< United States Law

United States Law/Trusts and Estates

Policy and Introduction

The field of trusts and estates is vitally important to all lawyers.

Whether in their own lives or as an advocate, every lawyer will come into contact with the estate system. For students who go into this field, attorneys will plan, draft, and advise clients on the administration of wills and trusts. Practitioners who specialize in this field can expect to develop significant substantive experience in the complexities of estate planning, including the intricacies of state and federal wealth transfer taxation (i.e., gift, estate, and generation-skipping transfer (GST) taxation). Many estate planning practitioners go on to additional study in Master of Laws programs (LL.M.s) in taxation.

In the United States, the intent of an estate planning attorney is to ensure their client's intent is carried out after the client is incapacitated or dead.

[The U.S.] structureof substantive and procedural rules [regarding estate and trusts] rests on one basic premise. In a capitalistic system based on the institution of private property, individual owners enjoy remarkably broad freedom to dispose of their property in accordance with their own wishes, no matter how wise or foolish. For the most part, statutes and cases in the field aim to discover the true intent of the property owner, not to thwart it, but to give it effect.[1]

The economical, psychological, sociological, and political implications for wealth transfer in this country are immensely important topics, but beyond the scope of this course. Additionally, although a brief introduction into the federal taxation of wealth transfers is discussed, the specifics and intricacies of the federal Internal Revenue Code are not evaluated in detail and are better to left to a course in federal estate and gift taxation.

The inequality of income and wealth within the United States has been steadily growing. Correspondingly, the subject of inequality has been an increasing focus for research in recent years. The sources, status, and projections of wealth inequality in the country have been fiercely debated.

Testamentary Freedom and "Dead Hand" Control


Policy Limitations on Testamentary Freedom


Estate of Shapira v. Union National Bank (Ohio Ct. C.P. 1974)

Ohio Court of Common Pleas, Mahoning County, Probate Division
N.E.2d 825, 39 Ohio Misc. 28, 66 Ohio Op. 2d (O.O.2d) 268
January 22, 1947


Intestacy

Introduction

The Uniform Probate Code (UPC) Approach

The Restatement (3rd) Approach

Specific State Approaches

Wills and Testacy

Testamentary Capacity and Contests

Will Formalities

Construction and Interpretation

Probate Administration

Nonprobate Transfers

Nonprobate Assets

Nonprobate Contractual Devices

Spousal and Familial Protections

Spousal Protections

Dower and Curtsey

Community Property Protections

Omitted Spouse Protections

The Elective Share

The Augmented Estate

Descendant Protections

Omitted Child Protections

The Legitime System and Other Protections

Trusts

Creation of Trusts

Construction and Interpretation

Trust Administration

Alienation, Modification, and Termination

Charitable Purposes and the Cy Pres Doctrine

Specific Property Interests

Future Interests

Future Interests in Property

The Rule Against Perpetuities

Powers of Appointment

Fundamentals of the Taxation of Wealth Transfers

References

  1. ↑ Ascher, Mark L.; Clark, Elias; McCouch, Grayson M.P.; Murphy, Arthur W. (2013), Cases and Materials on Gratuitous Transfers (6th ed.), West Publishing Co., p. 1
This article is issued from Wikiversity. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.