Preface 13 results (showing 5 best matches)
- Our aim is to navigate between the two extremes. This book puts the law of estates, future interests, and powers of appointment into a nutshell, clarifying and explaining the law without oversimplification.
- It is fitting that the Nutshell Series includes
- The objective of this book is to help law students understand the law of estates, future interests, and powers of appointment. First-year students in Property and upper-year students in Wills and Trusts are the intended audience.
- ESTATES, FUTURE INTERESTS, AND POWERS OF APPOINTMENT
- In 2010, the American Law Institute approved the final chapters of the Restatement Third of Property: Wills and Other Donative Transfers (cited herein as the Restatement 3d of Property). These chapters contain a new approach to the classification of present and future interests and a reformulation of the Rule Against Perpetuities. Professor Waggoner was the Reporter for this Restatement, and Professor Gallanis served on the Members Consultative Group for it. We discuss the Restatement’s innovations in this Nutshell. See also the following articles:
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Chapter 13. Effectiveness of the Appointment 54 results (showing 5 best matches)
- A question that sometimes arises is whether the powerholder of a power of appointment must appoint the property absolutely (if land, in fee simple absolute) or whether the powerholder can create limited or future interests in the appointees. The answer is that, absent the donor’s manifested contrary intention, the powerholder may create limited or future interests in the appointees. See Uniform Powers of Appointment Act § 305; Restatement 3d of Property §§ 19.13, 19.14. Furthermore, if the power is a general power, the powerholder may create limited or future interests even where the donor has explicitly prohibited it, because attempting to enforce the prohibition would be useless; the powerholder could simply appoint to himself outright and then transfer an interest short of fee simple absolute. See Uniform Powers of Appointment Act § 305(a) and the accompanying Comment; Restatement 3d of Property §§ 19.13(a), 19.15 cmt. b.
- If a power is , the Uniform Powers of Appointment Act provides that, if the powerholder merely failed to exercise the power, the appointive property passes (1) to the powerholder if living and a permissible appointee, or (2) if the powerholder is an impermissible appointee or deceased, to the powerholder’s estate if the estate is a permissible appointee. However, if the powerholder released the power (or if there is no taker under the earlier provisions), the appointive property reverts to the donor (or the donor’s transferee or successor in interest). Uniform Powers of Appointment Act § 310(2). Accord, Restatement 3d of Property § 19.22. This approach contrasts with the earlier rule of the Restatement 2d of Property, which had simply provided that the appointive property reverts to the donor (or the donor’s successors in interest). See Restatement 2d of Property § 24.1.
- The Uniform Powers of Appointment Act and the Restatement 3d of Property adopt a “modern variation” of the capture doctrine. The ineffective exercise of a general power results in the property passing under the gift-in-default clause or, to the extent the gift-in-default clause is nonexistent or ineffective, to the powerholder (or the powerholder’s estate) if a permissible appointee; if not, the property reverts to the donor (or the donor’s successors in interest.) See Uniform Powers of Appointment Act § 309. Neither the Uniform Powers of Appointment Act nor the Restatement 3d conducts an inquiry into whether the powerholder manifested an intention to assume control of the property for all purposes. See, e.g., Restatement 3d of Property § 19.21.
- If a power is or if the appointment is , the Uniform Powers of Appointment Act and the Restatements 3d and 2d of Property provide that the appointive property passes to the permissible appointees of the power if they are a defined and limited class or, if not, it reverts to the donor (or the donor’s transferee or successor in interest). See Uniform Powers of Appointment Act §311(2); Restatement 3d of Property § 19.23; Restatement 2d of Property § 24.2. Two different theories are employed to reach this result. Some courts hold that the powerholder of a nongeneral power with a defined and limited class of permissible appointees has the duty to exercise the power, i.e., that the power is a power in trust (also called an imperative or mandatory power), and the court will not permit the permissible appointees to suffer by the negligence of the powerholder. Other courts imply a gift in default in favor of the permissible appointees. The Restatement 3d of Property and the Uniform Powers...
