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Wills, Trusts, and Estates
South Texas College of Law Houston
Siegel, Mark R.

Wills, Trusts, & Estates
Seigel – Fall 2009

I. Introduction
a. General
i. What if you don’t plan ahead and complete a will?
1. The state’s rules of intestacy apply and they determine who gets the property
ii. Interplay with federal income tax code
1. Section 102 provides for three testamentary transfers
a. Bequest – transfer by will of personal property, including cash
i. Recipient is a legatee
b. Devise – transfer by will of real property
i. Recipient is a devisee
c. Inheritance – one dies without a will (intestate) and the state’s intestacy rules govern
i. Recipient is an heir
iii. Heirs
1. Hypothetical
a. A and B are married with three kids (C, D, and E)
b. Who are A’s heirs?
i. If A is alive, no one is an heir of A
A. Heirs are determined when one dies, not while one is alive
ii. If A is dead, his kids are his heirs
A. If A has parents or brothers and sisters, they are also his heirs
2. Types of heirs
a. Descendants – those that are born from the decedent
b. Ancestors – those that came before the decedent
c. Collateral – those that are not descendants or ancestors
i. Brothers, sisters, aunts, uncles, cousins, etc.
b. The Power to Transmit Property at Death
i. Right to transfer: natural right or statutory right?
1. Contemporary thoughts
a. Natural right
i. Locke
A. Argues that there is a natural right to receive property from ones parents
b. Constitutional right
i. Hodel v. Irving
A. 5th Amendment curtailed the government’s ability to restrict the transfer of property at death
c. Statutory right
i. Irving Trust v. Day
A. The right to transfer or receive property is statutory
1. The government could expand or contract the right as they saw fit
ii. Jefferson
iii. Blackstone
2. Hodel v. Irving
a. Congress attempted to prevent tribe members from transferring property by devise or through intestacy
i. However, they did not limit the ability of one to transfer property inter vivos or in trust
b. Court stated that Congress could not restrict one’s right to transfer property both through devise and through intestacy
i. Stated there was a constitutional right to transfer property at death
ii. However, stated that you did have the power to transmit property
c. Court protected the transferor, not the transferee
i. That is, the Court stated the decedent had the right to transfer property; the beneficiaries did not have a right to receive property
3. Other thoughts
a. Asher and Kristol arguments
i. Quasi-communistic in nature
A. Property belonged to the government and should revert back to the government/society at death
ii. Provided limited amounts that could actually be transferred at death
A. The problem with their thinking is that you could transfer an unlimited amount of property during one’s lifetime
1. There were other assets that you could not transfer at death
I. One’s name, family heritage, reputation, etc.
4. Ability to pass the right of publicity
a. Shaw Family Archive v. CMG Worldwide
i. Monroe’s likeness did not pass as part of her estate because the statute didn’t permit it
A. Allowed the likeness to pass if it was acquired after the execution of the will but before death
B. Acquisition of the right of publicity after death fell outside the will
b. Texas Prop. Code Sec. 26.005
i. Provides how property acquired after death is allocated
c. Texas Prop. Code Sec. 26.002
i. Provides retroactive application of the statute
A. Therefore, those that died before the statute was enacted can benefit
ii. Limits on the power to transfer or restrict the transfer of property
1. Public policy
a. Restrictions on the transfer of property that violate public policy will not be enforced
i. Shapira v. Union National Bank
A. A partial restraint on the transfer of property conditioned on marriage to a certain religion is valid
B. However, a total restraint based on marriage is not valid
b. Hypotheticals
i. Child gets money if they do not marry
A. Would not be enforceable as against public policy
ii. To a surviving spouse for life or until remarriage
A. Could be viewed in two ways
1. Incentive to keep one from marrying again
I. Against public policy
2. Attempt to make sure one is provided for
I. Supports public policy
B. Court would likely look at the underlying economics
1. If the true intent was to provide for the surviving spouse and the new spouse (through remarriage) couldn’t provide, the court may strike the restriction
2. However, if the new spouse was wealthy and could provide, the court would likely uphold
iii. Child gets money if they get a divorce
A. Violates public policy as it promotes divorce
iv. Child gets money if they outlive or divorce their spouse
A. Need to analyze whether there is an underlying economic purpose
1. Similar to the provision regarding remarriage

ish notice to let creditors know that one has died
ii. Of the claims, need to determine which ones are valid and which ones are not
d. Clear title to the assets
i. After payment of creditors, make sure the remaining assets have clean title
e. Distribute assets
i. Note that the executor must make sure to distribute assets to the proper party
v. Formal v. informal probate
1. Formal probate
a. The court supervises the administration of the estate
i. The court must approve the actions taken by the estate’s representative
b. Expensive and time consuming
2. Informal probate
a. The representative of the estate administers the estate without court supervision
i. This is true unless an interested party requests the court’s interaction
vi. Estate considerations
1. When one dies, how do you control the nonprobate assets?
a. Produce a death certificate
2. Is it absolutely necessary to go through the probate process?
a. No
i. Where assets are easily collected, debts are easily paid (for instance, by the surviving spouse), and title is already clear (or can be cleared without court intervention), you do not need to go through the probate process
ii. However, it does not mean you can go against the terms of the will
A. If there is a will, it needs to be followed
b. It is generally advantageous to do so
i. You get a court order declaring the rightful creditors of the estate
A. Helps insulate the executor from breaches of their fiduciary duty
ii. Once you begin the probate of the state, you give notice to creditors
A. Creditors that do not show up to claim property during the notice period are foreclosed from recovering
iii. Probating the estate will clear the title on assets
A. In certain circumstances, there may be a statute that provides for the clearing of title without court intervention
1. True of car titles in Texas
3. What is the problem with going through intestacy?
Assets held by the decedent will not