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Decedents' Estates and Trusts
University of Illinois School of Law
Ross, Richard J.

Decedents’ Estates and Trusts, Professor Ross, Fall 2015
§  25 multiple-choice questions that are similar to problems in Materials (one-paragraph setup with question like who gets estate)
§  1 essay question that is based on policy (e.g., there are multiple approaches to handling problem—which one do you think is best?)
o   A: Add something to what comes from the book and class discussion—DON’T JUST GIVE THESE THINGS BACK TO THE PROFESSOR
o   ORGANIZE YOUR ESSAY AND MAKE YOUR STRUCTURE DEAD OBVIOUS—provide your thesis at the beginning (e.g., “I favor this position for three reasons) and use transition sentences
§  Will: A document that expresses someone’s desire about what happens with their property after death
§  Codicil: An amendment to a will
§  Probate: The process of probate consists of going to a court, showing the court a decedent’s will, and asking the court to certify that the will is valid and put the decedent’s last wishes into effect   
§  Executor: The person named in the will to carry out the instructions of the will
§  Administrator: A person who is appointed by a court to oversee an estate 
§  Heirs: The people who take property when someone dies without a will
o   Living people have heirs apparent, not heirs, and do not have heirs until they die
§  Devisees/Legatees/Beneficiaries: The people who take property when someone dies with a will
§  Issue: Descendants (e.g., children, grandchildren, great-grandchildren—people who issue forth from an individual’s body)
Restrictions on a Testator’s Power
§  Conditions
o   Shapira v. Union National Bank
·         Facts: David Shapira, M.D. died with a will. It provided that his son Daniel would only receive his inheritance if he married a Jewish girl whose parents were both Jewish. If Daniel did not marry an eligible Jewish girl within seven years, his inheritance would go to the State of Israel.
·         The Court of Common Pleas of Ohio:
Ø  Daniel lost on his constitutional claim
v  The Court was being asked to enforce David’s restriction or condition upon Daniel’s inheritance, not a restriction on Daniel’s right to marry
·         Professor Ross: The result may have been different if (1) David’s will had provided that Daniel would only receive his inheritance if he never got married, (2) there was not a sufficiently large number of marriageable Jewish women in the area in which Daniel lived, (3) Daniel had been six years old when his father died, (4) there was a lot of prejudice or malice on the will’s face, or (5) the item to be received was potentially life changing (e.g., a small island versus a few hundred dollars)
·         Hornbook Law:
Ø  The Restatement (Second) of Property: Unless contrary to public policy or violative of some rule of law, a provision designed to prevent the acquisition or retention of an interest in property in the event of any failure on the part of the transferee to comply with a restraint on personal conduct is valid
Ø  The Restatement (Third) of Trusts (NEWER VIEW): A court must conduct a balancing test in order to determine what is contrary to public policy by balancing a donor’s freedom of disposition against the effects of dead hand control on the conduct and freedom of other people
v  A court will throw a provision out if it is unnecessarily punitive or unreasonably intrusive
Ø  The Restatement (Second) of Donative Transfers (OLDER AND MORE ACCEPTED VIEW): A partial restraint on marriage is valid if it does not unreasonably limit the beneficiary’s opportunity to marry
·         Continuum of Restrictions:
Ø  Land Use/Education: Obviously upheld
Ø  Race: Obviously struck down
Ø  Religion: In the middle of restrictions involving land use/education and restrictions involving race—courts usually do not treat restrictions involving religion like those involving race, and they tend to uphold conditions that involve marrying within a particular religious faith
§  Destruction of Property
o   This is a limitation on a testator’s right to have his or her property disposed of after his or her death
o   If a person’s will instructs the executor to destroy his house after his death, a court will tell the executor not to destroy the house because, for example, the destruction would harm the neighborhood in which the house is located
o   The Hugo Black case is wrapped up in public policy in a way that the Franz Kafka case is not
·         Many commentators think that the correct solution is to seal the items in a case involving quasi-public and quasi-private records like those involved in the Hugo Black case
·         The argument in favor of respecting Kafka’s wishes is that an author must know when a work is ready to go out to the world
o   A court probably would not allow a provision providing that a Rembrandt painting is to be buried with an individual after the individual dies to stand because it is of immense cultural significance
o   Imagine that a woman asks her children to put all of her clothing and jewelry—which constitute movable and personal property—into her grave after her death
·         She cannot do this because the problems of malice and reducing the wealth of her heirs for no real reason come into play, and placing personal property into caskets encourages grave robbing
o   People can get away with being buried in their favorite suits and wearing their wedding rings because this is not viewed as malicious and certain items are signifiers of people’s inner essences
·         Destruction, however, would be prohibited if an excessive amount of items like the ones above are to be buried
o   Org

(A’s child from a previous marriage), by D (a child of A and B), and by PS (a previous spouse).
Ø  UPC § 2-102(4): B gets $150,000 plus half of the rest because C is not a descendant of B
v  The other half goes to C and D—each of them get one-fourth
v  PS gets nothing
Ø  Alternative: B dies and A survives.
v  UPC § 2-102(3): A gets $225,000 plus half of the rest—not the whole estate due to the fact that he has a child from a previous marriage— because C and D are both A’s children
ª      The other half goes to D because C is not a surviving descendant of B, the decedent
§  Simultaneous Death
o   The Uniform Simultaneous Death Act (pre-1991)
·         If there is no sufficient evidence of who died first, the beneficiary is deemed to have died before the donor
·         When an insured and the third-party beneficiary of a life insurance contract died simultaneously, the proceeds were distributed as if the insured survived the beneficiary
o   Janus v. Tarasewicz
·         A husband and wife were at a funeral. They took Tylenol that was laced with cyanide. The husband was in worse condition than his wife and declared dead. The wife was revived and remained alive for a little while before dying. The husband had a life insurance policy under which the wife was the first beneficiary and the husband’s mother was the second beneficiary. His mother argued that if there was no sufficient evidence that the wife survived her son, then the insurance money should go to her.
·         The sufficient evidence standard creates a lot of problems
o   UPC § 2-104: An heir, devisee, or life insurance beneficiary who fails to survive by 120 hours (5 days) is deemed to have predeceased the decedent. A claimant must establish survivorship by 120 hours by clear and convincing evidence.
·         This UPC standard is a default standard, which means that a person can get out of it by creating a will
§  Problem
o   6. Assume the operation of the Uniform Simultaneous Death Act (pre-1991 amendments). Roy and June are married. Their parents are dead. They have no children. Roy has a sister and June has a brother. Roy and June are badly injured in a common accident. They linger awhile, but die within two days of each other.
·         There is “sufficient evidence” that Roy died first