- The release of a nongeneral power of appointment causes the appointive property to pass under the gift-in-default clause or, if none or to the extent the clause is ineffective, to the permissible appointees if they are a defined and limited class or, if not, to revert to the donor (or the donor’s successors in interest). See Uniform Powers of Appointment Act § 311; Restatement 3d of Property § 19.23.
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Chapter 2. Classifying Possessory Estates (a.k.a. Present Interests) 83 results (showing 5 best matches)
- The hierarchy of possessory estates and future interests is a refined, artificial structure that took centuries to develop fully. If it had been designed in one fell swoop, the flexibility it provides estate planners and clients of today could readily be achieved with a system of much greater simplicity. Indeed, the American Law Institute has promulgated a simplified system of possessory estates and future interests in the Restatement 3d of Property. In this Nutshell, we cover both the traditional and the simplified systems.
- Classification means fixing the proper label or labels to a possessory estate or future interest. “Possessory estate” means an ownership interest in property granting the owner the current right to possession or enjoyment. “Future interest” means an ownership interest in property in which the right to possession or enjoyment is deferred until some time in the future; the future possession or enjoyment may or may not be certain to occur.
- This Nutshell follows modern practice in not using the words “and his heirs” in future interests. The hypotheticals read “to A for life, remainder to ” rather than “to A for life, remainder to and his heirs.” The words do appear in hypotheticals creating present interests in fee simple—“to A and his heirs so long as…”—even though they are not strictly required.
- Because a term of years is a nonfreehold estate (see § 2.2), a grant “to A for 10 years, then to ” was not characterized at common law as a term of years in A followed by a remainder in was characterized as owning the land in fee simple absolute subject to A’s term of years. Today, the distinction between freehold and nonfreehold estates has little continuing importance. Characterizing as owning the land subject to a term of years in A may still be appropriate in a commercial transaction, such as where , as landlord, leases the land to A, as tenant. In the setting of noncommercial transactions, however, the ancient characterization was abolished in the Restatement of Property § 156 cmt. e, which states in pertinent part: “The creation of a remainder in land does not require … that the estates preceding the future interest be freehold estates.” This
- fee simple subject to an executory limitation
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Chapter 12. Exercising a Power 33 results (showing 5 best matches)
- Under the minority view at common law, the Restatement 3d of Property, the Uniform Powers of Appointment Act, and the Uniform Probate Code, A has exercised the power of appointment. It is not necessary to reopen ’s estate to identify ’s successors in interest. Instead, the land passes at A’s death to
- The Uniform Powers of Appointment Act, the Uniform Probate Code, and the Restatement 3d of Property adopt a variation of the minority view. Under Uniform Powers of Appointment Act § 302(b), Uniform Probate Code § 2-608, and Restatement 3d of Property § 19.4, a general power is presumed exercised by a residuary clause, but only if the donor failed to create a gift in default of appointment (or, under the Uniform Powers of Appointment Act and the Restatement 3d of Property, if the donor provided a gift-in-default clause but the clause was ineffective). The aim is to avoid the appointive property returning to the donor’s estate, which would need to be reopened if, as is likely, the donor predeceased the powerholder.
- A powerholder’s substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if: (1) the powerholder knows of and intends to exercise the power; and (2) the powerholder’s manner of attempted exercise of the power does not impair a material purpose of the donor in imposing the requirement.
- A powerholder must manifest an intent to exercise a power in order for the power to be exercised. See Uniform Powers of Appointment Act § 301(2)(A); Restatement 3d of Property § 19.1(1). The recommended method for exercising a power of appointment is by a specific-exercise clause:
- transferred land “to A for life, then to such persons as A shall by will appoint, and in default of appointment, to .” Believing that there were people living in the trees on the land, A signed a will exercising the power of appointment in their favor so that they could be fed. No such tree-people existed.
