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NALA CP: Estate Planning and Probate

NALA CP · Work through your exam, one topic at a time.

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Estate Planning and Probate

Wills, Trusts, and Probate

Estate planning requires testamentary intent, capacity, and formalities. A valid will is signed by the testator and attested by witnesses (or is holographic where allowed). Codicils amend; revocation occurs by physical act, subsequent instrument, or operation of law. Intestacy distributes to heirs under statute. Trusts may be revocable or irrevocable, testamentary or inter vivos; a trustee owes fiduciary duties. Probate validates the will, appoints a personal representative, and handles creditor claims. Nonprobate assets - life insurance, retirement accounts, jointly held property - pass by beneficiary designation or survivorship.

Traps

Beneficiary designations generally control over the will. Watch lapse and anti-lapse statutes, ademption, abatement, and simultaneous death. Per stirpes divides by representation; per capita divides equally by heads. A self-proving affidavit speeds probate but is not the will itself. Holographic wills often require the material terms in the testator's handwriting.

Worked Example

A testator dies with a will leaving all to the testator's children. One child predeceases, leaving two grandchildren. Under per stirpes, the deceased child's share passes to the grandchildren by representation. Rule of thumb: probate assets pass by will; nonprobate assets pass by contract.