Wills and Trusts
Horton
Fall 2014
I. Problems with Controlling Property After Death
a. Theoretical Justifications
i. For allowing people to pass their property at death
i. Encourages hard work, creativity and savings
ii. Reinforces family ties
iii. Easier to administer than other alternatives
ii. Against allowing people to pass their property at death
i. Beneficiaries are allowed to reap a windfall
ii. Creates aristocracy and perpetuates unequal distribution of wealth
b. Dead Hand Control: The ability of the decedent to control the distribution of his property after death
i. Distributional Freedom: In the US, testators and settlors have generally unfettered distributional freedom
i. In general, the law does not grant courts the authority to question the wisdom or fairness of the donor’s decisions
ii. MARRIAGE RESTRICTIONS
i. Total Restraints on Marriage: Void per se as against Public policy
ii. Partial Restraints on Marriage: Two Approaches
a. Under Shapira, A partial restraint on marriage is valid if….
i. The restraint is reasonable meaning that (1) the beneficiary has a decent opportunity to meet the restraint within the time by the will and (2) T showed devotion to the cause by giving the gift to the faith if the bequest failed (Cf. Shapira)
ii.
b. Under Feinberg, a partial restraint on marriage is per se invalid if….
i. The gift is conditioned on the beneficiary marrying within a particular religion (Cf. Feinberg)
iii. VOID DISTRIBUTIONS
i. A testator may not impose conditions that are….
a. uncertain; or
b. unlawful; or
c. opposed to public policy
i. Distributions cannot substantially impair another’s right to peaceably enjoy his or her property
1. EX: a testator cannot direct her house to be destroyed upon her death if that act would detrimentally affect the community and result in a loss to the estate (Cf. Eyerman)
iv. Incentive Trusts: Financial rewards for beneficiaries to pursue specific educational, lifestyle, or career paths
II. Intestacy
a. Introduction
i. A decedent dies intestate if….
i. They die without having executed a will
ii. Partial vs. Total Intestacy
i. The D is totally intestate if…
a. None of the property belonging to D is covered by a valid will
ii. T is partially intestate if…
a. D has a valid will but it fails to dispose of all of D’s property. Any property not covered by the will passes through intestate succession.
b. Share of the Surviving Spouse
i. UPC: does not apply to surviving domestic partners!!!
i. D has surviving children or grandchildren (if D is only survived by one of S’s kids from a previous marriage, that doesn’t Count)
a. Does D have surviving descendants who are NOT S’s descendants?
i. YES: S takes 150K + ½ the remainder
ii. NO
b. IF NO, does S have any children or grandchildren that are not D’s?
i. YES: S takes 225K + ½ the remainder
ii. NO: S takes everything
ii. D has NO surviving children or grandchildren
a. Does D have surviving parents?
i. YES: S takes 300K + 3/4 the remainder
ii. NO: S takes everything
ii. CPC: applies to surviving domestic partners as well as spouses
i. S’s/DP’s share of Community Property
a. S’s/DP’s share is all of the community property that legally belonged to the Decedent
i. NOTE: While S’s/DP’s share is considered ½ of the community property, this really means that all of the community property goes to him or her
ii. S’s/DP’s share of Separate Property
a. D has surviving children or grandchildren
i. Does D have….?
1. More than 1 surviving child; or
2. 1 surviving child and descendants of 1 or more deceased children; or
3. Descendants of 2 or more deceased children
a. YES: S/DP takes 1/3 of the separate intestate estate
b. NO: S/DP takes ½ of the separate intestate estate
i. i.e., D has only 1 surviving child or descendants of only 1 deceased child
b. D has NO surviving children or grandchildren
i. Does D have surviving parents OR descendants of either parent?
1. YES: S/DP takes ½ of the separate intestate estate
2. NO: S/DP takes all of the separate
III. Distributional Schemes
a. Per Stirpes (1/3 of States)
i. D’s estate is divided into shares as follows:
i. Create One share for each surviving child
ii. Create One share for each deceased child that has surviving descendants
a. THEN: Split the shares of any deceased child equally among his next level of descendants
b. Per Capita with Representation (1/2 of states + CPC)
i. D’s estate is divided into shares as follows:
i. One share is created for each surviving descendant at the first level with a member still alive
ii. One share is created for each deceased descendant with issue at the first level with a member still alive
a. THEN: Split the shares of any deceased descendant among his descendants
c. Per Capita at Each Generation (UPC)
i. D’s estate is divided into shares as follows:
i. One share is created for each surviving descendant at the first level with a member still alive
ii. One share is created for each deceased descendant with issue at the first level with a member st
ve right to adopt through the parent. BUT parent cannot inherit from the child. So a sibling of the former parent cannot inherit from the adopted children. One-way street.
b. Adult Adoption
i. In most states, an adopted adult is treated as a biological child of the person who adopted them
ii. LIMITATION: Adoption for the Purpose of Effecting Another’s Estate Plan
i. An adopted adult will not be treated as the biological child of the person who adopted them if…..
a. The decedent clearly did not intend for the adopted adult to inherit (Cf. Minary)
c. Children Conceived after Death
i. Woodward Approach
i. Posthumously conceived children are considered valid heirs if:
a. During life, D clearly and unequivocally consented to (1) posthumous reproduction and (2) support of resulting child
i. NOTE: the Court in Woodward also suggested that there might be time limitations that may preclude commencing a claim for succession rights on behalf of a posthumously conceived child.
ii. UPC Approach
i. Posthumously conceived children are considered valid heirs if:
a. D consented to posthumous conception is a signed writing; OR
b. D’s consent is otherwise proved by clear and convincing evidence; AND
c. The child is in utero not later than 36 months or is born not later than 45 months after the parent’s death.
iii. CPC Approach
i. Posthumously conceived children are considered valid heirs if:
a. D consented in a signed + dated writing; AND
b. Notice of posthumous reproduction is served on the administrator, executor, or trustee within 4 months of death; AND
c. The child is in utero within two years of the death; AND
d. The child is not a clone of the decedent
VI. Advancements
a. Is the gift an advancement?
i. CL: Gifts are presumed to be advancements
i. Heir bears the burden of proving that D didn’t mean a gift to reduce her inheritance
ii. UPC: Gifts are not presumed to be advancements
i. A gift is an advancement if:
a. D declares that the gift is an advancement in a contemporaneous writing; OR
b. The D acknowledges, in writing, that the gift was an advancement