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Chapter 14. Powers and the Rule Against Perpetuities 87 results (showing 5 best matches)
- If a general power would be presently exercisable but for the fact that its exercise is subject to a condition precedent, the power is treated by both the common-law Rule and the Uniform Rule as the equivalent of a property interest
- Under the common-law Rule, the validity of the appointed interests depends on whether A’s appointment was irrevocable. If A reserved a power to revoke the appointment, the appointed interests are deemed created at A’s death and are valid. If A’s appointment was irrevocable, however, the interests were created when the deed was delivered or otherwise became effective, and the remainder interest in A’s grandchildren is invalid.
- With the above background in mind, we can now consider how the Rule Against Perpetuities applies to powers of appointment. It is important to distinguish between the validity of the
- Analysis of the exercise of M’s power under the common-law Rule and the Uniform Rule
- In each Variation, the exercise of A’s power of appointment is valid under the Rule as reformulated in the Restatement 3d of Property. is considered to be the transferor. The interests in trust created by the exercise of A’s power will terminate at the death of the last surviving child of A. This is within the generations-based perpetuity period of the Restatement 3d of Property.
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Chapter 11. Who Owns the Appointive Property? 42 results (showing 5 best matches)
- The beneficial owner of an interest in property ordinarily has the power to transfer ownership interests in or confer powers of appointment over that property to or on others by probate or nonprobate transfer…. By contrast, a power of appointment traditionally confers the authority to designate recipients of beneficial ownership interests in or confer powers of appointment over property that the powerholder does not own.
- This statement is also true with respect to federal taxation. The application of federal tax laws to the various kinds of powers of appointment is complicated and beyond the scope of this Nutshell. The following is offered as a general summary. If the donor and powerholder are the same person, in other words the donor has reserved in himself a power of appointment, then federal tax laws treat the donor-powerholder as still owning the appointive property, irrespective of whether the power is general or nongeneral. If the donor and powerholder are not the same person, in other words the power was conferred upon the powerholder by another, federal tax laws treat the powerholder as the owner of the appointive property only if the power is general, not if the power is nongeneral.
- Even if the transfer was not in fraud of creditors, the appointive assets are typically subject to the claims of the donor-powerholder’s creditors if the reserved power is general. See Restatement 3d of Property § 22.2; see also Uniform Powers of Appointment Act § 501(d) (providing that the appointive property is subject to a claim of a creditor of: (1) the powerholder if the reserved power is general and presently exercisable and (2) the powerholder’s estate, to the extent the estate is insufficient and subject to the right of a decedent to direct the source from which liabilities are paid, if the power is general and exercisable at death). It makes no difference whether the debt was incurred before or after the transfer creating the power. See Restatement 3d of Property § 22.2 cmt. a.
- With respect to powers
- Until recent years, an anomaly existed with respect to a reserved power to revoke, such as that contained in a revocable inter vivos trust. The first Restatement of Property excluded powers to revoke from the definition of the term “power of appointment,” making inapplicable the rule that a reserved power of appointment subjects the appointive assets to the claims of the donor-powerholder’s creditors. See Restatement of Property § 318(2) and cmt. i. In line with this view, courts and authorities held that trust assets of a revocable trust were exempt from the claims of the settlor’s creditors. Restatement 2d of Trusts § 330 cmt. o. Recent statutes and cases, however, have .... This new understanding has been adopted by the Restatements 2d and 3d of Property, and the Uniform Powers of Appointment Act, which include powers to revoke in the definition of a power of appointment. See, e.g., Uniform Powers of Appointment Act § 102(13) and the accompanying Comment; Restatement 3d of...
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Chapter 10. A Primer on Powers 52 results (showing 5 best matches)
- The property subject to a power of appointment is called the . The property interest subject to appointment need not be an absolute-ownership interest. In fact, powers of appointment frequently involve appointment of a remainder interest, as in the following example.
