Trust & Estates (w/ Critical Pass) Flashcards
What is freedom of disposition? Limitations?
Principle governing succession allowing people to dispose of their property the way they want to without dead hand control.
Freedom of disposition is not absolute as the law provides protections to spouses, creditors, and a handful of anti-dead hand public policy constraints such as RAP.
What are some examples of full restraints when it comes to succession?
Examples:
- Committing a crime/fraud or destroying property
- Marriage or force divorce
- Restricting gay marriage or marriage to another race likely voidable under Obergefell and Brown
What’s the main holding in Shapira?
Court held a condition to marry into a particular faith is reasonable and a partial restraint (not full). Additionally, there was no 14A/Loving violation because this was a restriction on inheritance, not who he can marry;
What’s the main holding in Hodel v. Irving?
Justice O’Connor opines that ability to pass property is a significant right, but not a fundamental right
What is the main holding in Shaw? Exception?
Testamentary disposition is controlled by the law in effect as the death.
California has amended its laws to recognize posthumous right of publicity that is deviseable at death.
What are the two most common professional responsibility issues in T&E?
(1) Duty of care owed to client’s intended beneficiaries, as well as the client
(2) Duties in representation of multiple persons within the same family
What is the majority/minority rule for duty of care owed to beneficiaries of client?
Majority Rule: lawyer has a duty of care to intended beneficiaries of donative transfers
Minority Rule: several states bar claims from intended beneficiaries due to lack of privity of K
What is the main holding and takeaway from Simpson v. Calivas?
Standard in determination whether the attorney has a duty to intended beneficiaries is whether there is a foreseeability of injury to the intended beneficiary
What is the main holding in A v. B?
Fraudulent behavior in a joint representation effecting a will can be disclosed.
Since the plaintiff was also a client of the law firm, she needed to know the existence of a illegitimate child because it would affect decisions of an estate plan.
What is intestate succession?
Intestate succession involves the distribution of a decedent’s assets who dies without a will.
What are the primary and secondary objectives of an intestacy statute?
Primary: carrying out the probable intent of the typical intestate decedent
Secondary: to protect the economic health of the decedent’s family
What’s the difference between a “heir” and a “beneficiary”
Heir: someone who takes via intestate succession
Beneficiary: someone who takes via a will or trust
What is a surviving spouse in terms of intestacy?
Surviving spouse is someone who is married at the time the decedent dies. Divorce or annulment nullifies this and that person would not be the surviving spouse.
How do intestacy laws typically deal with unmarried cohabiting partners?
Law is a bit mushy. Formal registries can be used to show committment, some states acknowledge common law marriage.
UCERA authorizes equitable relief for cohabiting partner upon temrination of a cohabitation including the death of a partner.
Australia/Canada use facts and circumstances test.
What are the two approaches to simultaneous death?
(1) USDA Approach: property passes as though the beneficiary/heir died before the decedent unless there is sufficient evidence the decedent died first (Janus)
(2) 120 Hour Rule (5 Days): beneficiary/heir only treated as surviving decedent if they survive 120 hours/5 days.
