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Wills, Trusts, and Estates
University of Nebraska School of Law
Jannsen, Don R.

Wills and Trusts Don Janssen Winter 2011

I. History of inheritance

a. English common law

i. Did not allow people to devise their property

ii. Law of primogeniture

iii. “Use” – Statute of Uses

1. this was a way of transferring property and getting around the law of primogeniture

iv. 1540 – Statute of Wills

1. gave the right to transfer property by will

b. Hodel v. Irving (1987)

i. Facts: Gov. set up a system holding Indian lands in trust

1. Gov. set up a statute that said that if the Native Americans subdivided the ownership of a parcel of property into too many interests of ownership, the property would escheat to the tribe.

ii. Issue: Does this infringe on a fundamental right?

1. Court says that total abrogation or taking away of the right to transfer property is unconstitutional—“There’s no question”

iii. Indian Land Consolidation Act, p. 5

1. Statute applies to:

a. Interests descended by intestacy OR devise

2. Note 3, p. 9

a. The owners of those interests could have created a revocable trusts to get around the statute

i. Nevertheless, the statute was unconstitutional

c. Public Policy

i. What should we do with somebody’s property when they die?

1. 5 options, p. 11

a. 2 viable options

i. confiscation by government

ii. wishes of decedent can by honored

1. this is generally what we’ve chosen to do

ii. Why allow people to do what they want with their wealth when they die?

1. It encourages productivity and innovation and the accumulation of wealth

a. This is what we want to encourage under a capitalist economic system

b. De Toqueville (1700’s) quote, p. 13

i. Great fortunes should not remain in the same hands

1. There can be rich men, but they should not form a class

ii. System should not allow great inherited accumulations of wealth

1. Over time, wealth in our country becomes more centralized

d. Estate tax

i. tempers this to some extent

1. However, most people who die don’t pay estate tax

2. Federal estate tax – gradual reduction until 2010, then starts over in 2011

e. Kristol’s idea, p. 16

i. We should discourage the inheritance of large fortunes

1. Limit inheritance to any given person to $1,000,000

f. Freedom of disposition

i. There is a general freedom to dispose of your property as you see fit at death

1. One limitation

a. Spouse

i. usually always has a claim to the property unless he/she waives the right

ii. There are some things you can’t do for policy reasons

1. Can’t say that you only inherit the wealth if your get divorced, or commit a crime

II. Introduction to the Problem of the Dead Hand

a. Shapira v. Union National Bank (1974)

i. Condition upon petitioner’s inheritance: he has to be married to a Jewish girl whose parents are also Jewish

1. Is this unconstitutional?

a. Yes. A partial restraint on the right to marry such as this is not a violation of the 14th amendment

i. The restraint imposes only reasonable restrictions and is therefore valid and not contrary to public policy.

2. Restatement (Second) of Property, p. 27

a. A restraint to induce a person to marry within a religious faith is valid “if, and only if, under the circumstances, the restraint does not unreasonably limit the transferee’s opportunity to marry.”

b. General Rule

i. Conditional gifts are valid unless the condition falls within one of the well-recognized exceptions

1. Invalid conditions

a. Absolute restraints on marriage

i. See Shapira (partial restraints are NOT invalid)

b. Religion requirement

c. Encouraging separation or divorce

d. Promoting family strife

e. Property destruction directive

III. Probate

a. Probate vs. Nonprobate

i. Probate property

1. property that passes under the decedent’s will or by intestacy

ii. Nonprobate

1. passes under an instrument other than a will

a. Examples

i. Joint tenancy, Life

You file in the county in which the decedent was domiciled (NOT necessarily the county the decedent died)

e. Timing

i. File no sooner than 5 days after death and no later than 3 years after death

1. After 3 years, there is a conclusive presumption of intestacy. If nobody steps forward state will presume there’s no will.

a. This is a 1990 UPC provision NOT in Nebraska

i. NE therefore doesn’t have this rule

ii. You can still probate after 3 years in NE, except for creditors—they’re out of luck

ii. Personal Representative

1. Priority system for registrar to use to determine who the personal representative is

a. First priority: the person designated in the will

i. The will usually contains a prioritized list of persons appoint to be the personal representative

2. Court issues a letter of personal representative

a. This gives the personal representative proof of authority to act on behalf of the decedent’s property

3. Fee

a. PR is entitled to a fee

i. But PR often waives the fee because they’re family, and in many cases the PR is getting the property anyway

4. Bond

a. PR may be required to post a bond as insurance that PR won’t steal money

i. However, most wills waive the bond requirement because it’s mostly wasted expense

f. Notice

i. Who gets notice that the will has been submitted to probate?

1. Devisees named under the will

2. People who would be intestate heirs in absence of a will

3. Creditors

a. 30-2483 – Publication requirement

i. Notice must be published once a week for three consecutive weeks in a local newspaper