- Another recurring and perplexing dispositive pattern is the devise to someone for life, remainder to the life tenant’s “executors and administrators” or “estate” or some similar phrase. Courts have had great difficulty in deciding the import of this type of devise. Some courts hold that the life tenant takes a general power of appointment. Other courts hold that the life tenant takes a remainder interest. If the remainder to the life tenant’s “executors and administrators” is conditioned on some event, such as “income to A for life, and if A dies with issue, to A’s executors and administrators,” other possible interpretations arise. One possibility is that the language created a remainder interest in A’s issue. Another possibility is that A took a nongeneral power. Still another possibility is that A received a remainder in fee (in addition to the life estate) on condition that
- taker in default of appointment
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Half Title 2 results
Title Page 4 results
Chapter 3. Classifying Future Interests 245 results (showing 5 best matches)
- The reason for categorizing future interests as either reversions or remainders is that the legal profession, especially in describing future interests created in a trust, is accustomed to referring to a future interest retained by the transferor as a “reversion” and a future interest created in a transferee as a “remainder.” In addition, the Restatement Third of Trusts refers to a resulting trust as a “reversionary, equitable interest” (see Restatement Third, Trusts § 7), and the Restatement Third of Trusts and the Restatement Third of Restitution variously refer to property as “reverting” or “reverting back” to the transferor or the transferor’s estate or successors in interest in certain cases. Finally, various uniform statutes, such as the Uniform Trust Code and the Uniform Principal and Income Act, refer to the future interest in trust principal as a “remainder.”
- Because a particular estate (a possessory estate other than a fee simple) is an estate of less quantum than a fee simple estate (see § 2.2), a property owner retains a reversion when the owner transfers out a particular estate and (1) does not create a nonreversionary future interest to follow it or (2) creates one or more nonreversionary future interests that do not exhaust all possible post-transfer events.
- When a
- The one nonreversionary interest permitted at common law before the Statute of Uses (on which, see the next section) was the remainder. A remainder, as traditionally defined, is a future interest created in a transferee that becomes possessory if at all upon the natural termination of the preceding interest. The preceding interest (1) must have been created simultaneously with the creation of the future interest and (2) must be a particular estate. Recall that a particular estate is a term of art denoting any possessory interest other than a fee simple interest.
- Some rules of thumb can be helpful in mastering the traditional system of classification when future interests occur in sets. When a is followed by more than one nonreversionary future interest, only one of which can become possessory, all the future interests are executory interests, for a remainder cannot follow a fee simple estate. (Recall § 3.4.)
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Chapter 4. Two Consequences of the Classification of Future Interests 35 results (showing 5 best matches)
- In general, a future interest that fails, regardless of the reason, is treated as if it had not been created. A particular problem exists, however, if the failed future interest is an executory interest following a fee simple estate. On this point, courts have reached different results depending on whether the estate is a fee simple determinable or a fee simple subject to a condition subsequent. Consider the following examples.
- Future interests are generally , meaning capable of passing by intestacy. At one time, the course of descent for future interests was different from that of possessory estates. The details need not trouble us here; they are described in Simes & Smith on Future Interests § 1882; Am.L. Prop. § 4.73. The divergent course of descent for future interests was abolished by statute in England in 1897, and today in the United States reversions, remainders, and executory interests descend according to the same rules and in the same proportions as possessory estates. Everywhere except South Carolina, possibilities of reverter and rights of entry also descend according to the same rules applicable to possessory estates. In South Carolina, possibilities of reverter and rights of entry do not descend. See
- There is a potential problem with selling future interests to satisfy creditors: the sale of a future interest that is subject to conditions will undoubtedly bring a low purchase price. In such an event, the sale would not substantially benefit the creditor and might do serious harm to the debtor by depriving him or her of the future possibility of gaining property of much higher value. The winner in such situations is neither the debtor nor the creditor but the purchaser at the sale. (There is, of course, the chance that the purchaser may be the creditor.) In a tiny handful of cases, courts have responded to this problematic scenario by exercising their equitable powers to depart from the general rule on creditors’ rights in cases involving equitable future interests, meaning future interests in trust. In at least one case, the court held that the future interest was subject to contingencies so remote that the creditor should simply be denied access to it.
