER’S NOTE:
—Obvious print and punctuation errors were corrected.
This Edition consists of
1000 Copies only, of which
this is

GABRIELE ROSSETTI
DRAWING BY GABRIELE ROSSETTI
Pen and Sepia

GABRIELE ROSSETTI
A VERSIFIED AUTOBIOGRAPHY
TRANSLATED
AND SUPPLEMENTED BY

WILLIAM MICHAEL ROSSETTI

Così dall’arpa opposti

suoni ei desta
Pel suol che gli diè culla un suon d’affanno
Di gioia un suon per quel che asil gli presta
GR

SANDS & CO
12 BURLEIGH STREET STRAND
LONDON
1901
DEDICATED TO
ANTONIO AND OLIVIA AGRESTI
WHOSE MARRIAGE HAS RESTORED
TO ITALIAN NATIONALITY
A GRAND-DAUGHTER OF
GABRIELE ROSSETTI
PREFACE

In Italy the poems of Gabriele Rossetti have enjoyed

a large amount of celebrity, and they are still held in
honoured remembrance; his prose works are there
known rather by rumour than in perusal. In England
the case of the prose works is much the same, while
the poems are as good as unknown. His life has
never been written on any very complete scale. In
Italian there are some Memoirs, more or less
detailed and accurate—perhaps the most solid is that
written by my cousin Teodorico Pietrocola-Rossetti; in
English, the nearest approach to an account of him
may be what appears in the course of my Memoir of
Dante Gabriel Rossetti (1895). There is also some
important information in the book, John Hookham
Frere and his Friends, mentioned on p. 132 of the
present volume.
The name of Gabriele Rossetti has in this country
secured some amount of respectful regard, but
rather on adventitious than on strictly personal
grounds. He is contemplated in his paternal relation
—the father of Dante Gabriel and Christina Rossetti.
Dr Garnett, in his History of Italian Literature, has
expressed the point neatly, and in terms stronger
than it would behove me to use: “Rossetti assuredly
will not be forgotten by England, for which he has
done what no other inhabitant of these isles ever
did, in begetting two great poets.”
On me it can be no less than a filial obligation to
do what I can for the memory of my patriotic, highly
gifted, laborious, and loving father. I therefore offer
to the British public the following authentic record of
him, and leave it to obtain such readers as it may.
W. M. ROSSETTI.
London, January 1901.
CONTENTS
PAGE
Gabriele Rossetti—Autobiography, etc. 1
Life in Italy 6
Life in Exile—Malta and England 60

APPENDIX

1.—From Six Letters from Gabriele

Rossetti to his Wife
A — Letter of 4 May 1831 117
B ” 15 May 1832 119
C ” 29 May 1832 122
D ” 6 September 1836 126
E ” 21 October 1836 129
F ” 21 August 1848 130

2.—From Eight Letters from Gabriele

Rossetti to Charles Lyell, Kinnordy
A — Letter of 29 October 1831 133
B ” 1 October 1832 134
C ” 15 May 1833 136
D ” 13 January 1836 137
E ” 14 January 1836 139
F ” 16 December 1836 140
G ” 21 July 1840 141
H ” 1 February 1842 143

3.—From Three Letters from Seymour

(Barone) Kirkup to Gabriele Rossetti
A — Letter of 12 September 1840 144
B ” 14 September 1841 147
C ” 5 February 1843 150

4.—Letters (or Extracts from

Letters) from Giuseppe
Mazzini—Eleven to
Rossetti, and One to
another Correspondent

A — Letter of 28 March 1841 157

B ” 1841? 159
C ” November 1844? 160
D ” May 1845? 161
E ” 31 October 1845 162
F ” January 1847? 163
G ” January 1847? 163
H ” 8 February 1847 164
I ” May 1847? 165
J ” February 1848? 167
K ” November 1848? 168
L ” To Corso—1846? 168
5.—Six Poems by Gabriele Rossetti
A — Ad Amore 174
B Versi d’Amore 177
C Aurora del 21 Luglio del 1820 177
D Addio alla Patria 182
E San Paolo in Malta—Canto
Improvvisato 186
F Napoleone a Sant’Elena 191

