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:
(3) Will Substitute (trust, contract Payable at death, Joint Tenancy, Etc)
o What Could Happen?
§ 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.
(1) Only transfer what decedent had at death
(2) Right not descendible at death even if it exists
(3) Intestacy Rules
– 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
1. Evidence of title
2. Help creditors collect on debts
3. Distribute property in accordance with decedent’s wishes
· 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
• §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
§2-105 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
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