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Articles 1 - 30 of 60
Full-Text Articles in Estates and Trusts
The Role Of Trust Law Principles In Defining Public Trust Duties For Natural Resources, John C. Dernbach
The Role Of Trust Law Principles In Defining Public Trust Duties For Natural Resources, John C. Dernbach
University of Michigan Journal of Law Reform
Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does …
Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli
Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli
University of Michigan Journal of Law Reform
This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC's commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …
The Delaware Series Llc: Sophisticated And Flexible Business Planning, Ann E. Conaway, Peter I. Tsoflias
The Delaware Series Llc: Sophisticated And Flexible Business Planning, Ann E. Conaway, Peter I. Tsoflias
Michigan Business & Entrepreneurial Law Review
The authors conclude that the Delaware series supplies a beneficial, efficient use of a combined contractual Delaware entity form when pooled with sensible, informed planning by sophisticated business attorneys. Such benefits are particularly noticeable in investment vehicles where managers embark to minimize risk by diversifying the fund’s assets or receive funding with specific covenants attached that limit the acceptable uses of the funds. The series is not, however, for general practitioners who have the occasional client wishing for the latest benefit Delaware has to offer its investors. To provide context, Parts II-IV of this article provide a brief overview of …
Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle
Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle
Michigan Law Review
This Note argues that courts should recognize intestacy rights for same sex couples that were validly married or civilly united in a state other than the one in which one of the partners died. Courts may validly recognize the marriage for intestacy purposes, even while refusing to recognize the marriage as against public policy. Part I details the recent provision of benefits in various states to same-sex couples. Part II argues that same-sex couples cannot necessarily rely on wills to effectuate their intent to leave their property to their spouses. Part III argues that when states refuse to recognize the …
Recent Developments In The Struggle For Probate Reform, Richard V. Wellman
Recent Developments In The Struggle For Probate Reform, Richard V. Wellman
Michigan Law Review
The two Als being honored by this issue have honored me with years of precious friendship and many words a!!-d acts of support and encouragement. In return, they and their friends and others who may peruse these pages prepared as they near retirement really deserve better reading than can be expected of an article that wallows in the dreadful details of legislation dealing with probate procedure. Conard and Smith are old hands when it comes to efforts at improvement of law and legal institutions. They know better than to immerse themselves deeply in a piece like the one that follows, …
The Case Against Living Probate, Mary Louise Fellows
The Case Against Living Probate, Mary Louise Fellows
Michigan Law Review
This Article presents the case against living probate in hopes of preventing a reform that was appropriately discarded a century ago. Part I describes the various living probate proposals, highlighting their similarities, differences, and procedural complexities, and the benefits they seek to realize. Part II lays out four failings of living probate that call the desirability of this reform into question. Finally, in Part III, I propose an alternative reform which concentrates on the underlying problem inspiring living probate proposals - the expense and uncertainty of a mental capacity requirement for executing a valid will.
Living Probate: The Conservatorship Model, John H. Langbein
Living Probate: The Conservatorship Model, John H. Langbein
Michigan Law Review
The main purpose of the present Article is to suggest a somewhat different theoretical and practical approach to structuring the living probate procedure. I shall characterize the procedure called for in the North Dakota act and in similar proposals as the Contest Model of living probate, in distinction to a Conservatorship Model that I shall advocate to be the better way. Part I of this Article reviews briefly the problem to which living probate is addressed and the alternatives that can presently be employed to forestall post-mortem capacity litigation in the absence of a living probate system. In Part TI …
The Impact Of The Uniform Probate Code On Court Structure, Ralph P. Dupont
The Impact Of The Uniform Probate Code On Court Structure, Ralph P. Dupont
University of Michigan Journal of Law Reform
After considering the present pattern of probate court structure in the United States, this article considers the need for probate court reform as reflected in the deficiencies of the present system. It further indicates that a realistic choice of court structure by legislatures will ultimately be made from among three options: (1) to enlarge the jurisdiction of the present probate court of the state more nearly to approximate the form currently obtaining in several states; (2) to appoint a new body of probate judges and thus create an entirely new court; and (3) to enlarge the jurisdiction of the present …
The Joint And Survivor Account In Michigan-Progress Through Confusion, Richard V. Wellman
The Joint And Survivor Account In Michigan-Progress Through Confusion, Richard V. Wellman
Michigan Law Review
Legal writers have been intrigued for years by the challenge of classifying and identifying the resulting incidents of the joint and survivor bank deposit when an attempt is made to use it as a mode of effectuating a donor depositor's intention to confer benefits on a donee co-depositor. Much in their discussions is useful to one who is concerned with the concept that has evolved in Michigan, where a 1909 statute states that some co-depositors are presumed to be joint tenants. Michigan judges and practitioners must determine, however, whether comment about national trends is applicable here, for in many respects …
Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume
Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume
Michigan Law Review
The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "
Property - Powers - State Powers Statutes Protecting Creditors And Requiring Formal Execution, Robert A. Smith S. Ed.
