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Wills Outline_CG - WILLS OUTLINE I Intro to Estate Planning...

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WILLS OUTLINE I. Intro to Estate Planning The power to transmit Property at death i. Historically it was generally accepted that the right to pass property at death was neither a natural right nor was it constitutionally protected ii. In Irving Trust Co. v. Day the SCOTUS said “Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction” iii. But, the SCOTUS reversed itself in Hodel v. Irving and held that the “escheat” provision of the Indian Land Consolidation Act of 1983 constituted an unconstitutional taking of decedent’s property without just compensation. The Dead Hand Problem i. To what extent should a person be able to use wealth to influence behavior after death? RESTATEMENT of WILLS §10.1 The controlling consideration in determining the meaning of a donative document is the donors intention. The donors intention is given effect to the maximum extent allowed by law. 1. Unless disallowed by law, the donors intention not only determines the meaning but also the effect of a donative document. Shapira v Union National Bank (what restrictions are there on a DEAD HAND?) Decedent wanted son to marry Jewish girl within 7 yrs to get $ there is a constitutional right to marry, but not triggered here because he can marry, he just wont get $: no total constraint of marriage Issue: 1) Is a partial restraint on marriage in a will a violation of the right to marry protected by the 14th AM? NO; 2) Is a partial restraint on marriage that imposes only reasonable restrictions valid and not contrary to public policy? YES there must be a reasonable latitude of choice the provision is not a bare forfeiture and Shapira demonstrated depth of his conviction: S’s prerogative to dispose his estate as he likes P has a constitutionally protected right to marry free from restrictive state legislative action. The right to receive property is a creature of the law and is not a constitutionally guaranteed right. (Claimed here that probate was state action; determined not to be the type to raise a federal claim. Nearly all actions have a state ‘action’ somewhere – it doesn’t make them state sanctioned actions. Gifts conditional on the beneficiary’s marrying within a particular religious class or faith are reasonable. Notes o Will or trust provision is INVALID if it intends to encourage disruption of a family relationship 1
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o To prevent children from divorcing and marrying a non Jew, you can leave the $ in trust (living and testamentary) ii. Provisions to provide in case of divorce are VALID Transfer of the Decedents Estate PROBATE vs. NON-PROBATE o Non-probate - property passing under an instrument other than a will which became effective before death The decedent had to have taken affirmative steps for the property to qualify as nonprobate property. Historically there were four types of arrangements that qualified as nonprobate:
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