Index of Names 193

LIST OF ILLUSTRATIONS

1. Fac-simile of an Early Drawing by

Gabriele Rossetti, pen and sepia,
made as a title-page to some of
his MS. poems. Circa 1804. See
p. 11 Frontispiece

2. Gabriele Rossetti—from the oil-

portrait by Dante Gabriel
Rossetti now belonging to Sir
Leonard Lyell, Bart.—1848 To face p. 1

3. Gaetano Polidori—from a pencil-

drawing by Dante Gabriel
Rossetti, done in 1853, the
same year when Polidori died,
aged 89 ” 85

4. Christina Georgina Rossetti—from

a pencil-drawing by Dante
Gabriel Rossetti. Circa 1846 ” 89
5. Frances Mary Lavinia Rossetti, with
her daughters Maria Francesca
and Christina Georgina—from a
photograph. Circa 1855 ” 115

6. Gabriel Charles Dante (called

Dante Gabriel) and William
Michael Rossetti—from a water-
colour sketch by Filippo
Pistrucci. Circa 1838 ” 130
GABRIELE ROSSETTI
From the Oil-Portrait by Dante Gabriel Rossetti
1848
GABRIELE ROSSETTI

As the career of Gabriele Rossetti was much mixed

up with political and dynastic events in the Kingdom
of Naples (or of the Two Sicilies), it may be as well at
starting to give a very brief résumé of historical facts.
In the year 1734 the Kingdom of Naples, in the
resettlement of Europe consequent upon the Treaty
of Utrecht, was under the dominion of the Empire,
or, as we should now word it, of Austria; but in that
year an almost bloodless conquest brought-in a
different dynasty. Charles, Duke of Parma, a son of
the Bourbon King of Spain, Philip V., by his second
wife Elizabeth Farnese, a spirited youth only
seventeen years of age, determined to assert his
ancestral claims upon the kingdom, and in a trice he
was firmly seated upon the Neapolitan throne. His
government, though in a sense despotic, was
popular and enlightened. In 1759 he became by
succession King of Spain; and, under the obligation
of existing treaties, he relinquished the Kingdom of
Naples to his third son, Ferdinand, aged only eight.
In 1768 Ferdinand married Maria Caroline, daughter
of the Emperor Francis and of Maria Theresa, and
sister of Marie Antoinette.
Ferdinand IV., as he was then termed (afterwards
Ferdinand I.) was a man of no great ability, but of
vigorous physique, and sufficiently well-disposed as a
sovereign; his wife, strong-minded and domineering,
was the more active governor of the two, and
promoted various innovations, some of which fairly
counted as reforms. Things went on well enough for
the rulers and the subjects until the outbreak of the
French Revolution in 1789, when Neapolitan
opposition to France and all things French became
pronounced. Queen Caroline naturally did not relish
the decapitation of her sister in 1793, and hostilities
against the Republic ensued. In 1798 the king
decamped to Sicily, and in the following year his
continental dominions became the “Parthenopean
Republic.” This was of short duration, January to
June 1799. The Southern provinces rose in arms,
under the leadership of Cardinal Ruffo; the French
army departed, and Ferdinand was re-installed in
Naples—Lord Nelson, victorious from the Battle of
the Nile, playing a large part, and a much-debated
one, in this transaction. Ferdinand now ruled with
great rigour, and committed some barbaric acts of
repression and retaliation, for which his consort was
regarded as gravely responsible. The great Napoleon,
Consul, Emperor, and King of Italy, was not likely to
tolerate for long the anti-French severities,
demonstrations, and intrigues, of “il Rè Nasone,” as