Property - Powers - State Powers Statutes Protecting Creditors And Requiring Formal Execution, Robert A. Smith S. Ed.
Michigan Law Review
The first part of the comment considers the elevation sections of the statute-sections that change the donee's interest in the appointive or dispositive property to a fee for the benefit of creditors. The second part considers the execution sections of the statute-sections that subject the execution of powers to conveyancing requirements. These sections are of the utmost significance to estate planners.
Future Interests - Rule Against Perpetuities - Recent Statutory Amendment In New York, Paul K. Gaston S.Ed.
Future Interests - Rule Against Perpetuities - Recent Statutory Amendment In New York, Paul K. Gaston S.Ed.
Michigan Law Review
After 128 years of criticism and confusion and enormous amounts of litigation, New York has amended its statutory rule against perpetuities. The old rule provided that the absolute power of alienation could not be suspended for longer, than "two lives in being" at the creation of the estate plus a minority exception in some cases. Under the new rule the absolute power of alienation can be suspended for a period measured by any number of "lives in being" at the creation of the estate so long as they are not "so designated or so numerous as to make proof of …
Wills - Execution - Attestation, Max H. Bergman
Wills - Execution - Attestation, Max H. Bergman
Michigan Law Review
Prospective witnesses to a will saw the testatrix standing in an adjoining room engaged in writing. Soon thereafter, the testatrix asked them to come in and sign a paper. Her name had already been written on the document, and she neither signed it in the witnesses' presence nor in any manner indicated the writing to be her will. The witnesses read enough of the document, however, to know it was a will, before subscribing it in the presence of the testatrix and one another. Three of the testatrix' sons objected to the probate of the will on the ground that …
Taxation-Federal Estate Tax-Relevance Of Marital Deduction To Computation Of Widow's Distributive Share Of Husband's Estate Where She Elects To Take Against Will, Alice Austin
Michigan Law Review
A widow electing to take against her husband's will claimed to be entitled to have her one-third share of decedent's net personal estate computed without deduction of federal estate taxes, on the theory that Congress in allowing the marital deduction intended that a widow's share qualifying for such deduction should be free of the impact of the federal estate tax. The state had no statute providing for apportionment of federal estate taxes. Held: Congress did not intend, by allowing the marital deduction, to change the rule that state law is determinative of the impact of the federal estate tax. …
Defeasance As A Restrictive Device In Michigan, William F. Fratcher
Defeasance As A Restrictive Device In Michigan, William F. Fratcher
Michigan Law Review
Quite apart from any question of their validity, the imposition of use restrictions by means of a prohibition was not practicable before the development of equitable remedies because the common law afforded no method of enforcing such a prohibition. One who conveyed land in violation of a prohibition on alienation might attempt to enforce the prohibition by attacking the validity of his own conveyance but one who violated a prohibition on use had neither motive nor method for challenging his own acts. Hence attempts to restrict use by common law devices are necessarily confined to penalty restraints and to limitations …
Future Interests-Powers Of Appointment-Exclusive And Nonexclusive Powers And The Doctrine Of Illusory Appointments, John Houck S.Ed
Future Interests-Powers Of Appointment-Exclusive And Nonexclusive Powers And The Doctrine Of Illusory Appointments, John Houck S.Ed
Michigan Law Review
Testatrix, after making certain specific bequests, devised the residue of her estate to her son George for life. The will stated that upon the death of George, the property should pass to his widow and descendants, "provided, however, that [George] may devise his interest to his widow, his descendants or my descendants." The will further provided that if George should die leaving no widow or descendants, and without having made a testamentary disposition, the property was to pass one-half to George's brother and his descendants, and one-half to a sister. George died without having married and left a will which …
Ten Probate Codes, Lewis M. Simes
Ten Probate Codes, Lewis M. Simes
Michigan Law Review
It is the purpose of this article to summarize some of the most important aspects of these codes for the purpose of indicating legislative trends. For the most part, they will be discussed in the chronological order of their enactment. While some of them deal with many other matters besides the law of decedents' estates, such as guardianships and testamentary trusts, this discussion will be limited to the substantive and procedural law of decedents' estates, exclusive of matters of ancillary administration.
