Bars to Succession

Question 1

Enslaved Persons

Answer 1

Previously considered property, could not inherit

Question 2

Being an undocumented immigrant?

Answer 2

Common Law: NO

UPC 2-111: May inherit.

Question 3

Minor?

Answer 3

Not a bar - but lack legal control, have to have an adult watch over their property

Question 4

Guardianship of the property (supervision of minor estate)

Answer 4

Feudal times, guardian took possession of the ward’s lands, relationship is still subject to extensive judicial supervision

Question 5

Conservatorship (supervision of minor property)

Answer 5

Similar investment power to those of trustees, more flexible than guardianship

Question 6

Custodianship (supervision of minor property)

Answer 6

Given property to hold for the benefit of the minor under uniform acts

Question 7

Trust (supervision of minor property)

Answer 7

Trustee holds property for the benefit of the child beneficiary (flexible and customizable)

Question 8

Transfer of Expectancy (def.)

Answer 8

Person barred from taking because the person has transferred the right by the assignment

Question 9

Transfer of Expectancy (common law v. equity)

Answer 9

Common law: an expectancy is NOT property

In equity: many states enforce a purported transfer and require the purported transferee have given FAIR CONSIDERATION for the expectancy

Question 10

Disclaimer

Answer 10

When a successor renounces or disclaims a devolved interest after the death of the decedent

Question 11

Disclaimer UPC Code

Answer 11

2-1105

Question 12

What is the disclaimed interest?

Answer 12

Passes as if the disclaimer died immediately before the time of the distribution of interest

Question 13

Why disclaim? (Intestate)

Answer 13

Under some statutes, the disclaimer can change the shares of successor families under intestate succession

Question 14

Why disclaim (taxes)

Answer 14

Reduces taxes (allowed)
DOES CREATE POTENTIAL MALPRACTICE if the lawyer fails to tell the client about it or fails to elect in time under federal/state law

Question 15

Why disclaim? (Creditors)

Answer 15

Avoid the claims for heir’s (devisee’s) creditors
(allowed in most states, some creditors can sneak around this)

Question 16

Drye v. United States

Answer 16

IRS can reach disclaimed assets to pay taxes owed by the disclaimant

IRC 6321: “unpaid amount shall be a lien in favor of the U.S. on all property or property rights belonging to such person”

AR law: never touched the defendant, BUT the USSC said that this was a right to the defendant

Question 17

How do disclaimed/renounced inheritances and properties reach their heir?

Answer 17

1. disclaimed interests are not listed within the exemptions from the levy
2. disclaimed interest did have some control over where the property goes
3. Renounced v. Disclaimer (Disclaim never reach because a gift is not completed until acceptance, and renounced do reach for a moment)
4. All states get equal treatment under IRC, regardless of how other creditors are treated

Question 18

Refusing to support minor decedent

Answer 18

Would bar succession under UPC 2-114 - when a parent whose parental rights were or could have been terminated for lack of support cannot inherit from the child

Question 19

Living in a state of adultery

Answer 19

Can be enough to bar succession

Question 20

Matter in Estate of Phelps

Answer 20

Kids say the mom cannot take personalty because she was living in adultery, but the court says this statute is ambiguous and she can take

Question 21

Killing the decedent

Answer 21

Can bar from succession

Question 22

Mahoney

Answer 22

Vermont did not have a statute that barred murder from inheritance held a constructive trust could in turn be imposed on inheritance

Question 23

Preston v. Chabot

Answer 23

Both have a T/E, no current statute about killing the decedent

No inheritance by the T/E, allowing constructive trust again to get around the killer, the killer gets half

Avoids judicial law-making - make a trust instead, the legislature cannot stop because they like the court to do it

Question 24

Murdering the Decedent (UPC)

Answer 24

UPC 2-803:
B) intestate estate passes as if the killer is disclaimed
C(1) revoke dispositions under governing instruments (wills + trusts)
C(2) sever interests with rights of survivorship making T/C

Question 25

What killers are barred?

Answer 25

UPC 2-803(G) - if the killing is both felonious and intentional (would be found criminally accountable under the preponderance of the evidence)

Question 26

Parts of the estate

Answer 26

Realty (not rights of survivorship and life estates)
Personalty (copyrights, physical things, leasehold, etc.)

Question 27

Does the law recognize the right to control images of dead persons? (Postmortem publicity rights)

Answer 27

Common law: No
States: unclear (CA + IN and twenty others do, with limits of 50, 70, 100 years)

Question 28

When do the ownership rights of the postmortem images start?

Answer 28

when it can be transferred to the estate

Question 29

Shaw

Answer 29

Marilyn Monroe publicity rights not owned by the testator at the time of death may not be devised by will

No ability to pass the rights

Assumes that there would be a possibility to transfer rights without a will (weird)

Adverse possession could come into play

Question 30

In re Estate of Braman

Answer 30

An estate would take new rights if the decedent never had the chance to have - would then go to the next in line

Question 31

Hecht v. Superior Court

Answer 31

Wife could use the zygotes because that was the intention of the decedent

Question 32

Estate of Kievernagel

Answer 32

INTESTATE SUCCESSION!!!!!!!!

IVF, gametes used and his parents won because the spouse could not prove intent