Select Page

Wills and Estates
University of South Carolina School of Law
Medlin, S. Alan

INTRODUCTION TO ESTATES: PROBATE VS NON-PROBATE

o Section A – The Power To Transmit Property at Death: Its Justification and Limitations
§ Hodel v. Irving [Provision in Indian Land Act that provided that land escheated to the state at the death of the property owner] · Congress has considerable latitude in regulating property rights in ways that may adversely affect the owners
· Test for “Taking”
o Court examines several factors:
▫ Economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action
· Complete abolition of both descent and devise of a particular class of property may be a taking
§ Most powerful argument against allowing transmission of wealth – Perpetuates disparity of wealth through transfers of great wealth

§ Shapira v. Union National Bank [Father left inheritance to son only if he married a Jewish girl within 7 years] · The right to receive property by will is a creation of the law
o Not a natural right or one guaranteed by the Constitution, although the right to transfer property at one’s death is a constitutionally protected right.
§ A restraint to induce a person to marry within a religious faith only if the restraint does not unreasonably limit the transferee’s opportunity to marry
· Unreasonable limits as to marriage are when a marriage permitted by the restraint is not likely to occur
§ A will or trust is normally invalid if it is intended or tends to encourage disruption of a family relationship or if it is conditioned on anti-social behavior
· Provisions encouraging separation or divorce have usually been held to be invalid
· Gift-Over Clause – if there is a gift-over clause and the court finds the condition to be invalid then the inheritance will go to whomever the gift-over clause specifies.

o Section B – Transfer of the Decedent’s Estate
§ Probate and Non-probate Property
· Probate property: Property that passes under the decedent’s will or by intestacy (b/c the property is in your name and is not subject to any other contractual agreement)

· Non-probate property: Property that passes other than a will that becomes effective before death. Has some lifetime significance to it usually b/c of some contractual agreement.
· Most property today passes by non-probate
o Joint Tenancy Property
▫ The decedent’s interest vanishes at death and the surviving owner has the whole property
o Life Insurance
o Contracts with payable-on-death provisions
o Inter-vivos Revocable & Non-revocable Trusts

§ Administration of Probate Estates
· History and Terminology
o The first step is to appoint a personal representative
▫ Duties are:
§ Inventory and collect the assets of the decedent

eached this duty of care owed to the son “intended beneficiary”
▫ Exception to the Privity Rule
▫ Emphasis is on foreseeability of injury to the intended beneficiary
o Can be based on either tort or contract theory

· Hotz v. Minyard [Brother and sister fought over the devise of car dealerships from father] o A fiduciary duty exists when one has a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith
o Even though the lawyer is under no duty to disclose the presence of a second will against his client’s wishes, he must deal with other parties with good faith and not actively misrepresent
o Permissible Conflict of interest is ok – but you want to AVOID engaging in an impermissible conflict of interest.

As an Atty you can avoid Ethical Problems by drafting an engagement letter & a termination letter: 3 things to focus on in the Engagement Letter:
1) Conflict of Interest Problem
§ You believe you can represent both adequately
§ You explain to them the issue and they consent (I.E – husband & wife – drafting wills).