Constitutional Law-Power Of State To Discriminate Against Federal Government By Testamentary Transfer Statute, Gordon W. Hueschen
Constitutional Law-Power Of State To Discriminate Against Federal Government By Testamentary Transfer Statute, Gordon W. Hueschen
Michigan Law Review
Decedent, domiciled in California, made a testamentary gift to the United States. By an interpretation of the state probate code, the California Supreme Court held the gift invalid and directed distribution to decedent's heirs. The United States asserted unconstitutional interference with the federal government's power to receive gifts. On appeal to the United States Supreme Court, held, affirmed. The California Probate Code did not violate the supremacy clause of the Constitution, and no unconstitutional discrimination was effected against the federal government thereby, even though the statute allows testamentary gifts by state domiciliaries to the state and prohibits testamentary gifts …
Trusts-Spendthrift Trusts-Restrictions On Alienation As A Constitutionally Protected Property Right Of The Donor, Thomas Hartwell
Trusts-Spendthrift Trusts-Restrictions On Alienation As A Constitutionally Protected Property Right Of The Donor, Thomas Hartwell
Michigan Law Review
The beneficiary of a spendthrift trust, created in 1921, sought to renounce and terminate her life interest, thereby vesting the fee simple of the trust res in her son, as remainderman, free of the spendthrift provisions. A Pennsylvania statute, passed in 1945, authorized anyone with any interest in real or personal property to disclaim such interest, irrespective of any so-called spendthrift trust provisions. Held, prayer for termination denied on the ground that the statute, as it applied to spendthrift trusts created before its passage, was a violation of the donor-settlor's property rights under the Pennsylvania Constitution. To allow the …
Future Interests-Worthier Title Doctrine, David H. Armstrong S. Ed.
Future Interests-Worthier Title Doctrine, David H. Armstrong S. Ed.
Michigan Law Review
Plaintiff created an irrevocable trust of $75,000, reserving the income to himself for life and directing distribution of the corpus upon his death to his heirs according to the California laws of succession in existence at his death. Later he sued to terminate the trust on the theory that since the worthier title doctrine prevented creation of a remainder in his heirs, he was sole beneficiary. The intermediate California appellate court held that the worthier title doctrine was inapplicable because of a California statute changing the word "heirs" from one of limitation to one of purchase. Therefore, the outstanding remainder …
Future Interests-Rule As To Remoteness Of Vesting In California, Howard W. Haftel S. Ed.
Future Interests-Rule As To Remoteness Of Vesting In California, Howard W. Haftel S. Ed.
Michigan Law Review
T devised the income of a trust to his unmarried daughter for life. If at her death there were living issue of the daughter, the income was to be distributed to such issue until 24 years after T's death. The trust was then to terminate, unless issue, who had been living at T's death, should survive the 24-year period, in which event the income was to continue to be distributed until the death of such issue. It was further provided, "if my said daughter survives me, but at the time of her death leaves no issue of hers …
Wills-Validity Of Attestation On Separate Sheet Of Paper Not Physically Attached To Will, Myron J. Nadler
Wills-Validity Of Attestation On Separate Sheet Of Paper Not Physically Attached To Will, Myron J. Nadler
Michigan Law Review
Testatrix drew an instrument consisting of a single sheet of paper, intending it as her will. In the presence of a notary public, three witnesses observed the instrument with testatrix' signature thereon and her acknowledgment of it as her will, but did not sign it. The document was then placed in an envelope. A separate instrument of attestation which referred to the will was prepared by the notary and signed by the testatrix and the attesting witnesses. This instrument and the envelope containing the will were both placed in another folder which was then deposited with the proper officials. Probate …
Mcgowan: Trust Receipts, Michigan Law Review
Mcgowan: Trust Receipts, Michigan Law Review
Michigan Law Review
A Review of TRUST RECEIPTS. By George B. McGowan.
Powers-Execution By A General Residuary Clause, John E. Grosboll S.Ed.
