Trusts and Estates Outline

Trusts & Estates Outline
Final:
– 4 hours (open book)
o M/C or short answer
o Celebrity will (1 hour)
§ Short answers related to will
o Bar exam essay
o 4 sections (equal weight)
§ 2 essay questions
§ 5 short answers (only answer 4)
§ 4 short answers – based on trust
o Assume UPC and UTC apply
o Emphasize issue spotting
o Each section in new blue book
o One side of book only
o Tab UPC

1. Right To Transmit Property
a. 2 general rights
i. Right to devise – the right to identify who will get the property (e.g., I designate A to receive Blackacre)
ii. Right to descent – property will descend to someone else without any action taken by shareholder
2. Common Elements of Trusts and Estates
a. Stuff—some form of Estate (decedent) or Corpus (trust).
b. Original Owner—decedent or grantor, trustor or settlor.
c. New Owner—devisee, heir, or beneficiary.
d. Fiduciary—executor, personal representative, or trustee.
e. Purpose—getting the property to the new owner and maybe more.
i. There are all kinds of creative way to relay property with trusts.
3. Right to Transmit Property
a. There is no inherent right to transmit property.
b. Thus, estate planning and trust can be regulated.
c. Hodel v. Irving
i. Holding:
1. Right to devise property is its own property right within its own bundle of rights; and that right was taken away.
a. Right cannot be abrogated entirely – it could have been modified constantly but not taken away completely
2. Right to the property was totally taken away and constituted a taking.
3. The US may prevent the owners of such tiny interests from further subdividing the parcels among future heirs on pain of escheat. The heirs really received no profit from the parcel.
ii. Effect – There is a constitutional right transmit property (pass property), however there is no constitutional right to receive property.
1. In ND there are escheat provisions if the heirs are not found
d. Dead Hand Control
i. Generally
1. Refers to the how decedents can control how their property is used or transmitted after their passing.
2. The testator attempts to control the living from the grave (provisions in the will that mandate or prohibit certain actions by the heir)
3. Restatement of Property §10.1 respect what the testator wanted “Donor’s intention determines the meaning of a donative document and is given to the maximum extent allowed by law.”
ii. Shapira v. Union Nat’l Bank
1. Father will stated that if the sons wanted to receive their inheritance they have to marry a good Jewish girl within a few yrs otherwise he loses the inheritance to Israel.
2. Son claims that the will provision interfered with his constitutional right to marry or it is against public policy
3. constitutionality:
a. no constitutional right to receive an inheritance
b. the will does not prevent the son from marrying, it simply doesn’t give him the money if he does not marry a Jewish girl
4. public policy
a. A partial restraint of marriage which imposes only reasonable restrictions is valid and not contrary to public policy.
b. It was reasonable here according to the court
c. The father