Essay About Court Finds And Minority View

Wills and Estates
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Wills & Estates Outline
INTRODUCTION
Right to transfer property at death
Until 1980s, there was no natural or constitutional right to convey or inherit property at death
Hodel v. Irving (1987): court finds that right to transmit property at death is a valuable property right
Minority view until 1980s (Lockes view) is that it is a natural right to convey and inherit property
Dead Hand Ð- allowing testator to control actions/behavior of beneficiaries by conditioning the gift on certain conditions
Rule: Donors intention is to be given effect unless the intention violates public policy, is illegal, promotes waste
Dead hand control not upheld when:
It disrupts family relationships
It promotes waste (unless there is a good justification)
American courts dont review the reasonableness or wisdom of testator
Argument against dead hand control is that circumstances change
Probate
5 functions of Probate
Collect and inventory of property of decedent
Administrator manages property during process of administration
Receive and pay claims of creditors (notified by letter or newspapers)
Remaining assets are distributed
if intestate, assets are generally distributed to (it varies from state to state)
spouse
children
parents
collateral relatives: aunts, uncles, cousins, etc.
Court excuses personal representative when estate is closed
Not all assets are subject to probate:
Joint tenancy
Insurance proceeds to beneficiary
POD contracts
Trusts
Uniform Probate Code
adopted in whole or part by 39 or 40 states
Process under Uniform Probate Code
Decedent dies
Someone interested in the estate files an application for probate to the court
Probate is opened either formally or informally
After rep appointed successfully, estate opened
Close estate
Attorneys Duty to Beneficiaries
Generally, you cant bring a contract or tort claim unless you are a party to the contract
Exception: third party beneficiaries
Attorneys owe a duty to intended beneficiaries of wills, so the beneficiaries have a cause of action in contract and tort
Probate court v. Civil court (action against negligent attorney)
Probate court: limited to finding what the testator probably meant (not actually meant)
Looks at the face of the will for intent
Can only look at extrinsic evidence if will ambiguous
Civil court: the issue was the actual intent of the testator
External evidence is relevant here
Intergenerational Representation
Attorney often owes a fiduciary duty to members of the same family based on their prior and existing attorney/client relationship
This means attorney cant be a party to deceit on the party of one family member against another
Problem is that interests of different family members to not always align
INTESTATE SUCCESSION
Purpose and Definitions
2 Functions of intestacy:
Provides a statutory will for persons who die without one
Disposes of property not disposed of by a persons will (partial intestacy)
Heir vs. devisee
Heir: taker of the intestate property
heirs expectant: persons who will be your heirs when you die (a living person cant have an heir)
Devisee: person who takes property under a will
Share of Spouse
UPC 2-102 (p. 61)Жsurviving spouse gets:
(1) Everything, if
decedent didnt have any living parents or children (children = descendants), or
all of decedents living children are also the surviving spouses children AND surviving spouse has no other living children
(2) $200K plus ÐÑ* of everything else, if
decedent doesnt have living children but has living parents
(3) $150K plus ÐÐ of everything else, if
all of decedents living children are also surviving spouses children AND surviving spouse has children who are not the decedents
(4) $100K plus ÐÐ of everything else, if
decedent has one or more living children who are not children of the surviving spouse
gives less to surviving spouse if there are other descendants