Wills Outline-Fall 2007
Ch. 1: Introduction to Wills, Trusts, and Estates
I) The Power to Transfer Property At Death (Supp. p.1)
A) Power to Transfer: A decedent has the right to dispose of his or her property at death; however the state has the power to regulate..
B) Public policy arguments:
1) Pro: A person should have the power to transfer his or her property at death because such a policy is consistent with a system of private property; encourages and rewards a life of hard work; is consistent with and promotes family ties; encourages individuals to accumulate wealth for old age and to give to family; and encourages family members to love, serve, and protect their elders.
2) Con: A person should not have the power to transfer his or her property at death because such a policy perpetuates economic disparity and discrimination and constitutes an unearned windfall to those who happen to have wealthy relatives—and such unearned wealth creates powers and privileges that are undeserved and denies equal opportunity to all children.
II) “Dead Hand” Control—Decedent’s condition on a beneficiary’s gift. (Supp. p.3)
A) Rule: Decedent’ condition cannot violate public policy. The test is reasonableness.
1) Invalid Conditions:
(a) Absolute restraints on marriage. The exception is partial restraint. Shapira v. Union National Bank (son would only inherit if he married a Jewish girl. Court found that a partial restraint of marriage which imposes only reasonable restrictions is allowed.) A will is normally invalid if it encourages disruption of a family.
(b) Religion Requirement
(c) Encouraging separation and/or divorce. Fineman (Will wanted child to divorce)
(d) Promoting family strife
(e) Property destruction directive
B) Restatement (Third) of Property—favors freedom of disposition. Protective of donor’s intent, providing that a “donor’s intention is given effect to the maximum extent allowed by law.”
III) The Probate Process: An overview (Supp. p. 7)
A) Default: Probate is the default. The decedent must take affirmative steps (valid will or create a valid non-probate instrument) to avoid probate.
B) Probate administration: The probate court appoints a personal representative. He has the job of collecting the decedent’s probate assets, paying off creditors’ claims, and distributing the property to those who are entitled.
IV) Estate Planning (Supp. P. 10)
A) Key Objectives: (a) Honoring Intent; (b) Avoiding Estate Taxes; (c) Avoiding Probate
B) Professional Res
Any Property no passing to a surviving spouse passes as follows
4. Issue of parents
6. Issue of Grandparents
By degree of relationship
8. Escheat to the state