Select Page

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

Intro into Estate Planning
1.     Power to Transmit Property @ Death: Justification & Limitations
A.Right to Inherit and Right to Convey
1)       Wills are creatures of statutes
2)       States can limit death time transfers but can’t completely abolish the ability to transfer @ death
3)       Hodel: S/ct held Act unconstitutional b/c deprived Indians right to dispose of their prop (been around 4ever)
4)       Right to transfer v. right to receive – constitutional protection applies to former
B. Policy of Passing Wealth @ Death
1)       Pro: Comfort & satisfaction (loved ones will be ok), Incentive to bring forth creativity, hard work, initiative, productivity, Relieve state burden, Give to dependents
2)       Con: Wealth in hands of the few (economic disparity), Discrimination- denial of equal opportunity to the poor, Unearned windfall, no merit for hard work, Oligarchy
C. Intro – Problem of the Dead Hand
1)       To my son only if he marries Jewish girl or money passes to State of Israel – Valid
o         Partial restraint on marriage, not a total one, so it doesn’t violate public policy, reasonable – freedom of religion, travel easier today, not punitive or destructive to family (no money unless you get off drugs)
o         Receive prop by will is creature of law, not natural right, no guarantee by st/fed constitutions
2)       Donor’s intent = meaning of donative document & given effect to max extent allowed by law
o         Freedom of disposition, except if purpose prohibited by overriding law
o         Spousal ES (S.C. is 1/3), Taxes, Creditor’s right public policy, RAP
2.     Professional Responsibility
A.Duty to Intended Beneficiaries – S/ct not ruled on issue, but likely duty if foreseeability and only remedy left
1)       Action for neg & breach of K against attorney – suits on tort – negligence/k – breach/both
2)       Probate cts construct wills validity, T’s intent – conclusions aren’t determinative in a malpractice suit (gen J court)
3)       Attorneys assume relationship w/client & client’s intended beneficiaries.
o         Attorney’s actions & omissions affect success of will
o         Foreseeable – injury to intended beneficiary (beneficiary’s interests can be greater than client’s)
B. Conflicts of History
1)       Dad made 2nd will & told attorney not to tell anyone – daughter alleged breached FD – misrepresenting dad’s will
o         Fiduciary relationship – Special confidence – bound to act in good faith –
o         No duty to disclose will, but duty to act in GF & not actively misrepresent 1st will
o         Factual issue therefore summary judgment is not proper
2)       A. v. B. – when representing H & W make sure to be ethical, its good to rep both (efficient)
C. Confidentiality
1)       Priestly approach – can’t tell one what other said
2)       Siv Treatment – tell both clients that you will have to tell the other client what is said
D.Engagement letters –agreement including possible waivers of conflicts of interest might be required in some situations
1)       Protects attorney
2)       You consented to the chance of this, w/drawl if conflict comes up
3)       Confidential info will be handled like this
4)       How fees are calculated
E. Termination Letter
1)       Law change – let client know you will not keep up w/changes
2)       Let them contact you to review their file
3)       Or send letter to set up an appt to review file b/c law changed
4)       If client hasn’t gotten new attorney
Intestacy: Estate Plan by Default(§§2-101-09, 20-7-1770-1825, 2-803, 2-110, 1-501-08, 2-801, 2-114) Pate v. Ford
Ø   Intestate estate: any part of estate not disposed of by will §2-101
o Complete intestacy – no will
o Partial – will doesn’t dispose of all prop b/c no residuary clause (everything else to Z)
o Default estate plan – based on who state thinks more worthy
o Law that rules is law in affect @ time of death
Ø   Probate assets = assets that pass by will or intestacy
Ø   Non-probate assets (life ins, joint tenancy) pass by some other means – different law
Basic Theme
Ø   Surviving Spousal Share – §2-102: Entire estate – if no issue OR ½  if decedent has surviving issue (lineal descendant)
Ø   Heirs – §1-103
o Issues of decedent take their share
ü   Equally if same degree of kinship,
ü   If unequal degree the more remote take by representation
a.        Representation – younger generation takes pre-deceased older gen. heir share
b.        SC recognizes modern representation – (2-106)
-Divide estate @ every generational level you have a taker –
-DON’T divide if @ 1st generational level everyone is dead
-If pre-deceased and no

ure kid is legit
o Applies for child to inherit from dad, not for dad/ his kindred to inherit thru kid unless, 
ü   Dad openly treated kid as his & hasn’t refused to support kid, then dad can inherit from child
ü   Can’t inherit if not paid support, but what if never asked – not sure meaning (2-114)
Ø   Deadbeat Parent
o Limits on parent’s entitlement as intestate heirs to estate proceeds § 2-114
o Upon motion of either parent or any other party of interest, PC may deny/limit either/both parent’s entitlement if
ü   By preponderance of evidence
ü   Failed to reasonable give support for the decedent and
ü   Didn’t provide for the needs of the decedent during his/her minority
Ø   Termination of parental rights – 2-109 (3) – Not kid if parental rights terminated, except if it would disqualify child to inherit 
Ø   Guardianship & Conservatorship of Minor
o Guardian appointed to care for personal needs (Disabled adult if child – parent automatically guardian, unless otherwise)
o Conservator: appointed to handle prop/fina affairs: Always court appointed, Parent not automatically, but ct can choice P
Bars to Succession
Ø   Homicide – Slayer act (2-803) – applies to everything: will, intestacy, life ins, K, Joint T, Bank accts, all Bs whose int +
o Feloniously and intentionally kills decedent (murder or manslaughter) (not involuntary manslaughter)
o Property passes as if killer predeceased decedent
o Proven by §(e)
ü   Guilty verdict in criminal action (and only guilty verdict – not plea of guilt) or
ü   Preponderance of evidence in civil court
Ø   Murder suicide (g) – Killer is considered to have predeceased the decedent if K dies w/I 120 hours after the killing,
o Killer’s estate doesn’t take from victim’s (H/W’s) but victim’s estate takes from killer’s estate
i.e. Hartman takes wife’s estate, his estate gets whatever had he survived