Aletra Williams
Wills, Trusts, and Estates – Fall 2010
Keyed to Dukeminier, Sitkoff, and Lidgren, Wills, Trusts, and Estates (8th ed.)
Introduction
– The Power to Transmit Property at Death
o Three Ways:
(1) Will
(2) Intestacy
(3) Will Substitute (trust, contract Payable at death, Joint Tenancy, Etc)
o What Could Happen?
§ Destroyed
§ Buried with decedent
§ Treated as unowned
§ Confiscated by the government
§ Transferred per D’s wishes
o The Right to Inherit and the Right to Convey
§ Jefferson and Blackstone: Right is purely statutory
· Your property should revert to society at death.
§ Locke: Natural right to inherit parent’s property.
§ Hodel v. Irving
· Indian Land Consolidation Act: fractional land interests would escheat to the tribe at death.
· Rule: the complete abolition of right to dispose of property is a taking without just compensation (5th Amendment)
§ Shaw Family Archives v. CMG WorldWide
· Marilyn Monroe case; issue was whether Monroe’s post-mortem right of publicity should pass to the residue of her estate.
· Rule: The decedent cannot pass a right through a will that was not in existence at the time of his/her death.
· Holding: Monroe did not have the right at death (statute enacted later) so she could not pass it through her will.
· Options:
(1) Only transfer what decedent had at death
(2) Right not descendible at death even if it exists
(3) Intestacy Rules
(4) Statute
– Court went with 1 and 2
§ UPC § 2-602 takes the opposite view: you can pass along property right later acquired by your estate (only adopted in 18 states)
o The Problem of the Dead hand
§ How much control should we allow?
§ Restatement Third of Property § 10.1
· “American law curtains freedom of disposition . . . to the extent that the donor attempts to make a disposition or achieve a purpose that is prohibited or restricted by an overriding rule of law”
· no power to question wisdom, fairness, or reasonableness
§ Shapira v. Union National Bank
· Dad left property to son if he married Jewish girl with two Jewish parents.
· Court upheld the restraint: not contrary to law or public policy.
· Rule: testator may validly restrain religion/marriage if reasonable
§ Restatement Third of Trusts § 29(c): generally opposed to restraints on beneficiary behavior
§ Incentive Trusts: gives inheritance while encouraging certain behavior (morality, religion, career, etc)
· Subject to public policy limits
· Prevents lazy heirs
· Could backfire: what if the person is unable to meet the condition?
– Transfer of the Deceedent’s Estate
o Probate and NonProbate Property
§ Functions
1. Evidence of title
2. Help creditors collect on debts
3. Distribute property in accordance with decedent’s wishes
§ Terminology
· Personal Representative: appointed to oversee the winding up of the decedent’s affairs. Fiduciary who inventories and collects the property; manages and protects the property during administration; processes the claims of creditors and tax collectors; and distributes the property to those entitled.
· Executor: person named in the will to administer the probate estate
· Administrator: personal representative named by the court when there is no will or no administrator named in the will.
· Devise: testamentary disposal of real property
· Bequest: testamentary disposal of personal property.
· Heirs: persons designated by statute to take decedent’s intestate property (historically only took real property)
· Next of Kin: same as heirs now (historically took personal property)
· Testator: a person who dies leaving a will
· Letters Testamentary: probate court order approving the appointment of an executor under a will and authorizing the executor to administer the estate.
· Letter of Administration: formal document issued by probate court to appoint administrator of the estate.
· Formal Probate: Litigated judicial determination after notice to interested parties.
· Informal Probate: after appointment, the personal representative adminis
Grandparents
6. Grandparents’ issue
7. Next of Kin
8. The state
§ Hierarchy is to meet the decedent’s probable intent
o UPC Intestacy Rules
Facts
1990 UPC § § 2-101 to 2-106 (rev. 2008)
S; no D; no P
§2-102(1)(A) all to S
S; D
• §2-102(1)(B) all to S only if all D are also S’s and S’s only kids
• §2-102(3) first $225K + 1/2 of balance to S if D are also S’s but S has others; rest D
• §2-102(4) first $150K + ½ of balance to S if one or more D is not S’s; rest D
S; no D; P
§2-102(2) $300K + 3/4 S; rest P
no S; D
§2-103(a)(1) all D (per capita at each generation)
no S; no D; P
§2-103(a)(2) all P
no S; no D; no P; B or S
§2-103(a)(3) B or S (per capita at each generation)
no S; no D; no P; no B or S; GP or GD
§§2-103(a)(4) and (5) 1/2 paternal G; 1/2 maternal G or all to maternal or paternal if no survivors on other side – per capita at each generation
no S; no D; no P; no B or S; no G or GD
§2-103(b) stepchildren
§2-105 escheat to state; therefore no “laughing heirs”; note: no great grandparents
– Share of the Surviving Spouse
o Spouse gets all when only issue are from the marriage
o Who is the surviving spouse?
§ Varies by state
§ Generally:
1. Legal spouse
2. Survived (see Janus)
§ Usually requires a ceremony of some sort
§ Common law marriage in some cases
§ Generally, there is no requirement to be married for a certain period of time
§ “Putative marriage”
o SC Share of Surviving Spouse: SC § 62-2-102
§ If no surviving issue of the decedent, then the entire intestate estate
§ If there are surviving issue, then ½ of the intestate estate