- The italicized qualification in the Restatement 3d of Property—“unless the transferor has imposed a valid restraint on alienation”—leads us to an important point:
- Under the Restatement 3d of Property, the devisability and descendability of a future interest do not depend upon classification. The position of the Restatment 3d of Property is stated in § 25.2 cmt. f: “All future interests are … devisable and inheritable if the owner’s death does not terminate the interest….”
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Chapter 1. Introduction to Estates and Future Interests 43 results (showing 5 best matches)
- present interests
- The Restatement of Property defines the word estate to mean an interest in land that is or might become possessory and is ownership measured in terms of duration. The Restatement defines the word interest to mean either (1) varying aggregates of rights, privileges, powers, and immunities or (2) any one of them. See Restatement of Property §§ 5, 9.
- The fragmentation of property in American law takes three main forms, corresponding to the first three parts of this book. Part I examines the temporal division of property into present and future interests. Part II examines the rights given by law to one spouse in the other spouse’s property (known traditionally as the “marital estates”). Part III examines the concurrent division of property among multiple present owners (“concurrent estates”).
- The effect of the principle is to limit the forms of fragmentation. This has a beneficial by-product in the classroom: students need only learn a fixed number of estates and future interests, and how to recognize them.
- There are three basic forms of fragmentation. First, ownership can be fragmented into interests; these are the familiar tenancy in common, joint tenancy, and tenancy by the entirety (see Chapter 9). Secondly, ownership can be fragmented into and interests; this arises when property is placed in trust. Finally, ownership can be fragmented sequentially into and future interests; a future interest in property is a nonpossessory interest that might or will become possessory at some future time.
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Chapter 6. Three Other Rules Governing Future Interests 83 results (showing 5 best matches)
- Example 6.1 involved one typical scenario of destructibility: a
- The divergent notion of an indefinite line of succession (see footnote 3) never crept into the worthier title doctrine. The doctrine is thus triggered by future interests in the grantor’s heirs, understood as the persons who succeed to the grantor’s intestate estate. Accordingly, a future interest in the grantor’s “next of kin” would trigger the doctrine if that term is definitionally the same as “heirs” under state law, whereas a future interest in the grantor’s “children” or “descendants” would not (regardless of whether the grantor’s children or descendants actually turn out to be his or her heirs at death).
- The destructibility rule has its origins in the English feudal system before the Statute of Uses. In that system, the transfer of land from one person to another meant the transfer of seisin, or the right to possess the land. In the prototypical transfer with a future interest— transfers land “to A for life, remainder to to A. Under a legal fiction accepted at common law, A would hold seisin for himself and for , and at A’s death seisin would pass to . But in Example 6.1, has not, at A’s death, satisfied the condition precedent to possession and thus would not be capable of accepting seisin, thereby triggering a reversion to would hold seisin for himself only, because English law did not permit the holder of an interest in fee simple to hold seisin partly on behalf of another. Only the holder of a freehold interest
- doctrine of worthier title
- The doctrine originally applied as rule of law to remainders in land. Expanded as a rule of construction, the doctrine applies equally to remainders and executory interests, whether legal or equitable, whether in land or in personalty. This is important, as most modern future interests are created in trusts of personalty.
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Chapter 5. The Rule Against Perpetuities 245 results (showing 5 best matches)
- Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the 90 years allowed by [§ 1(a)] if: (1) a nonvested property interest or a power of appointment becomes invalid under [§ 1]; (2) a class gift is not but might become invalid under [§ 1] and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or (3) a nonvested property interest that is not validated by [§ 1(a)] can vest but not within 90 years after its creation.
- Future interests created in charities are subject to the common-law Rule, the Uniform Rule, and the reformulated Rule under the Restatement 3d of Property in the same way as future interests created in private parties, with one exception. The exception concerns future interests in a charity that are preceded by an interest created in another charity. In such a case, the future interest in a charity will not be subject to the Rule. Consider the following example.
