Decedents Outline Lewis (1)

Decedents Outline Lewis (1) - Decedents Outline Professor...

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Decedent’s Outline Professor Lewis Fall 2002 I. Introduction to Estate Planning a. The Power to Transmit Property at Death: Its Justification and Limitations i. The legal system developed to protect property of the individual during life 1. Originally there were no wills – property passed by intestate succession or descent to heirs of decedent 2. Later developed the principal that one could dispose of property at death ii. Testament – written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased – will iii. Until the 1980’, it was generally accepted that there was no constitutional protection to dispose of property at death iv. Hodel – Congress enacted a statue forbidding the passing on at death of small, undivided interests in Indian Lands 1. Court found that there was a taking w/o compensation of land 2. The government has considerable latitude in regulating property rights in ways that may adversely affect the owners 3. The court has been unable to develop any set formula for determining when justice and fairness require that economic injuries caused by public action be compensated by the government. It has examined the “taking” question by engaging in essentially ad hoc, factual inquiries that have identified several factors: a. Economic impact of the regulation b. Its interference with reasonable investment backed expectations c. The character of the governmental action 4. The right to pass on valuable property to one’s heirs is itself a valuable right 5. Case has been criticized b/c relied on cases regulating property – inappropriate material to reach the conclusion they did 6. Note: The right we are talking about here is the right to transmit property. There is NO right to inherit property – one can disinherit their children, even if minors. While a person must support their minor children while they are living, there is no requirement to do so once that person has died 7. Most states have detailed determination of what happens to property when a person dies w/o a will – Legislature has the power to change v. Pro’s and con’s of allowing disposition 1. Pro – incentive to earn money and leave to others – comfort 2. Con – Permit accumulation of wealth to pass – creates larger and larger inequities vi. A will is an ambulatory document which has absolutely no effect until you die vii. Condition on inheritance of both sons – both must marry a Jewish girl whose parents were Jewish 1. There is a distinction between carrying out instructions of a gift and enjoining a. Enjoining is a state action – cannot violate 14 th Amend b. Simply carrying out the wishes of the testator – not a state action 2. Religious restrictions will generally be upheld 3. There is a constitutional right to marry, but not a constitutional right not to marry 4. Public policy should not, and does not preclude the fulfillment of testator’s purpose, and that in accordance with the weight of authority in this country, the conditions
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This note was uploaded on 04/27/2010 for the course LAW 840 taught by Professor Tim during the Spring '10 term at University of Louisville.

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Decedents Outline Lewis (1) - Decedents Outline Professor...

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