Ls - Wills And Trusts - Intestacy

Front 1

The constitution on wills and inheritance

Back 1

"Nothing in the constitution prohibits the legislature from limiting, conditioning or abolishing the power of testamentary disposition."

Front 2

Hodel v. Irving

Back 2

"States cannot abolish both descent and devise - thus there is a Constitutional right to inheritance in some fashion. To do away with both would be a “takings” in violation of the 5th Amendment. Thus, there seems to be a constitutional right to inheritance in some form."

Front 3

Mortmain statutes

Back 3

Cannot write a will that gives more than ½ of your assets to charity if you die within 3 months of making that will.

Front 4

Inheritance and Dead Hand Control over marriage

Back 4

"Shapira:– (P required to marry Jewish girl in 7 years in order to inherit.) Rule: A will provision that restricts the religious faith of the beneficiary is unconstitutional, but a will provision that one must marry within a particular religious group as a condition of receiving their inheritance is constitutional. Maddox v. Maddox – (Marry within the “society of friends” in was unreasonable because it was an exceptionally small group of people and thus operated as a virtual prohibition on marrying. "

Front 5

Three Situations Where Intestacy Arises

Back 5

"NO will, Will BUT NOT legally operable, Will legally operable BUT NOT all assets included in will"

Front 6

A negative will

Back 6

When people are expressly excluded from intestate succession.

Front 7

Surviving Spouse share under the UPC

Back 7

"1) No descendants or parents OR all descendants are children of spouse & deceased: The spouse gets all. 2) If parent survives: the surviving spouse gets 300K plus ¾ of balance. 3) If surviving spouse has children with the decedent and other children (not from decedent) then spouse gets 225K plus ½ of the balance. His children take a direct share. 4) If decedent has his own children (not the spouses), then spouse gets 150K plus ½ of balance. 5) ½ of CP goes to surviving spouse."

Front 8

Simultaneous Death

Back 8

"Three approaches 1) Janus v. Tarasewicz held: ""Survivorship is a fact which must be proven by a preponderance of evidence by the party whose claim depends on the survivorship."" (Tylenol laced w/ cyanide - Wife outlived husband by showing of brain activity). 2) The Uniform Probate Code establishes that in order to inherit, there must be clear and convincing evidence that you survived that decedent by at least 120 hours. (California adopts UPC) 3) The Uniform Simultaneous Death Act has a similar 120 hour requirement, but allows for an exception if there is clear and convincing evidence that the inheritor survived the decedent, even if it was less than 120 hours."

Front 9

3 Systems of Inheritance by Representation for Descendents

Back 9

"Pure Per Stirpes, Modern Per Stirpes, Waggonerian or “per capita at each generation”/ UPC"

Front 10

Pure Per Stirpes (PPS)

Back 10

1) find living roots at 1st generation and divide the property equally into as many shares as there are living roots. 2) children represent their deceased parent and are moved into their parent’s position.

Front 11

Modern Per Stirpes (MPS)

Back 11

"California Approach: 1) if any children survive the decedent, the use Pure Per Stirpes. If no children survived the parent, then find the next generation with living roots and divide the property equally into as many shares as there are roots. Children of the deceased root represent their parent and are moved into their parent’s position."

Front 12

Waggonerian [UPC] Per capita at each generation

Back 12

1) find root where there is 1st living generation and divide the property equally into as many shares as there are roots 2) the money that is left over after distributing at that generation is put in a hotchpot 3) from the hotchpot equally divide at the next generation with roots 4) keep going until all shares are distributed.

Front 13

When can inheritance go to Ancestors and Collaterals? What are the four different approaches?

Back 13

"Only use if the decedent is not survived by a spouse, descendents, the states differ as to who is next in the line of succession. Four systems are: Parentelic, Limited Parentelic, Next of Kin, California Approach"

Front 14

Describe the Parentelic System

Back 14

"1) 1st parentelic is parents/decendents, 2nd parentelic is grandparents/decscendants, 3rd parentelic is great grandparents/decendants, 4th parentelic is great-great grandparents. 2) If you reach the 2nd parentelic, then split estate into moieties – ½ to maternal grandparents and half to paternal grandparents. 3) New moiety at the top of each parentelic."

Front 15

Limited Parentelic

Back 15

" (UPC) 1) property passes starting at top of 2nd Parentelic with Grandparents and down the Parentela to Grandparents’ descendents, but if there are no heirs found, the property escheats the state."

Front 16

Next of Kin

Back 16

"1) property passes to the closest in blood first, but if two heirs are of equal degree, then revert to Parentelic system to break the tie 2) to ascertain degree: count up (Parent=1, GP = 2, GGP = 3) from the decedent to nearest common ancestor of decedent and claimant AND THEN count down to the claimant from common ancestor."

Front 17

California System

Back 17

"Limited Parentelic, Then next of Kin (Tie for next of Kin is broken by parentelic). California extends intestate success to stepchildren, mother & fathers in law, brothers and sisters in law."