- (c) The donee of a nonfiduciary power of appointment alive when the period of the rule begins to run if the exercise of such power could affect the non-vested interest in question.
- At common law, the Rule Against Perpetuities applies to future interests in property, whether legal or equitable, but only if they are contingent (nonvested). Classification of the interests in a disposition is, therefore, a preliminary but crucial step to solving perpetuity questions. Specifically, the Rule applies to contingent remainders and to executory interests, both of which are contingent future interests. The Rule does not apply to vested remainders, not even to those that are vested subject to defeasance; nor does the Rule apply to reversions, which are always vested. The other two reversionary future interests—possibilities of reverter and rights of entry—are also considered exempt from the Rule Against Perpetuities.
- What we mean to say is that you can safely limit the persons you test to insiders—those who are connected in some way to the transaction. Only insiders have a chance of supplying the requisite causal connection demanded by the requirement of initial certainty. The insiders to be tested vary from situation to situation, but would always include: the transferor; the beneficiaries of the disposition, including but not restricted to the taker or takers of the challenged interest; the powerholder and permissible appointees of a power of appointment; persons related to the foregoing by blood or adoption; and anyone else who has any connection to the transaction. If there is any doubt about a particular person, no harm is done by subjecting that person to the test. Usually it takes no more than an instant to resolve whether or not a person arguably on the fringe of the transaction has the requisite causal connection demanded by the requirement of initial certainty.
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Answers to Exercises 24 results (showing 5 best matches)
- ’s creditors: under modern law, they are entitled to reach the trust assets, because a reserved power to revoke is the same as a reserved general power of appointment. did not exercise the power. ’s surviving spouse: the traditional view is that the elective share is limited to the decedent’s probate estate, which excludes property subject to a presently exercisable general power of appointment; the Uniform Probate Code reaches the opposite result in § 2-205(1)(i).
- f. Under the traditional system of classification, A has a life estate, has a remainder that is vested subject to divestment, and has a shifting executory interest, which is contingent (based on the condition precedent that not survive A). Under the simplified system in the Restatement 3d of Property, A has a life estate, and and have contingent remainders. If B dies before A, ’s interest becomes remainder that is indefeasibly vested (in the traditional system) and vested (under the Restatement 3d of Property).
- is the donor. A is the powerholder. The only permissible appointee is . The taker in default is X Charity. The power is presently exercisable and nongeneral. With respect to the remainder interest, the power is in gross. With respect to A’s income interest, the power is appendant.
- 2.a. has a remainder that is vested subject to open. The unborn or unadopted children of A have executory interests contingent on being born or adopted and on reaching age 30. The class is open at ’s death to future children—in other words, the rule of convenience does not then apply—because the time of distribution is A’s death, not ’s death. The validity of the class gift is governed by the all-or-nothing rule. The executory interests are invalid, so the entire class gift is invalid.
- e. Under the traditional system of classification, A has a life estate, and have contingent remainders, and has a reversion that is vested subject to divestment. Under the simplified system in the Restatement 3d of Property, A has a life estate, and have contingent remainders, and has a contingent reversion.
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About the Author 2 results
- Thomas P. Gallanis is the N. William Hines Chair in Law at the University of Iowa. He is the Executive Director of the Joint Editorial Board for Uniform Trust and Estate Acts and an Adviser to the ALI project on the Principles of the Law of Nonprofit Organizations. He was Associate Reporter for the Restatement Third of Trusts and participated in the Members Consultative Group for the Restatement Third of Property: Wills and Other Donative Transfers. He also served as the Reporter for the Uniform Real Property Transfer on Death Act, codified as part of the Uniform Probate Code, and the Uniform Powers of Appointment Act.
- Lawrence W. Waggoner is the Lewis M. Simes Professor Emeritus of Law at the University of Michigan. He was the Reporter for the Restatement Third of Property: Wills and Other Donative Transfers and the Director of Research of the Joint Editorial Board for Uniform Trust and Estate Acts. He was the principal architect and draftsperson of the 1990 and 2008 revisions of the Uniform Probate Code. He served as Reporter for several other uniform acts, including the Uniform Statutory Rule Against Perpetuities. He was also an Adviser to the Restatement Third of Trusts.
