Hodel v. Irving- This case stands for the principle that govt. cannot take property from citizens (living or dead) without due process of law and just compensation. The government has constitutional restraints on its powers to take property.
Blackstone- The owner of property has the right of descent of the property owned by them at death.
Shapira v. Union National Bank- A person can place reasonable restrictions on the descent of their property as long as such restraints are not unconstitutional or against public policy. Right of testation. NO constitutional right to an inheritance.
Devise= A testamentary disposition of assets
Inheritance- Only for intestate succession
Estate= Property that does not go through probate vs. all property a person owns
Probate Estate= Property that requires clearing title to property through operation of law.
Non-Probate Property- Joint Tenancy property, Life Insurance, Contracts with payable on death provisions & Interests in trust.
Probate Assets- Asset passing through a will or through intestacy that requires either
(1) probate of a will –or-
(2) Finding of intestacy and appointment of a personal representative.
Administrator CTA (Cum Testimonium Anexo)- Court appointed party to administer a will when the executor is not available. (Always plan a back up so this does not happen).
Administrator de bonus non- Person to administer assets of decedent when the estate has been administered and new property is found, but the executor is no longer available.
Executor/Administrator’s job is to preserve property of the decedent while the estate is open.
14th Amend. Due Process Clause governs the administration of estates
473.360= 6 month bar non-claim statute if all creditors are given notice.
Personal representative/ executor- oversees winding up of decedent’s affairs (Party named in will).
Duties of Personal Representative
(1) Inventory and collect assets of decedent
(2) Manage assets during administration
(3) Receive and pay claims form creditors and taxes
(4) Distribute remaining assets to properly entitled parties
Administrator- Court appointed party
probate can be demanded by any interested party and can be used to:
(1) Probate a will
(2) Block informal proceedings
(3) Secure a declaratory judgment of intestacy*
*Declaratory judgments made in Solemn Form Probate become final judgments if not timely appealed.
UPC 3-108- All proceedings must be initiated within 3 years of death and if no will is probated within 3 years of death then there is a conclusive(irrebuttable) presumption of intestacy that results.
Four Functions of Probate-
(1) Provide evidence of transfer of title by probated will or decree of intestate succession.
(2) Protects creditors by requiring payment of debts and bars claims if they fail to bring timely action.
(3) Distributes property to those intended after creditors are paid giving a will the force of law.
Provides a ready forum for disputes to be resolved after death.