Select Page

Wills, Trusts & Future Interests
Wayne State University Law School
Cancelosi, Susan Evans

I. Introduction to estate planning
A. Power to transmit property at death
ˆ   Old View: Right of succession to property by will or intestacy of a deceased is of statutory creation and the state may take that right away Day [3] ˆ   New View: The government cannot completely eliminate the right to transfer property at death
Hodel v Irving [3] (1987)—retreat from position that Congress can give and Congress can take away. Now right to transmit property at death is extremely protected.
ˆ   Rule: The right to dispose of property through intestacy or will is a fundamental property right and cannot be abolished. However, some changes/adjustments to the law can be made (in Hodel the legislation just went too far)
— De minimus adjustments are ok
ˆ   Facts: Indian land was being fractionated through wills and intestacy. Government passed a law that said that could not devise nor descend property that was a certain size, and upon death it would escheat to the state.
ˆ   Issue: Whether the government can curtail inheritance laws to make it impossible for people to pass on their property—so basically abolish the ability to pass property on at death.
ˆ   Forced Succession: everywhere but Louisiana if you want to disinherit your children you can
— Descend = you don’t have a will
— Devise = you do have a will
Shaw Family Archives v. CMG Worldwide: 10 (2007)
ˆ   Facts: Residuary clause (everything not mentioned goes here. A well drafted will will always have one) in Marilyn Monroe’s will it creates a problem with regard to post mortem publicity rights revenues. Target in Indiana sold a T-shirt with MM’s image on it. Indiana had passed a right of post mortem publicity right act that said that the celebrity could sue in Indiana regardless of whether the suit was any connection to celebrity. Monroe had no connection with Indiana.
ˆ   P: asserts that the Strasberg successors have right to the MM imaged due to the postmortem right of publicity that was devised though the residuary clause of MM’s will and that D’s use of the image violates its rights under Indiana’s 1994 Right of Publicity Act.
ˆ   D: say that it is not a postmortem right of publicity bc they owned the actual property (the photograph) at the time fo MM’s dealth not MM.
ˆ   H: MM could not devise by will property rights she did not own a the time of death.
— In CA w/ MM resided: the code required post mortem transfers of publicity rights to be done through contract, and if not done this way it passes to her heirs.
ˆ   UPC: 2-603 The uniform probate code did not apply in IN, CA or NY , but if it did it allows the deceased to transfer property post mortem
The Policy Of Passing Wealth At Death [16] ˆ   You always look to the law at the time of death.
— Otherwise people could keep estates open as long as they want
— This keeps people from being able to sue bc will law had changed then
The Dead Hand [27] A person (Testator) who controls how the inheritance is dispersed long after he is dead. A dead hand that controls can be a problem when circumstances change, and t

not marry an African American is not allowed)
— Creditor’s Rights: May not be able to give away something that a creditor has a right in
— Illegal Activity: Cannot encourage illegal activity
Shapira v. Union National Bank (1974)
ˆ   Facts: Shapira leaves inheritance to children on condition that they marry a Jewish girl within seven years. Daughter already married, so sons are the ones at issue and suing.
ˆ   Held:
— Constitutional issue: No constitutional protection. Although you have constitutional right to marry, you can also disinherit a child, so this is a restriction on inheritance, which the divisor can do. It is okay to have a partial restraint on marriage through the vehicle of a will as long as it is reasonable. So, can have a partial restraint on marriage based on religion in will for inheritance.
¡ Courts are not being asked to keep him from marrying a Jewish girl, which would be a full restraint.
— Public Policy
ˆ   When Someone Dies
— 1) Find their attorney to see if they have a will.
— 2) Find out who the executor is.
— 3) Find out what her property is and where it is.
¡ Track down employers
¡ Track down bank accounts
— 4) Find her creditors including taxes that must be paid out of assets.