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Chapter 7. Marital Estates at Common Law 23 results (showing 5 best matches)
- was an interest arising in a surviving husband as of the date of his wife’s death. The interest was a life estate in all inheritable land held at any time during the marriage by the wife in fee simple or fee tail, or in which the wife had an equitable estate in fee (meaning that the land was held in trust by someone else for the wife’s benefit).
- marital estates
- life estate by and during coverture
- was an interest arising in a surviving wife as of the date of her husband’s death. The interest was a life estate in one third of the inheritable land held at any time during the marriage by the husband in fee simple or fee tail.
- The estates of
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Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
- Printed in the United States of America
- © West, a Thomson business 2005
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Chapter 8. Modern Protections for the Surviving Spouse 52 results (showing 5 best matches)
- Because both spouses own community property, problems arise concerning the management of community assets. Community property states have statutes prescribing who has power to manage and deal with the assets. These statutes vary considerably, but some generalizations are possible. In Texas, the wife has sole management power over her earnings that are kept separate, and the husband has sole management power over his. In California and several other community property states, either spouse has power, acting alone, to manage community assets. Both spouses, however, ordinarily are required to join in transfers or mortgages of community real property. If one spouse makes a gift of community property to a third party, the non-donor spouse may set it aside entirely or in excess of a stated amount. See J. Thomas Oldham, Management of the Community Estate During an Intact Marriage, 56 L. & Contemp. Prob. 99 (1993).
- A unique feature of community property regimes is that the surviving spouse is not seen as needing an elective share to protect against disinheritance. The survivor already owns a half interest in the fruits of the marriage. The survivor’s contribution having been rewarded, the decedent can be allowed unfettered power of disposition over his or her separate property and his or her portion of the community property.
- Similar protection for the surviving spouse is uncommon, although some states provide it. See Restatement 3d of Property § 9.5. The protection is particularly evident in those states adopting § 2-301 of the Uniform Probate Code. The section provides that if the decedent executed the will before the marriage, the surviving spouse is entitled to receive a share of the decedent’s probate estate, unless (1) it appears that the will was made in contemplation of the marriage, (2) the will expresses the intention to omit the future spouse, or (3) the decedent provided for the spouse outside the will and there is evidence that such provision was intended to be in lieu of a share of the will.
- All but one of the separate-property states decided that disinheritance of the surviving spouse at death is one of the few instances in which the decedent’s testamentary freedom with respect to his or her title-based ownership interests must be curtailed. No matter what the decedent’s intent, the separate-property states recognize that the surviving spouse has a claim to a portion of the decedent’s estate. These statutes provide the spouse a so-called . Because the forced share is expressed as an option that the survivor can elect or let lapse during the administration of the decedent’s estate, the better and more descriptive term is an
- One danger of the separate property system is that when the first spouse dies, the surviving spouse may be left penniless. This danger was prevented at common law by the estates of dower and curtesy. In place of the marital estates, most common-law jurisdictions provide two layers of statutory protection for a surviving spouse: (1) statutes of intestate succession, known formally as statutes of descent and distribution, giving the surviving spouse a share of the decedent spouse’s intestate estate; and (2) statutes authorizing the surviving spouse to take an elective share of the decedent spouse’s property. Some common-law jurisdictions also provide a third layer: protection against inadvertent omission from a premarital will.
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Outline 84 results (showing 5 best matches)
- Chapter 1. Introduction to Estates and Future Interests
- PART I. POSSESSORY ESTATES AND FUTURE INTERESTS
- PART IV. POWERS OF APPOINTMENT
- § 3.9 Future Interests in Sets Under the Traditional System: Rules of Thumb
- § 3.13 Vested and Contingent Future Interests Under the Restatement 3d of Property
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Exercises on Part I 14 results (showing 5 best matches)
- 1. Under the traditional system of classification and the simplified system of classification in the Restatement 3d of Property, classify the present and future interests created in the following transfers:
- 2. Do any of the following interests violate the common-law Rule Against Perpetuities? If an interest is valid, identify the validating life.