Powers-Execution By A General Residuary Clause, John E. Grosboll S.Ed.
Michigan Law Review
Testatrix was given a general testamentary power of appointment over the corpus of a trust by her deceased husband's will. His will further directed that "a general residuary clause in her will shall not be deemed to be an exercise of said power of appointment." Plaintiff was named as a taker in default of appointment. The testatrix died eight years later leaving a will which expressly provided that it was exercising the power of appointment. One paragraph of her will gave several specific bequests from the said trust estate; the paragraph following provided: "All the rest, residue and remainder of …
Trusts And Estates-Trends In The Law: 1941-1945 (A Service For Returning Veterans), Lewis M. Simes
Trusts And Estates-Trends In The Law: 1941-1945 (A Service For Returning Veterans), Lewis M. Simes
Michigan Law Review
In every generation there are some judicial decisions so revolutionary that any summary of developments in the law, regardless of its author or of its brevity, would include them. Such cases as Erie Railroad v. Tompkins and Williams v. North Carolina will fall into this category no matter who lines up the materials. But such avulsive changes rarely if ever occur in the law of Trusts and Estates; and it is anybody's guess to determine the significant aspects of the day-to-day accretions which actually take place. Thus, the writer has no illusions that he is singling out the trends as …
The Function Of Will Contests, Lewis M. Simes
The Function Of Will Contests, Lewis M. Simes
Michigan Law Review
To anyone steeped in the doctrines of the common law there is something anomalous about the will contest. First, the will is duly admitted to probate in a proceeding which is almost universally conceded to be judicial. Then at a subsequent time a so-called contest is brought by the heir, in which the precise proposition determined on the probate is retried. In most jurisdictions the heir is not bound to make any sort of a showing to entitle him to contest. He need not allege newly discovered evidence. He need not submit any evidence of · fraud or mistake. Indeed, …
The Present Status Of "Illusory" Trusts-The Doctrine On Newman V. Dore Brought Down To Date, Edward A. Smith
The Present Status Of "Illusory" Trusts-The Doctrine On Newman V. Dore Brought Down To Date, Edward A. Smith
Michigan Law Review
It has long been the policy of the law to provide for a widow by setting aside some portion of her deceased husband's estate for her future support. Such a policy, it has been said, dates back to the laws of Hammurabi and later evidences of it may. be found in the Justinian Code of the Roman Law, and in English law from the earliest times; its final manifestation being in the well-known common law dower. It is not with dower, however, that we are here concerned, for that institution is sufficiently well understood to require no discussion in this …
Administration Of Estates-Requirement Of Notice For Probate Of Will Or Grant Of Letters Of Administsration, Elizabeth Durfee
Administration Of Estates-Requirement Of Notice For Probate Of Will Or Grant Of Letters Of Administsration, Elizabeth Durfee
Michigan Law Review
To lawyers and judges in states which require notice for the initiation of probate or administration, it may come as a shock to discover that there are many jurisdictions in which these proceedings can be had without any notice whatever. It is the purpose of this note to investigate the situation in the various states, in order to show that in nearly half of them notice is not considered essential. The sole question to be considered is notice or no notice; this comment is not concerned with the kind of notice required, nor with the possibility of waiver of notice …
The Venue Of Probate And Administration Proceedings, Paul E. Basye
The Venue Of Probate And Administration Proceedings, Paul E. Basye
Michigan Law Review
With the division of each state into counties or districts and the creation in each such subdivision of some court for the probate of wills and the administration of estates, it became necessary to designate which of such courts should undertake these functions in a particular estate. It is not the purpose of this study to consider problems arising out of conflicts of jurisdiction as between states insofar as independent determinations of domicile of a decedent may be made. That a decedent died a resident of the state undertaking an administration upon his estate will be assumed; or, if he …
Executors And Administrators-Right Of Creditors Of A Decedent To Recover From Distributees After The Estate Is Closed
Michigan Law Review
A recent California decision suggests a problem of some difficulty in the administration of decedents' estates. In Dabney V. Dabney, it appeared that a decedent had, in his lifetime, contracted to pay the plaintiff $100 and $350 respectively, monthly, as long as plaintiff should live, according to the terms of two contracts. In distributing the estate the court, as provided in the California Probate Code, had set aside a sum of money for the purpose of paying these monthly installments. The estate was then distributed, defendant herein being the principal distributee. On February 17, 1941, there remained only $216 …