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Unformatted text preview: Decedents Estates Class Notes 1/8/03 See Future Interest Workbook by Makidisi 2 written assignments: Client Letter and Will I. Introduction Transmission of Property A. The Power to Transmit Property at Death: Its justifications and limitations 1. When discussing estates and wills with clients, you must keep a record, as your liability continues indefinitely. Write memos of confirmation to your client. 2. Thomas Jefferson stated that the deads property reverted to society. (not current view) 3. Is there a Constitutional right to dispose of property by will? a. Nothing forbids legislature or state to limit or abolish testamentary capacity b. We are a nation devoted to property, accumulation of wealth c. Never thought until the 1980s that it was protected by the Const. d. Every state has intestate sucession statutes which pass property w/out a will 4. Hodel v. Irving a. F: legislation divided Indian lands to the point of uselessness, thus new legislation was passed which made land revert back to the Tribe if less than deminimus even if the will said otherwise. Suit brought alleging taking. b. H: legislation was taking w/out just compensation b/c there was no de minimus b/c you dont look at income , but the value of the property itself. c. 3 tests applied: i. Economic impact: ct said it was not deminimus ii. Investment backed expectations: dubious factor in this case b/c there was no investment. Land was simply inherited. iii. Character of govt regulation : Ct said the character was extraordinary, and abolished the right to pass property on to ones heirs. Ct offended. (1) Use of intervivos transactions is not an adequate substitute for the right to dipose of property at death d. Arguably, this case could say that estate tax a taking. Does that make estate tax unconstitutional? e. Right protected: right of decedent , not the right to inherit UNLESS its given to you by statute (but no constitutional right) i. Ex: in US, spouses have right to inherit portion of estate of decedent. The only way to disinherit your spouse is to enter into an anti-nuptual K. 5. 3 ways to dispose of property at death. a. Will b. Intestate sucession c. Will substitutes (most widely used today): 2 categories: i. Intervivos Trust: provide for use of property during your life as well as after your death. Property here is not controlled by the will ii. Owning property as joint T w/ rights of survivorship. Must be property w/ title: real property, bank accounts, etc. At death of one T, other T takes ownership and will cannot change it. 6. Note 4: Statute was amended after Hodel was decided, but was subsequently found unconstitutional by the Babbit case b/c the statute permitted devise only among a very limited group....
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