William Daniel Powell

William Daniel Powell is a San Diego attorney that focuses his practice in the Estate Planning area helping families and individuals with Estate Planning needs. This is his regular blog where he writes on various subjects relating to estate planning and estate law.

Jan 7, 2015 | 0 comments

Hello and welcome back to my blog. For this second “episode” I was wanted to discuss the Constitution and how it relates to wills, trusts, estate planning, and property rights. The Constitution is the supreme law of the land and it guarantees rights to all of us. The entire Constitution, among other documents, can be found at: http://www.archives.gov/exhibits/charters/constitution.html

So why was the Constitution written?

After we had won our freedom in the Revolutionary War, the Articles of Confederation were the documents that Congress used to frame our government. The Articles of Confederation did not establish a very strong central government because of what our Founding Fathers were afraid of – monarchy. The Articles proved inadequate for the problems our young nation was facing. The Constitution wasn’t adopted until 1789. The Constitution was written to establish our government, and secure the rights of the people. I think the preamble says it best: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What does the Constitution do for us?

I won’t spell out everything the Articles of the Constitution do, but in a nutshell they establish Congress and the House of Representatives, the Supreme Court and federal courts, and the office of the president (if you recall, the legislative, judicial, and executive branches). Further, they define the prerequisites to being a senator, representative, and the president. It also provides that it is the supreme law of the land, and defines how the document is to be amended in the future should the need arise.

The first 10 amendments to the Constitution – the Bill of Rights

The representatives of various states were still very concerned that the central government would become too large and powerful. They had just broken free of tyranny and didn’t want a repeat of that type of control. They demanded the first ten amendments to the Constitution before they would ratify the document. This “Bill of Rights” as it is known limits what the federal government can do to the citizens. At first it was believed that this only limited the federal government, and not the state governments. Through “incorporation” these have mostly been held to apply to the states as well. What good would having free speech guaranteed to you by the federal government be if the state you lived in outlawed it?

So how does the Constitution relate to wills, trusts, and property rights?

Because the Constitution guarantees our personal freedoms, and because the power the government has is derived from the people themselves, this is our country. Property rights are deeply rooted in our American way of life. When we acquire property through our hard work and good fortune we don’t want a government taking our property away without due process and just compensation. Further, the fourth amendment provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause”. Because it is ours, we want to be able to determine who gets our property when we die. This is what a will, living trust (sometimes called a revocable trust), and the entire process of estate planning accomplishes for us.