Ferdinand was nicknamed in virtue of his
portentously long and prominent nose. Early in 1806
Ferdinand and Caroline disappeared once more into
Sicily, under British protection, and Joseph Bonaparte
was enthroned in Naples. Joseph, in 1808, was
transferred to the Spanish kingdom; and Joachim
Murat, brother-in-law of Napoleon and of Joseph by
his marriage with their sister Caroline, reigned in
Naples in his stead. Ferdinand, with the other
Caroline, remained meanwhile unattackable in Sicily,
and was turned into a constitutional king there by
British predominance. In 1815, on the final collapse
of the Napoleonic régime, and very shortly after the
death of his Queen, he returned to Naples.
These particulars, meagre as they are, seem to
be sufficient to show what was the historical
background to the fortunes of Gabriele Rossetti, with
whom alone I am directly concerned. He was born
under a recently-established dynasty, in a kingdom of
despotic rule and many relics of feudalism; from the
age of twenty-three to thirty-two he was the subject
of a new and intrusive dynasty, not less despotic, but
free from all trammels inherited from the past. Then
in 1815 he again came under the old system, but in
a state of public feeling and aspiration which rapidly
led to a constitutional government, sworn to by the
sovereign, and abolished by him at the first
opportunity.
I propose to relate my father’s life in his own
verse as translated by me, supplemented by a little
of my prose. It was towards the year 1850, when his
general health and strength had grievously decayed,
and he was conscious of the imminent approaches of
death, that he composed a versified autobiography,
of which the great majority is here embodied. He
wrote it in rhymed sextets; but I, for ease and
literality, have rendered it into blank verse. His own
verse is, as he himself acknowledges, here pitched in
a very subdued key, with little endeavour after poetic
elevation; though there are some passages in a
higher strain. My translation makes still less
pretension as poetry; it conveys the sense with strict
accuracy, and that is all it affects. My father retained
in his old age some of the habits of “poetic diction”
which had been customary in the Italy of his youth;
and one finds here more than one quite wants of
Phœbus, Neptune, Minerva’s fane, and other “rattle-
traps of mythology” (to borrow a phrase from William
Blake); in all this I follow my original. The
versification of the Italian text is often ingenious, and
even masterly; abounding in dactylic line-endings, or
rime sdrucciole, as the Italians call them—a difficult
feat, at which Rossetti was uncommonly deft. I have
given the great bulk of the production—which,
indeed, I had in the first instance translated in full;
but eventually I thought some passages here and
there, and also some amplifications of phrase,
useless for the purposes of the British reader, and
have therefore excluded them. The whole of the
expressly biographical matter is preserved. Those
notes which are not marked by an initial are my
father’s own; those to which “W.” is appended are
mine—there being several points which seemed to
need some explanation.
My material does not call for much division or
subdivision. I shall therefore simply separate it into
the Life of Gabriele Rossetti (his full Christian names
were Gabriele Pasquale Giuseppe) in Italy, and his
Life in Exile, Malta and England; and, plunging at
once into the versified autobiography, I commence
the

