Intestancy -- the freedom of disposition; restraints on marriage;residuary clause, spousal intestate share, order of death

Question 1

what is an heir

Answer 1

Refers to someone who takes your property through INTESTACY

Question 2

what is the default plan for your stuff

Answer 2

intestacy

Question 3

what is the key takeaway from Lambeff
FACTS
The deceased married the P’s mother, but they separated
The deceased got remarried and had his two sons
Issue of who the trust belongs to
WILL LANG
The will directed that upon payment of debts the whole estate should be held in trust for the two sons in equal shares
ISSUE
Who’s claim succeeds?

Answer 3

Under Australian law, where a parent’s will leaves his child without adequate provision for proper advancement in life, the court may award the child a part of the decedent parent’s estate that the court determines to be appropriate.

Question 4

what is the freedom of disposition?

Answer 4

Property owners have the nearly unrestricted right to dispose of their property as they please

American law does not grant courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his or her property

Question 5

why did we study the lambert case even though it was an austriallian case

Answer 5

Lambeff is what most of the world does – ie giving property owners a say but it can be second guessed by the court
In the united states, the PROPERTY OWNER has almost unfettered freedom to decide

Question 6

what is the american law of sucession

Answer 6

Individual property owners are the best to make decisions about how to divide up their property

Question 7

whats the policy reason behind freedom of disposition

Answer 7

EFFICIENCY: we won’t have to argue if there is a bright line rule of freedom to do what you want with your property (saving the court time and estate resources)

Just and wise succession – maximize social utility–Property owners value this freedom and if we take it away, the value of owning property decreases

Question 8

what is the main function of the law in wills trusts and estates

Answer 8

The main function of the law is to facilitate rather than regulate

Question 9

when do we put limits on the freedom of disposition

what are examples

Answer 9

only to the extent that the donor attempts to make a disposition or achieve a purpose that is prohibited or restricted by an overriding rule of law

You cant disinhert children, spouses, you can’t encourage divorce, incentive crime, can’t create perpetuities, can’t really avoid creditors either

Question 10

what is the key takeaway from Shapira (partial restraint on marriage)

“in the event that at the time of my death he is not married, then his share shall be held by the executor for no longer than 7 years, and IF he gets married within those seven years to a Jewish girl, he will get his share.

Is the condition valid under the constitution and public policy?

Answer 10

Father can do this unless there is an overriding rule of law – via the restatement

Question 11

what does the restatment say about restraints on marriage

Answer 11

they are allowed unless the marriage descried is so broad as it unreasonably limits the transferee’s opportunity to marry

Question 12

via the restatement section on restraints on marriage, what does it mean for a codtion to unreasonly limit the transferee’s opportunity to marry

Answer 12

if a marriage permitted by the restraint is not likely to occur. The likelihood of marriage is a factual question, to be answered from the circumstances of the particular case.”

Question 13

via the restatement, what happens if a provision is unnecessarily punitive or unreasonably intrusive into significant personal decisions or interests

Answer 13

the provision may be invalid.

Question 14

What concrete facts go into the reasonableness of restraints on marriage?

Answer 14

How restrictive is the condition(ie how many potential spouse will fulfill the condition)
Temporal - do you have enough time to fulfill the condition?

Question 15

what is intestancy

Answer 15

Statutory default estate plan in the absence of a will.

Question 16

what is a will

Answer 16

Formal document in which the decedent expresses her intended estate plan.

Question 17

what is a will substitute

Answer 17

Functional equivalent of a will but property does not pass through probate.

Question 18

what happens if a condition violates public policy or the restatement?

Answer 18

You would strike the condition! Its the condition that would violate public policy, not the bequest

Question 19

An unnecessary punitive provision will not stand even under the freedom of disposition

– how do you tell if a provision is punative

Answer 19

Look at the motives! Are they being PUNITIVE or is a part of a deliberate estate plan

Question 20

what are the three ways to exercise your freedom of disposition

Answer 20

intestacy, will, will substitute

Question 21

what assumption does intestacy operate under

Answer 21

assuming what most people would want

Question 22

what is the only mechanism where an person can AFFIRMATIVELY COMMUNICATE what they want

Answer 22

a will

Question 23

which method of excersing your freedom of dispostion doest pass through the probate system

Answer 23

will substitute

Question 24

in intestancy, how does the decdent’s estate get distributed

Answer 24

through intestancy to their heirs

Question 25

in partial intestancy,how does the decdent’s estate get distributed

Answer 25

through intestancy to their heirs

through the will to the beneficaries

Question 26

in testacy, how does the decdent’s estate get distributed

Answer 26

through the will to the beneficiaries

Question 27

what is the residuary clause
“All of the rest, residue, and remainder of my estate”

Answer 27

a catch all provision
specifies how to distribute any remaining assets after debts, taxes, and specific gifts have been paid.

It’s how you avoid intestacy

Question 28

what does a person’s familial tell us

Answer 28

tells us the probable intent of the decedent
Considered the best evidence of what they wanted absent an affirmative declaration of what the decedent wants

Question 29

Surviving Spouse
No Surviving Descendants
No Surviving Parents

under the upc and non upc where does the intestate share go

Answer 29

upc -All to Surviving Spouse

non upc –In a minority of states, Surviving Spouse shares with Siblings.

Question 30

Surviving Spouse
and the decdent and surviving spouse shared children

under the upc and non upc where does the intestate share go

Answer 30

upc -All to Surviving Spouse

non upc–In most states, Surviving Spouse receives at least 50% of the estate with Surviving Descendants taking the remainder.

Question 31

the decedent had stepchildren and left a surviving spouse

under the upc and non upc where does the intestate share go

Answer 31

upc–$225k plus 50% of remainder to Surviving Spouse (UPC § 2-102(3))
Remainder to Surviving Descendants (step kids dont get anything under the upc)

non-upc–In most states, Surviving Spouse receives at least 50% of the estate with Surviving Descendants taking the remainder.

Question 32

Surviving Spouse
and the surviving spouse had step children
under the upc and non upc where does the intestate share go

Answer 32

upc-$150k plus 50% of remainder to Surviving Spouse (UPC § 2-102(4))
Remainder to Surviving Descendants

non-upc. In most states, Surviving Spouse receives at least 50% of the estate with Surviving Descendants taking the remainder.

Question 33

Surviving Spouse
No Surviving Descendants
Surviving Parents

under the upc and non upc where does the intestate share go

Answer 33

upc–$300k plus 75% of remainder to Surviving Spouse (UPC § 2-102(2))
Remainder to Surviving Parents

non upc – In about half of the states, Surviving Spouse shares with Surviving Parents.

Question 34

what is the key takeaway from Janus (application of the pre ammendment USDA)

Issue of the order of death of a husband and wife who died after taking Tylenol that had been laced

After their death, the family was fighting over the proceeds from the husbands 100k life insurance policy

The husband had named the wife as the primary beneficiary and his mother as the contingent beneficiary

Answer 34

Under the USDA, if there was sufficient evidence that the wife survived the husband, the proceeds would be paid to her estate and then would pass by intestacy to her family

if there is no sufficient evidence of the order of deaths, each of the two simultaneously dying persons was deemed to have predeceased each other, so neither inherited from the other

Question 35

what does the ammended USDA / UPC 2-104 say (ie the one you should apply on the exam) PLEASE CHECK

Answer 35

“An individual . . . who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual . . . survived the decedent by 120 hours, it is deemed that the individual failed to survive the required period.”

A claimant must establish survivorship by 120 hours by clear and convincing evidence

Question 36

the 120 hour rule in the post usda ammendent is what kind of rule

Answer 36

the DEFAULT RULE, but if the decedent wants another rule, they can include an order of death provision in the will

“Survive me for a period of thirty days following the date of my death” —Decedents intend for the beneficiaries to enjoy their gifts – ie more opportunity for the person to die

Question 37

what is the goal of intestancy

Answer 37

to carry out the probable intent (what do we think they would have wanted)

Question 38

why is simultaneous death an issue

Answer 38

because Everyone who benefits from a decedent’s estate must survive the decedent