Outline-Marcy 2001


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I. INTRODUCTION TO ESTATE PLANNING : A. The Power to Transmit Property at Death : Hodel vs. Irving : Holding - The escheat provision of the Indian Land Consolidation Act constituted an unconstitutional taking of decedent’s property without just compensation. Dead Hand : Dead head control arises where a decedent conditions a gift to the beneficiary upon a beneficiary behaving in a certain way. The decedent is attempting to Dead hands gifts are valid unless they violate public policy or judicial enforcement of the condition would constitute state action violating constitutionally protected fundamental rights. What are invalid conditions? 1) Absolute restraints on marriage o There can be partial restraints and there can be requirements that people marry within a certain amount of time and marry within the religion. Shapiro vs. Union National Bank : Holding - The gifts were valid because there can be a requirement to marry within in a reasonable amount of time and to marry within the religion. 2) Gifts that require a beneficiary to remain faithful to a particular religion 3) Gifts that encourage divorce or separation 4) Gifts that promote family strife 5) Where the beneficiary is directed to destroy property If a conditional gift violates public policy and is invalid, if there is a gift-over clause, it will go to the alternative beneficiary, and if there isn’t, it will go to the beneficiary without the imposition of the condition. B. Transfer of the Decedent’s Estate : 1. Non-Probate Property: -There are 4 types of Non-Probate property: 1) Joint Tenancy 2) Life Insurance 3) Legal life estates and remainders 4) Inter vivos trusts 2. Probate Property : Intestacy : The state of dying w/o a will. The state or condition of a person having died w/ o a valid will. Testacy: The fact or condition of leaving a valid will at one’s death. Intestate : The person who dies w/o a will. Of or relating to a person who has died w/o a valid will. Testator : The male who dies w/a will. A person who has made a will; esp. a person who dies leaving a will.
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Beneficiary : The person who benefits under a will. A person who is designated to benefit from an appointment, disposition, or assignment (as in a will, insurance policy, etc.) one designated to receive something as a result of a legal arrangement or instrument. Devisee : The person who receives real property. A recipient of property (usu. real property) by will. Devise : This is the verb for passing real estate to a person. The act of giving property (usu. real property) by will. Bequest : A gift of personal property. The act of giving property (usu. personal property) by will. Under Intestacy: Heirs : The people who take real property under intestacy (general term). A person who, under the laws of intestacy, is entitled to receive an intestate decedent’s property, esp. real property.
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This note was uploaded on 04/17/2008 for the course LAW ? taught by Professor Harmon during the Spring '08 term at Touro NY.

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