Estates and Trusts Commons^™

Is A Will Better Than Intestacy?, Kristine S. Knaplund

University of Cincinnati Law Review

No abstract provided.

A Good Death: End-Of-Life Lawyering Through A Relational Autonomy Lens, Genevieve Mann

Washington Law Review

Death is difficult—even for lawyers who counsel clients on end-of-life planning. The predominant approach to counseling clients about death relies too heavily on traditional notions of personal autonomy and a nearly impenetrable right to be free from interference by others. Rooted in these notions, contracts called “advance directives” emerged as the primary tool for choosing one’s final destiny. Nevertheless, advance directives are underutilized and ineffective because many people are mired in death anxiety, indecision, and the weight of planning for a hypothetical illness. In the end, many do not get the death they choose: to trust in others and share …

How Gender And Other Identity Factors Influence Attitudes Toward Will Making: Lessons From Australia, Bridget J. Crawford, Tina Cockburn, Kelly Purser, Ho Fai Chan, Stephen Whyte, Uwe Dulleck

Elisabeth Haub School of Law Faculty Publications

This essay aims to stimulate interest in further empirical study of attitudes toward will making by reporting the results of a 2022 survey conducted in Australia of the general population (n=1202) and legal professionals (n=112). We asked participants for their views about the ideal age at which to begin the will-making process and the relative contributions of the client and attorney to any resulting will. There was a discernible gender-based difference in views on both questions. Women preferred to initiate those conversations approximately six years earlier than men did and, especially at earlier life stages, preferred less professional input into …

How Gender And Other Identity Factors Influence Attitudes Toward Will Making: Lessons From Australia, Bridget J. Crawford, Tina Cockburn, Kelly Purser, Ho Fai Chan, Stephen Whyte, Uwe Dulleck

ACTEC Law Journal

This essay aims to stimulate interest in further empirical study of attitudes toward will making by reporting the results of a 2022 survey conducted in Australia of the general population (n=1202) and legal professionals (n=112). We asked participants for their views about the ideal age at which to begin the will-making process and the relative contributions of the client and attorney to any resulting will. There was a discernible gender-based difference in views on both questions. Women preferred to initiate those conversations approximately six years earlier than men did and, especially at earlier life stages, preferred less professional input into …

Legacies Of A Pandemic: Remote Attestation And Electronic Wills, Richard F. Storrow

Mitchell Hamline Law Review

No abstract provided.

Post-Pandemic Estate Planning: Analyzing The Recent Changes In Remote Notarization Laws, Matthew Fiedler

Seattle University Law Review

This Note explores estate planning in the post-pandemic landscape. Part I of this Note discusses how the resistance to remote technology in estate planning is rooted in traditional notions of formalism. Part II introduces a discussion regarding the use of remote technology, including its benefits and drawbacks. Part III articulates the current legal requirements to validly notarize signatures on various estate planning documents in Washington state. This part also discusses the extent of electronic or remote notarization allowed in the wake of emergency orders issued by Washington State Governor Jay Inslee in response to the spread of COVID-19. Additionally, Part …

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin

Georgia Law Review

In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be …

Incentivizing Wills Through Tax, Margaret Ryznar

ACTEC Law Journal

There have been recent calls to loosen will formalities in order to allow more people to execute wills, the importance of which has been highlighted by the COVID-19 pandemic. The reduction of necessary will formalities can be successful in expanding the use of wills, as can potential tax incentives for creation of wills, such as a tax credit. However, there are numerous advantages to using tax to initiate change, as considered in this Article.

Inheritance Crimes, David Horton, Reid Kress Weisbord

Washington Law Review

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized …

The Uniform Probate Code's New Intestacy And Class Gift Provisions, Mary Louise Fellows, Thomas P. Gallanis

ACTEC Law Journal

Law and society inextricably link family and wealth transmission. An individual’s right to inherit from an intestate decedent depends on whether the individual has a legally recognized familial relationship to the decedent. Similarly, when a class gift in a donative document uses a term of relationship to identify the class members, an individual’s right to share in the gift depends on the legal recognition of the relationship. The enactment of the 2017 Uniform Parentage Act required a revision of the intestacy and class gift provisions of the Uniform Probate Code.

We were the reporters, or principal drafters, of the UPC …

“Champion Man-Hater Of All Time”: Feminism, Insanity, And Property Rights In 1940s America, Magdalene Zier

Michigan Journal of Gender & Law

Legions of law students in property or trusts and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 decision from New Jersey’s highest court as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on this overt sexism, these sources affirm the …

Wills Formalities In Post-Pandemic World: A Research Agenda, Bridget J. Crawford, Kelly Purser, Tina Cockburn

Elisabeth Haub School of Law Faculty Publications

The COVID-19 global pandemic has brought new focus to human mortality. The virus has reminded many people that they need to have a valid will or otherwise make plans for the effective transmission of their property on death. Yet stay-at-home orders and social distancing recommendations make it difficult or impossible to comply with the traditional rules for validly executing wills. Across most common law jurisdictions, the traditional requirements call for two witnesses in the physical presence of the testator. Because of the practical difficulties of safely executing documents during the pandemic with witnesses assembled in physical proximity, many jurisdictions internationally …

Rethinking The Estate Planning Curriculum, Jeffrey A. Cooper

ACTEC Law Journal

As a result of recent changes in Federal estate tax law, fewer and fewer clients need sophisticated estate tax planning. Many lawyers are thus spending less time acting as estate tax planners and instead deploying different skills and expertise.

In this brief article, I explore the extent to which law schools are rethinking their curricula as a result. The discussion proceeds in two parts. First, I discuss the curricular changes I have overseen at the law school at which I teach, setting out both the changes made and the assumptions underlying them. Second, relying on a brief survey of other …

Blockchain Wills, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Blockchain technology has the potential to radically alter the way that people have executed wills for centuries. This Article makes two principal claims--one descriptive and the other normative. Descriptively, this Article suggests that traditional wills formalities have been relaxed to the point that they no longer serve the cautionary, protective, evidentiary, and channeling functions that scholars have used to justify strict compliance with wills formalities. Widespread use of digital technology in everyday communications has led to several notable cases in which individuals have attempted to execute wills electronically. These wills have had a mixed reception. Four states currently recognize electronic …

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 …

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, …

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 …

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

Faculty Scholarship

Author's Note: This Article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed. Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this …

Wills Formalities In The Twenty-First Century, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Individuals have executed wills the same way for centuries. But over time, traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary, and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent …

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 …

The Decline Of Revocation By Physical Act, Barry Cushman

Journal Articles

The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This article surveys the place of revocation by physical act in …

Sb 301 - Wills, Trusts, And Administration Of Estates, Morgan S. Ownbey, Paul M. Napolitano

Georgia State University Law Review

The Act creates the “Revised Uniform Fiduciary Access to Digital Assets Act,” extends fiduciaries’ powers to include managing tangible property and digital assets, and provides conforming cross-references for a conservator.

Hb 121 - Property, Wills, Trusts, And Estates, Colt Burnett, Ben Dell'orto

Georgia State University Law Review

The Act amends several aspects of trust law, including updating the application of the Uniform Statutory Rule Against Perpetuities in Georgia by extending the time within which a nonvested property interest or power of appointment must vest from 90 to 360 years. The Act also allows for modifications of a trust without judicial approval in some cases. Many passages are simplified, including the calculation of compensation for a trustee, which can now be modified through different procedures. Finally, the Act codifies the role of trust directors.

The Holy Grail? Designing And Teaching An Integrated Doctrine And Drafting Course, Claire C. Robinson May

Law Faculty Articles and Essays

I’ve long considered teaching doctrine and skills together in a single course to be the holy grail of legal education. If we could do so successfully, we might make significant strides in providing a legal education that better prepares our students to be practicing lawyers. In spring 2016, my colleague Professor April Cherry and I took the plunge and collaboratively offered a course titled Estates and Trusts: Doctrine and Drafting at our institution, Cleveland-Marshall College of Law. This essay describes our experience and lessons learned pursuing the holy grail.

The Prince Estate: How Intestacy Works, How It Could Work, And How It Fails As An Estate Plan, Dennis M. Patrick, Beth T. Morrison

Mitchell Hamline Law Review

No abstract provided.

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 …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

The Supreme Court of Virginia has handed down seven recent

decisions addressing the authority of an agent to change the principal's

estate plan, legal malpractice claims in estate planning,

rights of incapacitated adults, limits of the constructive trust doctrine,

effects of a reversionary clause in a deed, ownership of an

engagement ring, and proof of undue influence. The 2017 Virginia

General Assembly clarified rules on legal malpractice and tenancies

by the entireties, adopted the Uniform Trust Decanting Act

and the Uniform Fiduciary Access to Digital Assets Act, and expanded

provisions governing estate administration, life insurance,

and advance medical directives. Other …

Arbitration In Wills And Trusts: From George Washington To An Uncertain Present, Edward F. Sherman

Arbitration Law Review

No abstract provided.

In Re Connell Living Trust, 133 Nev. Adv. Op. 19 (May. 04, 2017), Marco Luna

Nevada Supreme Court Summaries

The Nevada Supreme Court affirmed the decision of the district court that found Appellant had breached her fiduciary duty when she withheld assets from entering a trust created for her children, the Respondents. The Court found that the mother had insufficient evidence to raise a genuine issue of material fact that she owned 100% of a trust created by her parents when her children were slated to receive 65% of said trust from their grandparents. The Court affirmed the lower court, ordered the assets be moved to the children's trust, and awarded them attorney's fees.

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 …