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Wills, Trusts, and Estates
Charleston School of Law
Williams, Aleatra P.

Aletra Williams
Wills, Trusts, and Estates – Fall 2010
Keyed to Dukeminier, Sitkoff, and Lidgren, Wills, Trusts, and Estates (8th ed.)
–          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

6.      Grandparents’ issue
7.      Next of Kin
8.      The state
§  Hierarchy is to meet the decedent’s probable intent
o   UPC Intestacy Rules
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