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Wills and Estates

Essay by   •  April 4, 2011  •  Research Paper  •  7,252 Words (30 Pages)  •  2,124 Views

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Wills & Estates Outline


I. Right to transfer property at death

A. Until 1980s, there was no natural or constitutional right to convey or inherit property at death

1. Hodel v. Irving (1987): court finds that right to transmit property at death is a valuable property right

2. Minority view until 1980s (Locke's view) is that it is a natural right to convey and inherit property

B. Dead Hand Ð'- allowing testator to control actions/behavior of beneficiaries by conditioning the gift on certain conditions

1. Rule: Donor's intention is to be given effect unless the intention violates public policy, is illegal, promotes waste

a. Dead hand control not upheld when:

1. It disrupts family relationships

2. It promotes waste (unless there is a good justification)

b. American courts don't review the reasonableness or wisdom of testator

2. Argument against dead hand control is that circumstances change

II. Probate

A. 5 functions of Probate

1. Collect and inventory of property of decedent

2. Administrator manages property during process of administration

3. Receive and pay claims of creditors (notified by letter or newspapers)

4. Remaining assets are distributed

a. if intestate, assets are generally distributed to (it varies from state to state)

1. spouse

2. children

3. parents

4. collateral relatives: aunts, uncles, cousins, etc.

5. Court excuses personal representative when estate is closed

B. Not all assets are subject to probate:

1. Joint tenancy

2. Insurance proceeds to beneficiary

3. POD contracts

4. Trusts

C. Uniform Probate Code

1. adopted in whole or part by 39 or 40 states

2. Process under Uniform Probate Code

a. Decedent dies

b. Someone interested in the estate files an application for probate to the court

c. Probate is opened either formally or informally

d. After rep appointed successfully, estate opened

e. Close estate

III. Attorney's Duty to Beneficiaries

A. Generally, you can't bring a contract or tort claim unless you are a party to the contract

1. Exception: third party beneficiaries

a. Attorneys owe a duty to intended beneficiaries of wills, so the beneficiaries have a cause of action in contract and tort

B. Probate court v. Civil court (action against negligent attorney)

1. Probate court: limited to finding what the testator probably meant (not actually meant)

a. Looks at the face of the will for intent

b. Can only look at extrinsic evidence if will ambiguous

2. Civil court: the issue was the actual intent of the testator

a. External evidence is relevant here

C. Intergenerational Representation

1. Attorney often owes a fiduciary duty to members of the same family based on their prior and existing attorney/client relationship

a. This means attorney can't be a party to deceit on the party of one family member against another

2. Problem is that interests of different family members to not always align


I. Purpose and Definitions

A. 2 Functions of intestacy:

1. Provides a statutory will for persons who die without one

2. Disposes of property not disposed of by a person's will (partial intestacy)

B. Heir vs. devisee

1. Heir: taker of the intestate property

a. heirs expectant: persons who will be your heirs when you die (a living person can't have an heir)

2. Devisee: person who takes property under a will

II. Share of Spouse

A. UPC 2-102 (p. 61)Ð'--surviving spouse gets:

1. (1) Everything, if

a. decedent didn't have any living parents or children (children = descendants), or

b. all of decedent's living children are also the surviving spouse's children AND surviving spouse has no other living children

2. (2) $200K plus Ð'Ñ* of everything else, if

a. decedent doesn't have living children but has living parents

3. (3) $150K plus Ð'Ð... of everything else, if

a. all of decedent's living children are also surviving spouse's children AND surviving spouse has children who are not the decedent's

4. (4) $100K plus Ð'Ð... of everything else, if

a. decedent has one or more living children who are not children of the surviving spouse

b. gives less to surviving spouse if there are other descendants



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