Estates and Trusts Outline

ESTATES & TRUSTS
 
Introduction; The Role of the Lawyer; Probate and Non-probate Transfers   
CHAPTER 1 – INTRODUCTON
1)      The Living and the Dead: Whose Money is It?
a)      Introduction
i)        Why should be allow people who have died to control wealth in this world?
b)      SHAPIRA v UNION NATIONAL BANK 1974
i)        Dad limits share of inheritance to two sons by a condition they marry a Jewish woman whose parents are Jewish
ii)      COURT
(1)   The right to marry is constitutionally protected from restrictive state legislative action
(2)   But here the court is not being asked to enforce an unconstitutional restriction upon a constitutional right, but a testator’s restriction upon his son’s inheritance
(a)    Would be a different story if case involved restrictive actions by state governing agencies
(i)     Eg. Public management enforcement of racial restrictions
(3)   The right to receive property by will is a creature of the law, and is not a natural right or one guaranteed or protected by either the state or US constitution
(4)   The upholding and enforcement of the provisions of the will conditioning marriage does not offend the Ohio or US C
(5)   A partial restraint of marriage which imposes only reasonable restrictions is valid, and not contrary to public policy
c)      Terminology
i)        Testator – person who has written a will
ii)      Testate – how a person dies if the person dies with a duly executed will
iii)    Intestate – how a person dies who dies without a will
iv)    Heirs – people who obtain an intestate decedent’s property
v)      Devisees (legatees) – persons designated to take the property the testator’s will disposes of
vi)    Devise (legacy, bequest) – a clause directing disposition of property
(1)   Terms used interchangeably today, but traditionally
(a)    Devise = disposition of real property
(b)   Legacy = disposition of money
(c)    Bequest = disposition of personal property other than money
vii) Escheat – passes to “the law doesn’t require that all property escheat to the state”
viii)            Disclaimer – act of turning down a gift, devise, or inheritance
d)     Inheritance rights more generally
i)        The right to dispose of property is rooted in positive law, subject to legislative adjustment
ii)      Total abrogation of the right to pass property is unprecedented and likely unconstitutional
e)      Article: Curtailing Inherited Wealth
i)        So long as we cont to tolerate inheritable by healthy adult children, what we as a nation are proclaiming is that” All men are created equal, except the children of the wealthy”
(1)   The government needs new sources of revenue
(2)   Substantial limitations on inheritance would contribute meaningfully to the equality of op we offer our children
(3)   Such a limitation would be fully consistent with our notions of private property
f)       Article: A Qualitative Theory of the Dead Hand
i)        Rationales for testamentary freedom
(1)   Notion that testators have a natural right to bequeath
(2)   Fulfills the normative goal of wealth maximization
(3)   Supports a market for the provision of social services – testator’s power encourages her beneficiaries to provide her with care and comfort
(4)   Right would be difficult to curtail
(5)   Right accords with human wishes
g)      RIGGS v PALMER 1889
i)        Grandson kills grandfather to obtain inheritance he left him
ii)      No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime
h)      FORD v FORD 1986
i)        Daughter murdered her mother and now claims property under mother’s will, daughter’s son objects as alternative beneficiary, daughter found not G by reason of insanity and committed
ii)      ISSUE – can a murderer, or his heirs and representative through him, be enriched by taking any portion of the estate of the one murdered?
iii)    COURT
(1)   Two views
(a)    CL principle of equity – no one shall be permitted t