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To Sign On After You Have Enrolled. Http:// The Real Truth About Wealth Transfer. Today, most people pass their disposable tangible wealth to their children during life by education expenditures

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to sign on after you have enrolled
To Sign On After You Have Enrolled

the real truth about wealth transfer
The Real Truth About Wealth Transfer
  • Today, most people pass their disposabletangible wealth to their children during life by education expenditures
  • Today, most wealth passes outside of the probate system (not by will or inheritance)
    • Life insurance
    • Joint tenancy
    • Pensions
some trusts and estates terminology
Some Trusts and Estates Terminology
  • Will and trust
    • Execution
    • Proof
  • Testator/Testatrix
  • Personal Representative
    • Executor/Executrix/Administrator/Administratrix
  • Heir
  • Beneficiary
  • Settlor/Donor/Trustor
  • Probate
should intergenerational inheritance be permitted
Should intergenerational inheritance be permitted?
  • Inheritance is simply “natural and proper”
  • Best way to allocate resources at death—who can trust the “STATE”
  • Incentive for wealth holder to create, produce and work hard
  • Best way to assure younger generation will watch over the older generation as it ages
should intergenerational inheritance be permitted1
Should intergenerational inheritance be permitted?
  • Inequality of opportunity
  • Creates ideal class of undeserving persons
  • Merely rewards the “luck” of birth
  • Creates a society of “jealousy” and caste
mandatory inheritance
Mandatory inheritance
  • Should wealth holder be precluded from disinheriting their spouses?
  • Their children?
hodel v irving
Hodel v. Irving
  • What did the federal statute provide?
    • Fractional shares of Indian allotted land escheats to the tribe. Statute extinguished both the right to pass the land to one’s designee’s at death
  • What did the court hold?
    • Statute was an unconstitutional taking.
  • Did the federal scheme completely eliminate the right to transmit property at death?
    • Didn’t affect right to gift property during life outright or through use of a trust
  • Does court hold that states cannot alter the right to receive property as distinguished from right to transmit?
    • Could Congress provide that a decedent’s Indian’s heir was the Indian’s tribe?
  • What are the implications of this case for a confiscatory estate tax?
dead hand control
Dead Hand Control
  • To what extent should wealth holders be able to control the behavior of their descendants through testamentary conditions? Consider Shapira v. Union National Bank.
shapira v union national bank
Shapira v. Union National Bank
  • What are the facts of this case?
  • On what basis does son Daniel challenge the will?
  • What does court hold?
    • Judicial enforcement of provision in will not state action; therefore, not violative of US Constitution as it is merely private discrimination
  • Suppose the bequest to Daniel was conditioned on Daniel never marrying?
    • Partial vs. complete restraint
    • Daniel a son; not a spouse.
functions of probate
Functions of Probate
  • Title Proving
  • Title Clearing
  • Timing of probate
    • The five year rule
sample assets
Sample Assets
  • Household furniture and goods
  • Bank account (joint/individual)
  • Stocks and bonds (joint/individual)
sample assets1
Sample Assets
  • Life insurance policy
  • Automobile (joint/individual)
  • Real property
probating the will
Probating The Will
  • Petition
  • Affidavit of Witnesses (Self-proving; other)
  • Bond
  • Oath
  • Designation of the attorney
filing will with the court
Filing Will With the Court
  • Clerk’s Office
  • Letters testamentary
notice of probate
Notice of Probate
  • Notice of Probate (Notice to Creditors)
    • Once each week for two weeks
  • The Tulsa Case
  • Legislative Response
    • 4 months/1 month
      • Mail notice to known persons whose whereabouts are known
duties of the personal representative
Duties of the Personal Representative
  • Collect assets
  • Pay debts and expenses
  • Distribute balance to the distributees of the estate
debt collection
Debt Collection
  • Notice to creditors
  • Allowance by personal representative
  • Disallowance by personal representative
    • 20 days to file notice with the court
final report
Final Report
  • Three year rule
  • Waivable by court
  • Includes accounting unless waived
  • Affidavit re fees