Freedom of Disposition Flashcards
Justifications for Freedom of Disposition
▪ Labored for the stuff we acquired in life, should be able to decide who gets it next
▪ Desire to provide for future generations
Alternative to Disposition
Escheat
Escheat
Escheat – Property goes back to the estate after one dies
Dead Hand
Want to prevent the dead from controlling our use
Posthumously Acquired Property Rights
Rights which develop/Property which is acquired after the person is dead
What property rights does one have when they die/what can they devise?
Depends on law of that State
Intestate
Dies without a will
Inter Vivos Trust
Created While living
Testamentary Trust
Arises after death
Pros to Probate
debt, serves to put creditors on notice
Cons to Probate
time, cost, publicity
What MUST go into Probate
Real Property
Assets that can be placed in non-probate Will:
• Life Insurance
o Separate contract outside the will
• Bank Accounts
• Mutual Funds
• Joint Tenancies With Right of Survivorship
o No rights at death, your rights do not pass to anyone
• Inter Vivos Trust
Personal Representation with a Will is called:
Executor
Personal Representation without a Will is called:
Administrator
Choice of Law for Probate
o The applicable law is that of the jurisdiction in which you are domiciled at the time of death
o When you have real property in another jurisdiction ancillary probate is required
To whom does an attorney owe a responsibility?
▪ There is a duty owed to those who are in privity to the contract
▪ Due to the foreseeability of injury to the intended beneficiary, the duty runs to the intended beneficiary as well