- transferred land “to A for life, then to the first child of A who reaches age 30.” was survived by A and A’s daughter,
- transferred land “to A and his heirs as long as they deliver an orchid on January 1 of each year to me or my successors, otherwise to
- transferred land “to A for life, then for life to such of A’s children as reach age 30, then to ’s remainder vest in possession?
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Chapter 9. Concurrent Estates 99 results (showing 5 best matches)
- unity of interest
- Tenancy in common
- is subject to partition, but only if both spouses agree. The agreement of both spouses is also generally needed to convey an interest to a third party. Absent partition, a tenancy by the entirety will terminate only on death or divorce. In the latter event, jurisdictions are divided on whether the former spouses—if they continue to hold concurrent estates—are tenants in common or joint tenants.
- The creditor of a may (as with tenancy in common) seek partition. Short of partition, the creditor should act promptly to sever the estate, transforming it into a tenancy in common. (This is typically done by the execution of a lien on the property then a judgment sale of the debtor-tenant’s interest.) If the creditor fails to act while the debtor-tenant is alive, the creditor will be too late. The right of survivorship will operate at the debtor-tenant’s death, leaving nothing within
- The conveyance from A to severs the joint tenancy (and the right of survivorship) between A and and between A and holds the land as a tenant in common with and ’s interest passes to his heir, and ’s one-third interest passes automatically to and then hold unequal shares as tenants in common.
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Exercises on Part IV 6 results (showing 5 best matches)
- 1. Identify the parties to, and classify, the following powers of appointment:
- conveyed property into a revocable trust providing for the payment of income to A for life, then for outright distribution of the corpus to such persons as died without exercising the power, but with substantial debts and a surviving spouse,
- transferred property in trust, “to pay the income to A for life, then to distribute the corpus to X Charity. However, A may at any time direct the trustee to pay the trust corpus outright to
- a. transferred land “to A for life, remainder to such persons as
- transferred land “to A for life, remainder to such charities as A shall by will appoint, otherwise to
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Index 258 results (showing 5 best matches)
- POWERS OF APPOINTMENT
- Exception, second look doctrine for powers of appointment, 349-354
- Powers of appointment,
- Future interests in favor of grantor’s heirs, subject to Worthier Title Doctrine, see Worthier Title Doctrine
- See Estate at Sufference; Estate at Will; Estate from Period to Period; Fee Simple Absolute; Fee Simple Determinable; Fee Simple Subject to a Condition Subsequent; Fee Simple Subject to an Executory Limitation; Fee Tail; Life Estates; Terms of Years
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Table of Cases 16 results (showing 5 best matches)
Exercises on Parts II and III 10 results (showing 5 best matches)
- transferred land “to A, , and as tenants in common with the right of survivorship.” What result?
- a. A transfers his interest to
- a. A transfers his interest to
- transferred land “to A, , and as joint tenants and not as tenants in common.” What happens if:
- c. A dies, survived by his spouse, , and with a will devising “all of my property to X Charity”?
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Professor of Law, Michael E. Moritz College of Law,
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- Publication Date: October 25th, 2013
- ISBN: 9780314290960
- Subject: Property
- Series: Nutshells
- Type: Overviews
- Description: This comprehensive guide provides an overview of the rules and principles of estates and future interests, including concurrent estates, marital estates (including the modern elective share), and powers of appointment. It includes new innovations from the Restatement 3d of Property, modernizing the law of future interests and dramatically changing the Rule Against Perpetuities. The book is also the very first publication to incorporate the new Uniform Powers of Appointment Act (2013). The book also has exercises, with answers at the back. Valuable for students in first-year Property and upper-year courses in Trusts and Estates.