Notes on Trusts and Estates Law

Topics: Will, Wills and trusts, Inheritance Pages: 76 (24793 words) Published: March 18, 2011
Trusts and Estates
Medilin Spring 2006

Intro and Intestacy

1) Power to Transmit property at death- Dead hand Control
a) Estate and gift taxes as method of restriction
i) redistributes some wealth and attempts to break up accumulations of large wealth ii) gift tax prevents the use of inter vivos transfers to get around inheritance restrictions iii) spousal deduction- can give as much as want to spouse during life and at death iv) charitable deduction- also allowed to give away at death and during life v) annual exclusion amount- amount that can give to as many people as you want with no taxable effect 1) could give up to $12,000 each to all your friends and nobody pays taxes b) Right to Inherit and Right to Convey

i) right to inherit recognized before right to devise
ii) laws regarding wills and such are totally creatures of local law iii) idea of letting property go to children has strong base in ideas of self preservation and preservation of your offspring iv) Irving Trust Co. v. Day- Supreme said that states controlled laws of inheritance and could do with them what they wanted v) more property in US passes by types of inter vivos transfers that serve the same function as wills- joint tenancy, gift of remainder interest, reserving a life estate c) Two main options for a persons belongings at death are either honoring their wishes or confiscation by the government d) Problem of the Dead Hand

i) if your restriction is trying to do a good thing then this will be looked at more kindly than a restriction for spite 1) normally ok to base restrictions on personal habits ii) when you do something with your property while you are alive you directly feel the affects of that but if you do it after death someone else feels the effect 1) being able to destroy something at death- arguments for and against a) society has great interest in keeping creations especially art b) individual has interest in protecting his possessions even if he wants to destroy them to do so 2) Professional Responsibility

a) lots of areas where conflicts of interest can arise
b) malpractice is big concern
c) Duty to Intended Beneficiaries- Majority make exception to general rules and hold that lawyer has duty to intended beneficiaries where clear who they are d) if you can't handle the matter with reasonable skill and care then need to refer client to a specialist i) if fail to refer or consult then you are held to standard of skill ordinarily possessed by specialist ii) if hold yourself out as having special skills then you will be judged based on the ordinary skill that such a specialist would have e) Conflicts of Interest

i) representing multiple family members is a common problem ii) ethical rules are clear that in litigation cannot represent both sides but do not clearly indicate how can represent husband and wife in will drafting iii) what do you do if husband and wife come to you to draft will, they say they both want to leave it to the other, then husband calls back later and says he wants to leave half to his secretary 1) what you do depends on whether representing together or separate- need to make clear at beginning 2) if you withdraw then wife will know that something is up but this may be best solution 3) best thing to do is deal with issue before it comes up a) based on Rule 1.7 need to disclose examples of problems that could come up and explain them to the couple b) need to talk about confidentiality arrangement i) can choose whether they will be able to tell you something in confidence or know that you will tell the other everything ii) best option is probably to tell them you will be a conduit and information will flow through you if it is material- have this agreement in writing c) probably also...
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