freedom of Testation Flashcards
(17 cards)
What is the general court stance on freedom of testation?
The court wants to uphold a testator’s desires for the distribution of their estate.
List two positives of freedom of testation.
- Inventiveness encourages people to earn, save, and write wills
- Wealthy individuals can allocate funds to charitable causes.
List one negative of freedom of testation.
concentration of wealth Major wealth inequality due to intergenerational wealth.
bc those who have wealth often get said wealth from well organized estate plans
Under what circumstances does the court generally intervene in property transfers?
When the transfer of property is difficult or impossible.
What is one reason for court intervention related to decedents imperfect information?
Information has changed since the crafting of the will, making the transfer impossible.
ex. donor puts 20K away to go to curing polio but polio is cured by the time he dies, reallocation is social beneficial, and in line with donor intent
What are negative externalities in the context of court intervention?
Striving for the most socially optimal circumstances in property transfers.
ex. if D has 10 million, and wife and kid have 0 mill without, the law will require some minimal level of support
What is one restriction on testation related to estate tax?
It is the biggest limitation on the ability to transfer, paid before any transfer is made.
Give one example of a transfer that may be against public policy.
Furthering a white nationalist group.
What does the Takings clause (5th Amendment) relate to?
It addresses limitations on testation as seen in cases like Irving Trust and Hodel.
What is the outcome of the Shapira trust case regarding the right to inherit?
There is no constitutional right to inherit; reasonable provisions can be upheld.
What are incentive trusts?
Typically okay, but there are limits on conditions placed on heirs.
Define a trust.
Distributes property to beneficiaries in accordance with its terms.
Define a will.
A way to pass probate property.
What is the difference between probate and non-probate property?
Probate property is passed via a will, while non-probate property is passed through legal methods that are not a will.
List six examples of non-probate property.
- Revocable inter vivos trust
- POD accounts
- Life insurance policy
- retirement accounts
*Joint tenancy
*gifts
What is probate property?
Anything passed via a will or that remains not classified as non-probate and will be passed intestate.
What are the holdings in irving and Hodel trust
Irving: State can do what they want constitution is not involved (40 years before Hodel)
Hodel: gives the legislation power to revoke either intestacy law or will law but not both (indicating the ultimate sentiment that freedom of testation matters)
