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Wills, Trusts, and Estates
South Texas College of Law Houston
Festa, Matthew J.



A. The Power to Transmit Property at Death

1. The Dead Hand Rule = property owners have the nearly unrestricted right to dispose of their property as they please

a. The law does not grant cts. the authority to question the wisdom, fairness, or reasonableness of the donor’s decision

i. The main function of the law is:

* Facilitation of donor’s intent rather than regulation; and

* Establishing rules by which the donor’s intent can be sufficiently determined, e.g. the requirement of a written will

b. Contrary to Public Policy Exception to the Dead Hand Rule

i. A will, which includes conditions that disrupt or discourage familial relationships, is unenforceable

* Bequest to surviving spouse (SS) on condition that SS not remarry is void

* A provision that encourages separation or divorce is void

* A condition that unreasonably limits the transferee’s opportunity to marry is void

** Shapira says that a condition limiting the choice of a spouse to a member of a particular faith is not against public policy as long as a marriage permitted by the restraint is not unlikely to occur

ii. Third Restatement Balancing Test = says that cts should balance the donor’s freedom of disposition against other social values and the effect of dead hand control on the personal freedom of others

* Third Restatement called Shapira an “unfortunate case”

c. Destruction of Property = the general rule is that society will not tolerate waste

i. Cts weigh the motivation of the testator & social utility of destruction against the perceived loss to society

* Tear down my house? = probably not ok b/c homes are important and expensive to rebuild

* Burn Kafka’s unfinished manuscripts? = probably not ok b/c of great literary value

* Burn Justice Black’s conference notes? = probably ok b/c the social value of notes is minimal

2. Justifying Freedom of Disposition (FOD)

a. Pro

i. Incentives hard work and saving

ii. Encourages beneficiaries to provide care for testators.

b. Con

i. Leads to concentration of wealth & inequality

ii. Would be too expensive / difficult to police illegal transfers

3. The Constitutional Component

a. Sup. Ct. says the right to transfer stuff at death is a constitutionally protected “stick” in the bundle.

i. Thus, the gov’t cannot unduly limit the right to convey property at death.

4. Posthumously Acquired Property Rights: Can you control the disposition of property you don’t own at the time of your death?

a. No, you generally can’t control the disposition of property not owned at your death

B. Mechanics of Succession

1. Probate & Nonprobate Property

a. Probate property = passes under the will or intestacy

i. Administration of probate estat

e plan.


A. An Estate Plan by Default

1. Intestacy = are the background rules that apply in the absence of a will or nonprobate transfer

a. What laws govern?

i. For personal property? = The descent and distribution statute from the decedent’s state of domicile

ii. For real property? = the statute from the state in which the real property is located

b. Partial intestacy = occurs when your will only covers part of your estate & the rest passes through intestacy

2. Heirship & Expectancy

a. What is an heir? = are the persons who inherit if the decedent dies intestate

i. An heir has a mere expectancy when the decedent is alive, so he can’t assign his rights as an heir.

b. A Person named in a will is a beneficiary—not an heir

B. The Basic Structure of Intestate Succession

1. Separate Property:

a. §201.001—No Surviving Spouse (SS)

i. Children = if intestate has children, then the estate passes to intestate’s children & the children’s descendents

ii. Father and Mother (F&M) = if intestate has no children, then the estate passes in equal portions to F&M