Hodel Vs Irving Summary
Trusts & Wills
Professor Gingis
Spring 2011
University of South Dakota School of Law
Dukenminier & Johanson, 6th Ed.
Chapter 1. Introduction to Estate Planning
Section A. The Power to Transmit Property at Death, Justification & Limitation
1. Jefferson’s Works - 2. Blackstone, Commentaries - 3. Hodel v. Irving - (1987) Indian land was being divided under an allotment policy and fractional ownership developed. People were owning 1/100th of a parcel of land and rental income bookkeeping was expensive. So congress said anyone who’d inherit less than 2% or income and less than $100 a year lost his inheritance and it escheated to the tribe. Irving sued because it was taking his property right to give it to his …show more content…
Here rights to property disposal at death would be totally eliminated even if you could make a complex trust do the same thing. 4. Notes: a. Investment backed expectation affected? Did the Indians expect anything? b. Benefits & burdens analasys? Is it worthwhile to take these rights? c. Gingiss - Trusts need not be complicated for only a few pieces of property. d. Court here holds the right to bequeath as a separate and distinct right, taxable. 5. Halbach - Inheritance is the least objectionable means to deal with property at death. Tax levels are going up to over 3 million by 2010, infinite by 2011…back to 1 million by 2012 (because congress didn’t have the votes for permanence) Marital Deduction - (Not on the exam) you can leave your spouse unlimited amounts tax free, until that spouse dies. Folks like to create 2 trusts, one for the maximum tax free amount, and one for the Marital Deduction that will only be taxed later. 5. Bentham …show more content…
Per Capita at each Generation (Any one at any generation who’s entitled to take anything, always gets the same as anyone else at that generation. SO at each generation, the remaining estate to be divided goes back into the pile and is redivided at the next generation.) UPC Uses this.
See P. 86 Diagram
C’s kids take 1/6 while B & D take 1/3. If C had no kids, B & D take ½ each.
The whole idea is that where a decedent’s heir is not living, that heir’s descendants take in his stead. In per stirpital distribution, spouses of heirs are not relevant. When an heir is living, their children are irrelevant. (DUH)
P 87 Diagram (2 kids dead, 3 grandkids)
English System (and SD) - Divide at the kids generation, even if they’re all dead. Then grandkids divide parent’s share. SO D gets ½, E & F get ¼.
American System (and Cal) - If all children are dead, divide that the first generation where SOMEONE is alive. So D,E,F each get 1/3.
Per Capita System - Same as American system.
P 88 Diagram
English & SD System - D gets ½, F gets ¼, H & G get 1/8.
American / Modern System - D & F take 1/3, G & H take
Professor Gingis
Spring 2011
University of South Dakota School of Law
Dukenminier & Johanson, 6th Ed.
Chapter 1. Introduction to Estate Planning
Section A. The Power to Transmit Property at Death, Justification & Limitation
1. Jefferson’s Works - 2. Blackstone, Commentaries - 3. Hodel v. Irving - (1987) Indian land was being divided under an allotment policy and fractional ownership developed. People were owning 1/100th of a parcel of land and rental income bookkeeping was expensive. So congress said anyone who’d inherit less than 2% or income and less than $100 a year lost his inheritance and it escheated to the tribe. Irving sued because it was taking his property right to give it to his …show more content…
Here rights to property disposal at death would be totally eliminated even if you could make a complex trust do the same thing. 4. Notes: a. Investment backed expectation affected? Did the Indians expect anything? b. Benefits & burdens analasys? Is it worthwhile to take these rights? c. Gingiss - Trusts need not be complicated for only a few pieces of property. d. Court here holds the right to bequeath as a separate and distinct right, taxable. 5. Halbach - Inheritance is the least objectionable means to deal with property at death. Tax levels are going up to over 3 million by 2010, infinite by 2011…back to 1 million by 2012 (because congress didn’t have the votes for permanence) Marital Deduction - (Not on the exam) you can leave your spouse unlimited amounts tax free, until that spouse dies. Folks like to create 2 trusts, one for the maximum tax free amount, and one for the Marital Deduction that will only be taxed later. 5. Bentham …show more content…
Per Capita at each Generation (Any one at any generation who’s entitled to take anything, always gets the same as anyone else at that generation. SO at each generation, the remaining estate to be divided goes back into the pile and is redivided at the next generation.) UPC Uses this.
See P. 86 Diagram
C’s kids take 1/6 while B & D take 1/3. If C had no kids, B & D take ½ each.
The whole idea is that where a decedent’s heir is not living, that heir’s descendants take in his stead. In per stirpital distribution, spouses of heirs are not relevant. When an heir is living, their children are irrelevant. (DUH)
P 87 Diagram (2 kids dead, 3 grandkids)
English System (and SD) - Divide at the kids generation, even if they’re all dead. Then grandkids divide parent’s share. SO D gets ½, E & F get ¼.
American System (and Cal) - If all children are dead, divide that the first generation where SOMEONE is alive. So D,E,F each get 1/3.
Per Capita System - Same as American system.
P 88 Diagram
English & SD System - D gets ½, F gets ¼, H & G get 1/8.
American / Modern System - D & F take 1/3, G & H take