Estates and Trusts Commons^™

Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt

UF Law Faculty Publications

Will construction—the process wherein a trier of fact must determine the testator’s probable intent because the testator’s actual intent is not clear—is too little discussed and too often misunderstood in succession law jurisprudence. Yet, construction issues are becoming increasingly important due to a growing number of will and trust disputes concerning the determination of beneficiaries in a post-Obergefell United States. Currently, courts are being asked to construe terms like “spouse,” “husband,” “wife,” “child,” “son,” “daughter,” and “descendants” in estate planning documents during a time in which understandings of marriage, identity, reproduction, religious liberty, and public policy are rapidly evolving. Interestingly, …

What Happened To Grandma’S House: The Real Property Implications Of Dying Intestate, Danaya C. Wright

UF Law Faculty Publications

Studies have shown that intergenerational wealth transmission significantly affects wealth concentration and the growing wealth gap. Of the two million households that received an inheritance or a substantial inter vivos gift each year, roughly half are small, under $50,000, while transfers of $1 million or more account for only 2% of the transfers. Yet, those 2% of inheritances over $1 million comprise 40% of total wealth transferred. As scholars continue to examine the role of inheritance in the alarming wealth gap, few are focusing on how the laws of intestacy might exacerbate the gap by leading to greater wealth loss …

Disrupting The Wealth Gap Cycles: An Empirical Study Of Testacy And Wealth, Danaya C. Wright

UF Law Faculty Publications

In an empirical study of all decedents dying in 2013 in Alachua County, Florida whose estates were probated, either testate or intestate, the data show striking correlations between intestacy and lower wealth, and testacy and greater wealth. And the demographics of those who died intestate correspond to the demographics of those people at risk of falling into the cycle of wealth-dissipation. To explore the possible effects of intestacy and testacy on wealth and property succession, I analyzed 408 estates (293 testate and 115 intestate) across a variety of categories, including wealth, age, race, sex, and marital status. All of these …

Commentary On Reid Kress Weisbord And David Horton, Boilerplate And Default Rules In Wills Law: An Empirical Analysis, Danaya C. Wright

UF Law Faculty Publications

Reid Weisbord and David Horton have undertaken an incredibly important empirical study in an area of law that suffers from a large gap in our understanding of how people actually choose to leave their property at their death and the drafting traps that can easily lead to litigation. The study is also important for illustrating how the lawyers we teach in Trusts and Estates need to be more careful in drafting the various documents to manifest their clients' testamentary intent. In particular, Weisbord and Horton studied 230 recently probated wills in Sussex County, New Jersey and discovered that the use …

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

UF Law Faculty Publications

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 …

Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging …

A Comment On Unification, Grayson M.P. Mccouch

UF Law Faculty Publications

This Article discusses recent proposals aimed at unifying the law of wills and nonprobate transfers. The author notes that default rules of construction present the strongest case for unification, but contends that distinctions between wills and nonprobate transfers remain important in the areas of formalities and restrictions affecting third-party rights. The author concludes that the policy goal should be to allow wills and nonprobate transfers to operate smoothly as complementary methods of deathtime wealth transmission.

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

UF Law Faculty Publications

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 …

Transfer Of Property By Inheritance And Bequest In Biblical Law And Tradition, Richard H. Hiers

UF Law Faculty Publications

In what follows, we first review briefly the kinds of property subject to transfer by inheritance or bequest. Next, we examine texts pertaining to intestate succession - that is, transfer of property by operation of law upon the death of the property holder without explicit provision by will or bequest as to who will inherit or take afterwards. As a summary expression, such transfers will be designated as "inheritance." In this context, we note the relevance of certain provisions regarding levirate marriage and the Year of Jubilee. We also consider the problematic nature of the so-called birthright practice in this …

Will Substitutes Under The Revised Uniform Probate Code, Grayson M.P. Mccouch

UF Law Faculty Publications

Recent years have witnessed a dramatic increase in probate avoidance. Revocable trusts, joint-and-survivor or pay-on-death (“POD”) bank accounts, transfer-on-death (“TOD”) security registrations and other will substitutes have proliferated and emerged as successful competitors of the probate system. In response to this “nonprobate revolution,” the drafters of the Uniform Probate Code (“UPC”) have begun to reconsider the scope and direction of probate reform. The 1989 and 1990 UPC revisions reflect a new emphasis on integrating the law of probate and nonprobate transfers.

Nevertheless, the nonprobate revolution remains incomplete. Although the revised UPC establishes uniform constructional rules for wills and will substitutes, …