Wills & Trusts- Fall 2006- Piede

Wills & Trusts- Fall 2006- Piede - Foundation -...

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Foundation - Inheritance and its limitations o The right to dispose of property at death a civil, not a natural right Could be abolished/not constitutionally protected – Irving Trust o Unjust takings forbidden Even small amounts – Hodel v. Irving (Indian case) o Partial restraints on marriage permissible Marriage is constitutionally protected OK to condition inheritance on marriage, if reasonable Can’t violate public policy, i.e. forbid marriage Restricting religion of person one marries OK – Shapira - The Probate Process Offer will for probate/open estate Primary or domiciliary jurisdiction – where decedent was domiciled at death Anciliary jurisdiction – if property is located in another jurisdiction Collect decedent’s assets Court supervises representative’s actions Paying family allowances – homestead and exempt personal property Pay creditors and taxes Distribute assets upon probate court decree o Executor, administrator Executor – personal representative named in a will Administrator – personal rep appointed by a court
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Intestacy Spouse (S) Children (Ch) Ancestors (An) Only S* 100% -- -- S and Ch* 1/3 or ½ Remaining -- S and Ch – UPC $100K + 50% of remaining 50% of remaining Only Ch* -- 100% -- Only An -- -- 100% * is the same even if Ancestors are living (An only get if no S or Ch) Surviving Spouse and Descendants - If S only, S generally gets all o CL – if survived by parent, S gets 50%, parent gets 50% - If S and D’s, S generally gets 1/3 to ½ and D’s get rest - Descendant Shares o Generally, the first gen from T that has at least one living person is considered. All the children in that generation receive an equal share, and if some are dead, it goes to the grandchildren What if dead and no heirs – no share or to state? E.g., if all T’s children dead, each grandchild gets and equal share E.g. if 2 children, one dead, living child gets a share and dead child’s share distributed among his children o Sometimes, always to first generation, even if all dead - Distribution o Per capita – divided equally among living and dead at first generation where there is a living descendant o Per stripes – divided equally among first generation, whether living or all dead - Simultaneous death of spouse o Must be shown by a preponderance of the evid that one spouse outlived the other CL – millisecond UPC/modern – 120 hours o If simultaneous, as if neither survived (check this) - What children count? o Posthumous Even if in frozen sperm (maybe with consent of donor to have children with it?) o Adopted children count It is treated as though it were natural parent But adopted child loses rights from biological parents Justification: adopted children shouldn’t have more rights o Equitable adoption Parent fails to perform adoption agreement Maybe estoppel elements?
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Child can have right to parents’ estate, but parents can’t
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Wills & Trusts- Fall 2006- Piede - Foundation -...

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