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Wills, Trusts, and Estates
Charleston School of Law
Compton, Amanda E.

Wills Trusts & Estates Outline

Professor Compton

Fall 2011


Transferring Property at Death

1. Following Testator’s Intent

a. As long as it’s legal and Constitutional

b. Job is not to judge wisdom of devise, it’s to facilitate

2. Justifications

a. Hodel v. Irving—no right to inherit; is a right to convey

b. Encourage family ties

c. Encourage working hard to provide for children

3. Limitations

a. Restatement: Donor’s intent is given the effect to the maximum extent allowed by law

b. Restraint on Const’l right

c. Violates public policy

d. Restraint on Marriage

· Not a total restriction

· Reasonable

· Support

e. Unreasonable Restraints on Marriage

· Total restriction –(4th Amendment Right to Marry)

My wife may never remarry [in order to inherit]

So long as my wife remains unmarried

· Encouragement of separation or divorce

· Shapira v. Bank—reasonable restraint to require son marry Jewish woman

· Distinguish btw preventing marriage and support until marriage

f. Incentive Trusts—“always” presumed to be valid

4. Terminology

a. Dead Hand Control—extent to which person can use wealth to influence after death

b. Testacy—decedent leaves a will that provides for the distribution of her property at her death

c. Intestacy—decedent leaves NO will; property passes by statutory scheme

d. Partial Intestacy—leaves a will that provides for distribution of part of the property; the rest is distributed according to statute

5. Probate Process

a. Functions

· Title Clearance

· Protect Creditors

· Distribute property to decedents

b. Burden of Proof

· Proponent has burden of pro

with S and step kids

· Rest to D

c. $125 k + ½ to Spouse §2-102(4)

· One or more kid is not S’s (S=me)

· Rest to D

d. $300 + ¾ to Spouse § 2-102(2)

· Surviving parent(s)

· Rest to P

e. No Spouse

· All to kids: per capita at each generation §2-103(a)(1)

· & no Kids: All to P § 2-103(a)(2)

· & no kids & no P: to siblings per capita at each generation (a)(3)

f. No Spouse, Kids, Parents or Siblings

· Grandparents § 2-103(a)(4) & (5)

– Split maternal / paternal

– or All to surviving side

· Per Capita at each Generation

· Step Children § 2-103(b)

· Escheats § 2-105

· No Great-Grand Parents… no “Laughing Heirs”