LIFE IN ITALY
I know my fame will have but scanty flight,
Readers to whom I speak of Italy.
Yet, if in any of you there rose a wish
To know me who I am, I’ll meet it here.
Ovid’s own native soil is mine as well:
He spoke about himself, and so will I.
In verses Ovid wrote, but I in prose—
Prose of eleven syllables with rhymes;
But, be they verses, I shall not contest.
And, without more preamble, hear me now.

Along the beach of the Frentani lies

On teeming hills, the Adriatic near,
A small municipality of Rome—
Histonium once and Vasto now ’tis called.
There, with no waft of Fortune, I received
A humble cradle from a worthy pair.[1]

The brief statement of my father, in his verses

and his note, may be slightly extended. Nicola
Rossetti was a blacksmith and locksmith; his wife,
Maria Francesca Pietrocola, was the daughter of a
shoemaker. Both families seem to have held a
creditable, though certainly a by no means
distinguished, position in the small Vastese
community. The original name of the Rossetti race
(as I have heard my father more than once affirm)
was not Rossetti but Della Guardia. Some babies in
the Della Guardia family were born with red or
reddish hair (I presume, four or five generations
before my father’s birth); and the Vastese—who, like
other Italians, never lose a chance of calling people
by nicknames—termed them “the Rossetti”—i.e. “The
Little Reds,” and this continued to serve as surname
for their progeny. Thus the surname Rossetti may be
regarded as equivalent to the English surname
Reddish, or Rudkins (if Rudkins is an abbreviation of
Ruddykins). The family of Della Guardia still exists in
Vasto. It appears to have been entitled to bear a
crest—which is a sturdy-looking tree, with the motto
“Frangas non flectas”; for a seal (still in my
possession), showing this crest and motto, was
delivered to Gabriele Rossetti, on his quitting Vasto in
youth, by his elder brother the Canon Andrea, who
told him that it was the family-device. This was often
used, I may add, by Dante Gabriel Rossetti. It
appears that in the Rossetti line, or else in the Della
Guardia line, there must have been some degree of
literary eminence prior to the date of the blacksmith
Nicola; as I find, in a letter addressed by Gabriele
Rossetti, towards 1807, to his elder brother
Domenico, the phrase: “You know that our stock has
always abounded in great men of letters.” One
cannot suppose that this statement is a mere fib: I
have not, however, found any confirmation of it in
books about Vasto, nor do I remember that my
father ever referred to such a matter by word of
mouth.
I believe that Nicola Rossetti came to his end in a
distressing way. When the French Republican army
invaded the Neapolitan territory in 1798, the troops
required Nicola to render some service, such as
horseshoeing, provisioning, transport, or what not.
He showed no inclination to comply, and was beaten
or otherwise ill-treated; and this so preyed on his
mind that his health suffered, and death ensued. His
decease may, I presume, have occurred towards
1800; his widow survived till 1822 or some such
date. Gabriele Rossetti used to speak with much
affection of his mother, who (like so many Italian
women of the lower middle class in those days)
could neither write nor read. He remembered his
father as a somewhat harsh man, but upright and
worthy of respect. The Rossetti family is now wholly
extinct, save in the persons of myself and my four
children; the line of my father’s married sisters is also
extinct.
The precise date of my father’s birth was 28th
February 1783 (not 1st March, as has at times been
written and printed). He was born in a lofty brown
building, which, in a water-colour with which I was
favoured towards the date of the Vastese centenary
celebration of his birth, wears a somewhat stately
though wholly unadorned aspect. It looks like an
edifice which has stood for some centuries, solid but
uncared for. It is now, I understand, a dilapidated
structure, let out in tenements to a poor class of
people. The question of buying it for the city of
Vasto, in memory of Gabriele Rossetti, has often
been mooted, but not carried into effect. There are
prophets who have no honour in their own country;
and others who, rather profusely honoured there by
word of mouth, are left in the lurch when deeds and
subscriptions are in demand.
In the first opening years of joyousness
I showed clear sign of studious aptitude;
And, following my brothers, three in count,
Whose lively parts had been in evidence,
I was escorted by this goodly three
Into Apollo’s and Minerva’s fane.[2]

Thrilled by the first Phœbean impulses,

Rough versicles I traced with facile hand:
And yet, to my surprise, those lines of mine
Almost took wing into a distant flight.
A hope of Pindus did I hear me named:
But praise increased my ardour, not my pride.
And yet some vanity there came and mixed
With the fair issue of my preluding:
But, all the more I heard the applause increase,
With equal force did study grow in me.
Not surely that I tried to load my page
With pomp abstruse extraneous to my drift;
But counterwise each image and each rhyme,
The more spontaneous, so meseemed more fair.
In trump of gold and in the oaten pipe
Let some seek the sublime, I seek for ease.
I shunned those verses which sprawl forth untuned
Even from my days of schoolboy tutelage:
I know they please some people, but not me:
Admiring Dante, Metastasio
I laud; and hold—a true Italian ear
Must not admit one inharmonious verse.
Some lines require a very surgeon’s hand
To make them upon crutches stand afoot.
So be they! But, to set them musical,
They must, by Heaven, be in themselves a song.
This seems a truthful, not a jibing, rule—
Music and lyric are a twinborn thing.
Yet think not that I deem me satisfied
With upblown empty sound without ideas:—
Then will a harmony be beautiful
When great emotions and great thoughts it stirs.

To painting with an equal ardency

An almost sudden impulse led me on;
And with the pen I drew in such a mode
That all my work would look as if engraved.
To question what I say would nothing serve,
For on my hands more than one proof remains.[3]
A plaining ditty which describes my state,
And wherein I deplore my fate perverse,
And whose adorning is two pen-designs,
Is still preserved among my earliest scraps:
And many more, for him who disbelieves,
Can thoroughly attest what I aver.

