Bars to Succession Flashcards
Enslaved Persons
Previously considered property, could not inherit
Being an undocumented immigrant?
Common Law: NO
UPC 2-111: May inherit.
Minor?
Not a bar - but lack legal control, have to have an adult watch over their property
Guardianship of the property (supervision of minor estate)
Feudal times, guardian took possession of the ward’s lands, relationship is still subject to extensive judicial supervision
Conservatorship (supervision of minor property)
Similar investment power to those of trustees, more flexible than guardianship
Custodianship (supervision of minor property)
Given property to hold for the benefit of the minor under uniform acts
Trust (supervision of minor property)
Trustee holds property for the benefit of the child beneficiary (flexible and customizable)
Transfer of Expectancy (def.)
Person barred from taking because the person has transferred the right by the assignment
Transfer of Expectancy (common law v. equity)
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
Disclaimer
When a successor renounces or disclaims a devolved interest after the death of the decedent
Disclaimer UPC Code
2-1105
What is the disclaimed interest?
Passes as if the disclaimer died immediately before the time of the distribution of interest
Why disclaim? (Intestate)
Under some statutes, the disclaimer can change the shares of successor families under intestate succession
Why disclaim (taxes)
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
Why disclaim? (Creditors)
Avoid the claims for heir’s (devisee’s) creditors
(allowed in most states, some creditors can sneak around this)
Drye v. United States
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
How do disclaimed/renounced inheritances and properties reach their heir?
- disclaimed interests are not listed within the exemptions from the levy
- disclaimed interest did have some control over where the property goes
- Renounced v. Disclaimer (Disclaim never reach because a gift is not completed until acceptance, and renounced do reach for a moment)
- All states get equal treatment under IRC, regardless of how other creditors are treated
Refusing to support minor decedent
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
Living in a state of adultery
Can be enough to bar succession
Matter in Estate of Phelps
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
Killing the decedent
Can bar from succession
Mahoney
Vermont did not have a statute that barred murder from inheritance held a constructive trust could in turn be imposed on inheritance
Preston v. Chabot
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
Murdering the Decedent (UPC)
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
What killers are barred?
UPC 2-803(G) - if the killing is both felonious and intentional (would be found criminally accountable under the preponderance of the evidence)
Parts of the estate
Realty (not rights of survivorship and life estates)
Personalty (copyrights, physical things, leasehold, etc.)
Does the law recognize the right to control images of dead persons? (Postmortem publicity rights)
Common law: No
States: unclear (CA + IN and twenty others do, with limits of 50, 70, 100 years)
When do the ownership rights of the postmortem images start?
when it can be transferred to the estate
Shaw
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
In re Estate of Braman
An estate would take new rights if the decedent never had the chance to have - would then go to the next in line
Hecht v. Superior Court
Wife could use the zygotes because that was the intention of the decedent
Estate of Kievernagel
INTESTATE SUCCESSION!!!!!!!!
IVF, gametes used and his parents won because the spouse could not prove intent