Law Commons^™

Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner

Danaya C. Wright

This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent …

Virginia Survey Of Law: Property Section; Trusts And Estates Section, Lynda L. Butler

Lynda L. Butler

No abstract provided.

Mor[T]Ality And Identity: Wills, Narratives, And Cherished Possessions, Deborah S. Gordon

Deborah S Gordon

The Game Is Afoot!: The Significance Of Donative Transfers In The Sherlock Holmes Canon, Stephen R. Alton

Stephen Alton

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the …

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Trusting Trust, Deborah Gordon

Deborah S Gordon

What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down recreation of the trustee’s role, this Article contends that valuable lessons can be learned by reconceptualizing how trustees, settlors, and beneficiaries view themselves and each other. Using traditional literature about great judging as a touchstone, the Article argues that those qualities essential to principled adjudication — …

Probate Law Reform And Nonprobate Transfers, Grayson M.P. Mccouch

Grayson McCouch

The advent of widespread, large-scale probate avoidance has added a new dimension to the project of probate law reform. When the Uniform Probate Code made its debut in 1969, its primary goal was to modernize traditional probate procedures and make them more uniform, flexible, and efficient. The Code's reforms were in part a response to the rise of will substitutes which offered a ready means of transferring property at death outside the probate system. In the intervening years, however, will substitutes have continued to proliferate, while traditional probate procedures have resisted comprehensive reform. The probate system has not become obsolete …

Tax Recognition, Barry Cushman

Barry Cushman

This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but …

Letters Non-Testamentary, Deborah Gordon

Deborah S Gordon

Letters written in anticipation of death, so-called “last letters,” appear frequently in American case law, especially when inheritance is at issue. One common appearance is when such letters are offered to serve as wills for decedents who leave no other written indication of testamentary intent. Even where a properly attested will exists, though, many courts have construed letters as codicils – addenda – to the more traditional instruments, though such letters sometimes contradict or substantially alter the original wills. Courts also use letters as tools for interpreting ambiguous documents and as mechanisms for determining whether a formal property arrangement, a …

Estate Planning Games, Thomas Shaffer

Thomas L. Shaffer

No abstract provided.

Evans V. Abney: Reverting To Segregation , David S. Bogen

David S. Bogen

No abstract provided.

Case Note: In Re Estate Of Brown (Tenn. 2013), Lee T. Nutini

Lee T Nutini

A case note analyzing the current conflict in Tennessee precedent concerning contract-based will contests and their jurisdictional challenges. This article is now published in the Tennessee Law Review and is available on Westlaw or LexisNexis at 80 Tenn. L. Rev. 883.

Au Revoir, Will Contests: Comparative Lessons For Preventing Will Contests, Margaret Ryznar, Angelique Devaux

Margaret Ryznar

American probate law has not yet managed to prevent will contests and not every will executed will be ultimately upheld. The most common grounds for will contests are undue influence, testamentary capacity, and fraud. These will contests have significant costs, which include failing to give effect to testator’s intent and high litigation and decision costs. In fact, the most significant challenge that exists in American probate law today is the frequent inability to honor testamentary intent due to will contests brought by disgruntled relatives. On the other hand, a legal system that has nearly eliminated will contests on the grounds …

Which The Deader Hand? A Counter To The American Law Institute's Proposed Revival Of Dying Perpetuities Rules, Scott A. Shepard

Scott A. Shepard

Encouraged primarily by a fluke in federal estate and gift tax law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development, has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.

The ALI’s efforts are misguided. The rule against perpetuities was the product of a legal, political and social age very different than our own. It was …

American Probate: Protecting The Public, Improving The Process, Paula Monopoli

Paula A Monopoli

New Hampshire judge and probate attorney John Fairbanks, a court-appointed executor and trustee, stole thousands of dollars from the estates of his trusting elderly clients. Successful Virginia lawyer David Murray misappropriated nearly four million dollars from estates entrusted to him in one of the largest financial swindles by a lawyer in U.S. history. Enterprising attorney James Gunderson drafted wills and living trusts for many residents of Leisure World in Orange County, California, who named him the sole trustee and major beneficiary. These are just some of the cases examined by Paula A. Monopoli to illustrate the unsettling prevalence of fraud …

Sperms And Estates: An Unadulterated Funtionally Based Approach To Parent-Child Property Succession, Lee-Ford Tritt

Lee-ford Tritt

No abstract provided.

Drafting Attorneys As Fiduciaries: Fashioning An Optimal Ethical Rule For Conflicts Of Interest, Paula A. Monopoli

Paula A Monopoli

The American Bar Association recently revised the ethical rules that govern lawyers. Its Ethics 2000 Commission proposed a number of changes to the Model Rules of Professional Conduct, including revisions to the rules that affect how the profession handles conflicts of interest in the area of attorneys who draft instruments that name themselves as fiduciaries. The intersection of these changes, with their subsequent clarification by an ABA opinion issued in May 2002, has broad implications for attorneys practicing in this area. Given the increasing elderly population, the trillions of dollars that they are transferring to their baby-boomer children, and the …