Not every magnate takes to banqueting,

Or lust of Cyprus and Pentapolis.
The Marchese di Vasto, a high-placed lord,
The King of Naples’ Majordomo in Chief
(Whatever face he show in history,
By me his memory must be always blest),
Being once in company with men of mark
Whom he was wont to invite from time to time,—
My verses read by him, and drawings seen—
Felt pleased that I was of his vassalage;
He wrote to his agent telling him of this
And bidding him to send me on to Naples.[4]
There I was patronized, without parade,
By him, who from the first received me well:
But little did that firm support endure,
For a political whirlwind cut it short.
Poor I—how fare in a vast capital?
I had to bow before my destinies.
For scarcely had a year and month elapsed,
In which new studies occupied my mind,
When the French army of invasion came
In the sixth year of this our century,—
And, seeking Sicily in urgent flight,
The Marquis vanished with the perjured King.
Then for the kingdom rose an altered time,
And all the people vied to give it hail,
For they abhorred that Bourbon void of faith,
With executions and with treasons smirched,—
And more his wife, a type unparagoned,
Megæra, Alecto, and Tisiphone.
I will not paint that husband and his wife—
Thank Heaven, the tomb has swallowed them ere now.
Their grandson—this suffices—pairs them both,
Re-named King Bomba, monster in human form.

On saddened brows a few, and many glad,

I read the souls of men enslaved or free:
And, mixed myself ’mid such conflicting minds,
Judge you if I was joyful or was grieved.
The festive thundering of the martial forts
Responded to by frequent trumpet-call,
Cheers that were uttered by a thousand mouths
As the tricoloured banner came in view,
And hurly-burly weltering all around,
Opposed enormous joy to enormous grief.
Yet thoughts, more than enough, ominous and black,
Whispered me somewhile ’mid those shouts of joy:
“My hapless country, what dost thou acclaim,
Now that one despot goes and one arrives?
Ah on thy shoulders still I find the yoke:
They doff the old one and they don the new.”
And from my heart the words leapt to my lips:
“To call this liberty were sure a jibe!
As Ferdinand in Naples stifled her,
So Bonaparte butchered her in France.
But tremble, tremble, impious man! Thy crime
On all the nations’ hearts stands written deep.”

I was a prophet here. Germany in arms,

A nation of great hearts and thought as great,
Avenging Freedom foully done to death,
Against him let whole populations loose.
Behold him fallen on field, captive at sea:
By Liberty he rose, by her he fell.
France in my youthful fervency I loved,
I loved the awful warrior guiding her:
But, when I heard, “He’s made an Emperor now,
Nor that alone, but despot autocrat,”
The hate I felt extinguished all that fire.

For many ’twas a cause of deepest grief

To contemplate with golden diadem
A brother of that despot on our throne.
His praise was—having turned the Bourbon out;
Whence, setting every other thought at rest,
They all applauded him, and so did I.
A chosen band of daring souls and brave
Encircled the incoming Frenchman round,[5]
And of two evils they acclaimed the less,
Awaiting a true good to come one day.
Round the new sceptre flocking now I marked
A crowd of shining minds, and joyed herein;
And, taking up the lyre resolvedly,
Inly I said: “A poet I was born,
And such I will be in my future course!”[6]
The use of reason scarce had I attained
When France’s thundercloud I heard that pealed—
Which
next diffused around and far-afar
Terror to Kings, to nations hopefulness.
At dawning of my lifetime I resolved
To follow in that movement—and alas!
From the successive shiftings of the chance,
I, loving good, saw evil that ensued.
Across the Red Sea, sea of blood and war,
Must then the Promised Land be still approached?
That fatal whirlwind, with alternate shock,
In Naples’ kingdom all-deplorable
Full ten times made a change of government,
Alternating with serfdom liberty:
And, with the flight of that demented court,
I saw it for the fourth time altering:
And the ninth change and tenth, which now I see,
Are the most miserable of them all.

Many gave homage to the new-built throne;

And I, while scorning any cringing phrase,
Struck on my lyre, and spread abroad its sound,
Saluting that forthcoming period:
And what I said thereof in varying style,
If not free-toned, is not subservient.
Soon do the accents of my lyre recall

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