Dead Law
Brophy
Fall 2001
I. Introduction to Estate Planning
We will be studying three parts in this course:
1. Intestate Succession
2. Transition of Wealth, Estate Planning
3. Wills
The Power to Transmit Property at Death: Justifications and Limitations-
1. Hodel v. Irving- Indian land passed down to heirs, but too many people began owning small parcels of land. More money was spent on administration than the actual value of the property. The government decided to take the land worth $100 or less, and give it back to the tribe.
a. To the extent a property right is extinguished, it doesn’t matter how small the value of the property is. The person who loses that property right should be reimbursed for the value of the property.
b. The government can’t entirely eliminate one’s property right.
c. An appropriate remedy has been found to be to give the property owner a financial sum equal to the property value.
d. Escheat- reversion of property to the state upon death of an owner with no heirs or will.
e. The court in Hodel said that taking property without compensation to decedent’s estates violated the 5th amendment.
2. Shapira- The decedent says in his will that his son’s must marry a Jewish girl within 7 years of his death or not obtain any inheritance. The court tried to determine if the restriction was a reasonable one on the P.
a. The court said it was a reasonable restriction on the P because it was only a partial restraint on the right to marry, not an absolute restraint.
b. In general, an absolute prohibition on marriage is void.
c. From Shelley v Kraemer, we know that the 14th amendment prohibits direct state legislative action that enforces private provisions restricting the right to marry. The Court did not believe this case was at issue.
d. The right to receive property by will is a creature of the law, and is not a natural right.
e. The court concluded that upholding the restriction on marriage in the will is not violative of the Constitution. The court reasoned that a partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy.
f. The court decided that gifts conditioned upon the beneficiary’s marrying within a particular religious class or faith are reasonable.
g. A key determination was that the decedent wanted the money to fund the Jewish religion, either through his kids or through the State of Israel. This was significant because it distinguished the depth of the testator’s conviction.
e, typically in the following order:
1) Surviving spouse
2) Children
3) Parents
4) Siblings
5) Creditors
c. The Administrator must give bond.
d. In AL, the Probate Court has jurisdiction over the administration of decedent’s estates.
e. A person dying testate devises real property to devisees, and bequeaths personal property to legatees. This means real property descends to heirs and personal property is distributed to next of kin.
f.
5. Probate Procedure and Is Probate Necessary-
a. Probating a will performs three functions:
1) it provides evidence of transfer of title to the new owners by a probated will or decree of intestate succession;
2) it protects creditors by requiring payment of debts; and
3) it distributes the decedent’s property to those intended after the creditors are paid.
The will should first be probated in the jurisdiction where the decedent was domiciled at the time of death, which is the primary or domiciliary jurisdiction. If
