Trusts & Estates - TRUSTS ESTATES Fall 2005 i...

Info icon This preview shows pages 1–5. Sign up to view the full content.

View Full Document Right Arrow Icon
TRUSTS & ESTATES Fall 2005 i
Image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Image of page 2
I. INTRODUCTION A. Gratuitous Wealth Transmissions 1. intestate succession 2. wills 3. will substitutes (e.g. revocable trusts) 4. trusts (e.g. powers of appointment) B. Freedom of Disposition Principle 1. Definition : (a) broad freedom to dispose of property during lifetime or after death 2. Limitations : (a) elective share statutes (i.e. spouse has a non-barrable right to inheritance) (b) rule of perpetuities 3. Justifications : (a) natural right inherent to ownership, but Constitution rejects this (b) gratuitous transfers encourage saving and investment, which in turn generates productivity and creativity 4. Dilemma : (a) US political system traditionally maintains an anti-aristocracy ethic (i.e. no class distinctions), which conflicts with freedom of disposition 5. Constitutional Dimension : (a) Irving Trust Co. v. Day (1942) – there is no restriction on state’s powers to limit, condition or abolish freedom of disposition (i.e. not a natural right) (b) Hodel v. Irving (1987) – right of freedom of disposition is a US tradition so the complete abolition of both the devise and descent of property may be a taking C. Probate v. Non-Probate 1. Probate : (a) applies to transfer of property that has legal and substantive effect upon death (b) pertains to a legal procedure for validating a will and proving that decedent had legal and mental capacity, and that will was properly executed (c) judicially supervised estate administration 2. Non-Probate : (a) inter vivos transfers of some property interest that have legal effect during life, but only substantive effect at death (b) free from the legal machinery of liquidation and estate administration 3. Probate Systems : (a) wills (b) intestate succession 4. Non-Probate Systems : (a) life insurance (b) pensions (c) joint accounts (d) revocable trusts 5. Purpose of Probate : (a) obtain possession (b) clear title (c) satisfy creditors ( note : most creditors do not rely un probate, but agreements) 1
Image of page 3

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
6. Purpose of Non-Probate : (a) probate is time consuming and expensive (b) probate estate will be tied up before liquidation and distribution to transferees (c) involves significant court, personal representative and attorney fees 7. Identifying Non-Probate Assets : (a) anything with a right of survivorship is a non-probate asset (i) tenancy in common does not have right of survivorship (ii) joint tenancy and tenancy by entirety have rights of survivorship II. INTESTATE SUCCESSION A. Applicability 1. applies only to probate assets 2. applies only in absence of legally effective will or other legally effective probate- avoiding will substitute transaction (i.e. default rule ) B. Objective 1. to mimic the presumed intentions of a reasonable decedent, to look after the needs of surviving dependents, and to promote fairness C. Pattern of Distribution 1. by blood – first to spouse and descendants (adoptees), then to collateral relatives 2. sole means of defining the legal meaning of term “heir” D. Requirement of Survival 1. Generally : individual who predeceases decedent cannot qualify as an heir 2. Uniform Simultaneous Death Act (USDA)
Image of page 4
Image of page 5
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern