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Wills and Trusts
Santa Clara University School of Law
Schneider, Eric C.

I          The Power to Transmit Property at Death: Justifications and Limits
A)       Historical Backdrop
1.        Until1987, US Supreme said there was no constitutional right to pass property at death.
2.        RULE: Taking away rights of an owner to dispose of property rights is a taking without just compensation and it violates owner’s rights guaranteed under 5th Amendment.
a.       Hodel v Irving US Supreme 1987 p3
1)       O’Connor on p9 “, the right to pass on property- to one’s family in particular- has been part of the Anglo American legal system since feudal times.”
2)       Rule: States do not have the right to completely abolish the right to descent and devise.
3)       Schneider- Case is about right to transmit property, not merely receive- Limiting transfer rights would limit people’s power to do anything else.
B)      3 ways to pass property at death:
1.        Will- requires probate and is costly and time consuming
2.        Intestacy
3.        Will Substitutes- Today, most property is transferred this way
a.       Inter vivos revocable trust- perfect because very flexible and doesn’t go to probate
b.      Joint tenancy
c.       Gift of a remainder interest
d.      Reserving a life estate, often in a revocable trust, designating a death beneficiary on a contract, pension plan, or bank account.
C)      Dead hand/ Why have wills and inheritance?
1.        GENERALLY, people are the best judges of their own concerns, they should manage their own concerns and it cannot be wrong continually to claim this liberty for every generation of mortal men.
2.        BUT- Dead people don’t have to deal with consequences.
3.        POLICY—Advantages of wills:
a.       Intent of testator
b.       Incentive for one to be productive and gather wealth (save $) in lifetime
c.       Security for family members, eases their transition into death.
d.       Economic stability for descendants—not on welfare, helps maintain family.
e.       Property owner is best suited to decide who gets his prop (e.g. small business is better run by one’s son than the gov.)
f.         Government gets some- through taxes
4.        POLICY—Disadvantages of wills- REASONS to Limit Dead Hand
a.       Wealth gets passed onto children who are born lucky.
b.       Concentrates inherited economic power in the hands of the few and denies equality of opportunity to the poorer.
c.       Surviving spouse automatically has right to certain portions of property even if dead spouse intentionally disinherits spouse.
D)      Restraints on Wills
1.        What is Not allowed?
a.       Banning marriage altogether.
b.       Promoting divorce
c.       Having something destroyed- provision won’t be enforced unless there’s a good reason. 
1)       Won’t be enforced by ct unless there’s a good reason. 
2)       Not wanting anyone to live in it is not good decision.
2.        Partial Restraints on Wills ARE ALLOWED
a.       RULE: 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.
b.       Shapira v. Union National Bank Ohio Court of Common Pleas 1974 p24
1)       Testator placed a provision in his will which provided that his two sons would receive a portion of his estate only on the condition that they each marry a Jewish girl whose both parents were Jewish, within seven years of the testator’s death, and if the condition was not fulfilled, the share would pass to the State of Israel.
2)       Rationale: In the case at bar, the court is not being asked to enforce any restriction upon Dan

ries, who may have life estates or remainders or other types of interests.
3.        Administration of probate estates
a.       Personal representative- when person dies, first step is to appoint one to wind up the decedent’s affairs. Their responsibilities are:
1)       To inventory and collect the assets of the decedent
2)       Manage the assets during the administration
3)       Receive and pay the claims of creditors and tax collectors and
4)       Distribute the remaining assets to those entitled.
b.      Executor- if the will names a personal representative, they are the executor
c.       Administrator- If the will does not, or if person dies intestate, the court appoints the administrator. The administrator is typically selected in this order:
1)       Surviving spouse
2)       Children
3)       Parents
4)       Siblings
5)       Creditors
(a)     Domestic partners have recently been included in this list (same level as spouse)
(b)     In CA, property passing solely to surviving spouse is not subject to administration, unless specifically requested
d.      There are two different sets of terminology used
1)       One dying testate devises real property to devisees and bequeaths personal property to legatees.
2)       One dying intestate, allows for real property to descend to heirs, and personal property to be distributed to next-of-kin.
4.        Probate Procedure
Probate performs 3 functions: