Wills & Trusts
Professor DeLaTorre
Fall 2007
Introduction to Estate Planning
1) Inheritance and its Limitation
a) Taking Property without Just Compensation
i) The right to transfer property at death is a property right
ii) The state cannot completely eliminate the power transfer of property at death. Hodel v. Irvin
iii) If the state completely removes the ability to transfer property at death, it constitutes a taking that requires just compensation. Hodel.
b) The Constitution itself does not grant the right to transfer or receive property
i) The state may limit the power to transfer property
ii) The right to receive property is a creature of statute
c) Restraints on Marriage
i) Total restraints on marriage are void as against public policy
(1) Promote marriage
(2) Promote reproduction
(3) Society benefits from marriages
ii) Partial restraints must be reasonable
(1) Limiting the amount of inheritance if child gets married is reasonable (ex. Married daughter gets less; single daughter gets more; rationale that married daughter does not need more is a reasonable restriction)
iii) If a will requires that a beneficiary marry within a certain religion, courts have held that such restriction is reasonable.
2) The Probate Process
a) Probate v. Non-probate
i) Probate requires court proceedings before the beneficiaries are entitled to take
ii) In non-probate transfers, the beneficiary is immediately entitled to take without going through probate
b) Functions of Probate
i) Transfer Wealth
ii) Clear Title
iii) Protection from Creditors; paying taxes
iv) Fulfilling the testamentary intent of the decedent (*arguably the most important function*)
c) Process
i) Offer the will for probate
ii) Collecting assets
iii) Paying family allowance and setting aside homestead and exempt personal property
iv) Paying creditors’ claims and taxes
v) Distributing the assets of the estate upon the probate court entering decree of distribution
d) Terminology
i) Executor: Personal representative named in a will
ii) Administrator: personal representative appointed by the court
iii) Succession: beneficial entitlement to the property of the decedent
iv) Heir: person entitled by statute to the land of the intestate
(1) Expected: takes by inheritance
(2) Prospective: may inherit but may be excluded
(a) Heir presumptive: will inherit if the intestate dies immediately but who will be excluded if other relatives of closer relationship are born
(b) Heir apparent: one who is certain to inherit unless excluded by a valid will
v) Ascendant or Ancestor: person related to an intest
ees payable (attorneys etc.)
iii) Closing the estate
(1) Representative is under a fiduciary duty to the estate until the court grants discharge
3) Professional Responsibility
a) A lawyer should not prepare a will unless the lawyer is competent to do so
b) Lawyers owe fiduciary duties to their clients
c) Lawyers also owe a duty of care to foreseeable third party beneficiaries of wills
d) Claims against lawyers may arise out of contract or negligence
Intestacy: Estate Plan by Default
1) Definition and Jurisdiction
a) Estate plan by default where Decedent dies without a will, the will is invalid, or property is not disposed of by will
b) Jurisdiction: generally where the decedent was domiciled at the time of his or her death
c) Entire intestacy or partial intestacy is permissible
2) Determining Probate v. Non-Probate Property
a) Probate v. Non-Probate Property
i) Probate property is any property passing under the decedent’s will or by intestacy.
ii) Non-Probate Property passes outside the will or the Intestacy Statute.
