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Wills and Estates Wills & Estates Outline INTRODUCTION I. Right to transfer property at death A. Until 1980s, there was no natural or constitutional right to convey
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Wills & Estates Outline
INTRODUCTION
I. Right to transfer property at death
A. Until 1980s, there was no natural or constitutional right to convey or inherit property at death
1. Hodel v. Irving (1987): court finds that right to transmit property at death is a valuable property right
2. Minority view until 1980s (Locke's view) is that it is a natural right to convey and inherit property
B. Dead Hand allowing testator to control actions/behavior of beneficiaries by conditioning the gift on certain conditions
1. Rule: Donor's intention is to be given effect unless the intention violates public policy, is illegal, promotes waste
a. Dead hand control not upheld when:
1. It disrupts family relationships
2. It promotes waste (unless there is a good justification)
b. American courts don't review the reasonableness or wisdom of testator
2. Argument against dead hand control is that circumstances change
II. Probate
A. 5 functions of Probate
1. Collect and inventory of property of decedent
2. Administrator manages property during process of administration
3. Receive and pay claims of creditors (notified by letter or newspapers)
4. Remaining assets are distributed
a. if intestate, assets are generally distributed to (it varies from state to state)
1. spouse
2. children
3. parents
4. collateral relatives: aunts, uncles, cousins, etc.
5. Court excuses personal representative when estate is closed
B. Not all assets are subject to probate:
1. Joint tenancy
2. Insurance proceeds to beneficiary
3. POD contracts
4. Trusts
C. Uniform Probate Code
1. adopted in whole or part by 39 or 40 states
2. Process under Uniform Probate Code
a. Decedent dies
b. Someone interested in the estate files an...
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