Wills Trusts & Estates Outline – Professor Lucas – Fall 2012
Chapter 1 Introduction
A. The Power To Transmit Property At Death: Justifications & Limitations
1. The Right to Inherit and the Right to Convey
Hodel v. Irving
· The complete abolition of the rights of an owner to dispose of property rights is a taking without just compensation, violating the owner’s rights guaranteed under 5th Amendment.
· Right to convey property or exclude is one of the bundle of rights.
· No state or government can completely abrogate the right of a person to pass property at death.
· No constitutional right of a decedent to receive property.
· Elective Share: if surviving spouse is not given assets at spouse’s death, the surviving spouse can elect to take their share of the assets.
Intestate: die without a will.
States have default estate plan by law for the 50% of people who die intestate.
Representation schemes will be on exam. Answer problems & be prepared.
Shaw Family Archives v. CMG Worldwide
· Can’t give something you don’t have.
· Can’t give publicity rights when you don’t have it.
3. The Problem of the Dead Hand
Restrictions: religion, promoting divorce, interfering with marriage unreasonably, trying to avoid paying creditors, race restrictions, spousal rights, illegal activity, rules against perpetuities & accumulations, & unreasonable alienation.
§10.1: Donor’s intention determines the meaning of a donative document and is given effect to the maximum extent allowed by law.
Shapira v. Union National Bank
· A testator may validly impose a restraint on the religion of the spouse of a beneficiary as a condition precedent to inheriting under the will.
· Public policy against interfering with marriage or promoting divorce.
Doctrine of waste: creator didn’t create us to destroy other people or property but to provide for others.
B. Transfer of the Decedent’s Estate
1. Probate & Nonprobate Property
Probate property: property that passes through probate under the decedent’s will or by intestacy.
Nonprobate property: property that passes outside of probate under an instrument other than a will.
Probate:
· Testate: died with will which will govern how assets are distributed.
· Intestate: died without a will & intestate provisions within the state will govern how assets are distributed.
Nonprobate assets:
· Joint tenancy with right of survivorship
· POD – payable on death
· Life insurance
C. Estate Planning Problem
D. Professional Responsibility
1. Duties to Intended Beneficiaries
Simpson v. Calivas
· Attorneys drafting wills owe a duty of reasonable care to the intended beneficiaries.
· Attorneys drafting wills have a contractual duty to the intended beneficiaries.
2. Conflicts of Interests
A. v. B.
· Spirit of the letters supports the firm’s decision to disclose to the wife the existence of the husband’s illegitimate child.
· A lawyer’s disclosure of confidential information communicated by one spouse is appropriate only if the other spouse’s failure to learn of the information would be materially detrimental to that other spouse or frustrate the spouse’s intended testamentary arrangement.
Hotz v. Minyard
· Attorneys may owe a fiduciary duty to the beneficiaries of wills they have prepared.
Chapter 2 Intestacy: An Estate Plan By Default
A. The Basic Scheme
1. Introduction
Testate: die with a will
Intestate: die without a will
§2-101: If will doesn’t state who the inheritance passes to, then inheritance passes to heirs. (a) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this Code, except as modified by decedent’s will. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession.
Without a will, estate plan by statute is presumed intent & will determine distribution of assets.
If a will doesn’t dispose of all property, remaining property is distributed based on estate plan by statute unless excluded by will.
2. Share of Surviving Spouse
§2-102: Share of Spouses
(1)(A) Surviving spouse takes entire intestate share of decedent if no surviving descendant or parent; or (B) decedent’s surviving descendants are also descendants of surviving spouse & there is no other descendant of the surviving spouse who survives the decedent.
(2) Surviving spouse takes first $300,000 plus ¾ of any balance of intestate estate, if no surviving descendant put a surviving parent.
(3) Surviving spouse takes first $225,000 plus ½ of any balance of intestate estate, if surviving descendants are also surviving spouse’s descendants & surviving spouse has one or more surviving descendants who are not descendants of the decedent.
(4) Surviving spouse takes first $150,000 plus ½ of any balance of intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
§2-103: Share of Heirs Other Than Surviving Spouse
(a) If all or any part of intestate estate does not pass to decedent’s surviving spouse, then intestate estate passes as follows:
(1) to decedent’s descendants by representation (children, grandchildren, great grandchildren)
(2) if no surviving descendant, then to decedent’s parents equally if both survive or to surviving parent
(3) if no surviving descendant or parent, then to descendants of the decedent’s parents or either of them by representation (brothers, sisters, nephews, nieces, grand nephews/nieces, great-grand nephews/nieces)
(4) if no surviving descendant, parent, or descendant of parent, but decedent is survived on both paternal & maternal sides by one or more grandparents or descendants of grandparents:
(A) ½ to decedent’s paternal grandparents equally if both survive, to surviving paternal grandparent if only one surviving, or to descendants of decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and
(B) ½ to decedent’s maternal grandparents equally if both survive, to surviving maternal grandparent if only one surviving, or to descendants of decedent’s maternal grandparents or either of them if both are deceased, the descendants taking by represent
O’Neal v. Wilkes
· Equity is not law. It is a legal fiction.
· A contract to adopt may not be specifically enforced unless the contract was entered into by a person with the legal authority to consent to the adoption.
· Some states may recognize equitable adoptions for purposes of estates & intestacy.
b. Posthumous Children
Posthumous Children: children conceived before, but born after, the father’s death. Posthumous children are nonmarital children.
UPA §204: a rebuttable presumption that a child born to a woman within 300 days (280 days according to some courts) after the death of her husband is a child of that husband.
c. Nonmarital Children
Nonmarital Children: child born out of wedlock & is the child of no one & could inherit from neither father nor mother. If the child died without descendants or a spouse, the child’s property escheated to the king.
d. Reproductive Technology & New Forms of Parentage
Posthumously conceived child: child conceived with reproductive technology after the death of one or both of the child’s genetic parents.
Hecht v. Superior Court
· Kane’s devise to girlfriend of 15 vials of his sperm that were on deposit in a sperm bank is upheld by court.
Woodward v. Commissioner of Social Security
· A child resulting from posthumous reproduction may enjoy the inheritance rights of “issue” under the intestacy statute where there is a genetic relationship between the child & the decedent & the decedent consented to posthumous conception & to the support of any resulting child.
· In certain limited circumstances, a child resulting from posthumous reproduction may enjoy inheritance rights of “issue” under Massachusetts intestacy statute.
· Issue: all lineal genetic descendants & now includes both marital & nonmarital descendants.
· Whether posthumously conceived genetic children may enjoy inheritance rights under intestacy statute implicates three state interests: (1) best interests of the children, (2) state’s interest in the orderly administration of estates, & (3) the reproductive rights of the genetic parent.
· Absent father’s acknowledgment of paternity or marriage to the mother, nonmarital child must obtain judicial determination of paternity as a prerequisite to succeeding to a portion of father’s intestate estate & after donor-parent’s death, burden rests with surviving parent or other legal representative, to prove the deceased genetic parent’s affirmative consent to both requirements for posthumous parentage: posthumous reproduction & the support of any resulting child.