Front 18

Four Nonprobatable Properties

Back 18

1) property passing pursuant to a contract (life insurance/retirement plans) 2) intervivos trust property (not testamentary trust property) 3) property held with right of survivorship 4) property passing through power of appointment.

Front 19

Intestate Share of Surviving Spouse/Domestic Partner

Back 19

"1) With no will, surviving spouse takes all community property and quasi-community property. 2) Regarding the separate property a) if there are not descendents, parents or parent’s descendants, the spouse takes all Separate property b) if there is one child, descendants of 1 child, or parents or parents descendants, spouse takes ½ of Separate property c) If there is more than one child, 1 child + descendants of other children, the descendants of more than one child, then spouse takes 1/3 of separate property. NOTE: spouse is not penalized for having children that are not the decedents."

Front 20

What is a spouse?

Back 20

"Married, in midst of a divorce, or homosexual where Domestic Partnership is recognized."

Front 21

Posthumous Children

Back 21

"If a child is born w/in 280 (modernly, 300 days) after decedent’s death, there is a rebuttable presumption that the child is the decedent’s child."

Front 22

Woodward v. Commissioner of Social Security.

Back 22

"(Woman who has children 2years after husband’s death, wants Social Security benefits). Rule: Posthumously conceived children 1) Must have a genetic relationship. 2) Parent must have consented to pregnancy and support of child. 3) May be precluded by time limitations. Court considers Three interests: 1) Best interests of child 2) State’s interest in the orderly administration of estates 3) Reproductive rights of the genetic parent "

Front 23

California Rule regarding Posthumous children

Back 23

"A child conceived after death of decedent shall be deemed to have been born in the lifetime of the decedent if: 1) The decedent consented in a signed and dated writing 2) Within 4 months of the decedents death, notice of the possibility of a posthumous conception is served to the person in control of the estate AND 3) The child was in utero within 2 years of the decedents’ death and is NOT a clone."

Front 24

UPC Rules regarding posthumous children

Back 24

"Consent, signed writing, in utero not later than 36 months or born after 45 months."

Front 25

Restatement 3rd

Back 25

Must be born in a reasonable time after decedent’s death w/ circumstances indicating the decedent would have approved of the child’s right to inherit. Ex: artificial insemination w/ sperm

Front 26

Rules regarding adopted children at common law

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No inheritance for adopted children.

Front 27

Modern rules regarding adopted children

Back 27

1) Adoption severs all ties w/ natural parents. (child is reborn to new parent or into new family) 2)Adopted child inherits thru adopted parent. 3) Adopted parent inherits thru adopted child. 4) (from Hall v. Vallandigham) An adopted child cannot inherit from a natural parent or thru a natural parent by representation. Policy: adopted children do not get double inheritance. They lose their right to inherit from biological family at the time of adoption.

Front 28

UPC Rule regarding inheritance for adopted children from natural parents

Back 28

An adopted child can inherit from a natural parent or thru a natural parent by representation. Policy: encourage step-parent adoption

Front 29

State modification to UPC Rule regarding inheritance for adopted children from natural parents

Back 29

An adopted child can inherit from a natural parent or thru a natural parent by representation so long as natural parents were not divorced.

Front 30

Adoption of Adults: Reasons why people do it

Back 30

1) make sure will is probated (diffuses challenges b/c they would under intestacy anyway) 2) make them an heir in the absence of a will.

Front 31

Minary v. Citizen Fidelity B & T

Back 31

"Husband adopted wife so that she could take under his grandmother’s will. Rule: Adopting an adult for the purpose of bringing that person within the provisions of a pre-existing testamentary instrument, when that person was clearly not intended to be covered by the instrument, should not be permitted."

Front 32

Prohibited Beneficiaries

Back 32

"Slayers, Spouses who abandon, Parents who refuse to support children (UPC says if parental could have been terminated), no inheritance from elderly relatives that are abused by heirs."

Front 33

Slayers

Back 33

a) A slayer is deemed to predecease the victim. b) sufficient to be found civilly or criminally responsible. c) at CL - ability to inherit may depend on whether or not the killing was voluntary or involuntary (Mahoney case)

Front 34

Approaches to Slayers Inheriting

Back 34

1) Legal title retained by slayer in spite of his crime due to constitutional provision against corruption of blood 2) Title does not pass to slayer b/c no one is permitted to profit from his own wrong/crime. 3) Title passes to slayer but equity holds him to be a constructive trustee for his heirs. 4) Slayer’s children inherit by representation of deemed predeceased slayer. 5) California extends the bar to the killer’s children.

Front 35

Disclaiming inheritance

Back 35

"1) Treat the disclaimant as having died before the decedent, used to avoid paying taxes on inheritance. 2) Nine month time limit for disclaiming. Or after the donee reaches 21. 3) Discrediting can implicate other inheritance rules (stirpes, etc.) 4) IRS liens trump disclaimer: (Drye v. US) "