Law Commons^™

Matter Of Will Of Ratcliff And The Not-So-Harmless Error: A Call To Change Mississippi’S Approach To Will Formalities, Kelsi Baldwin

Mississippi College Law Review

A will provides a mechanism to dispose of property at death. But costly litigation—or worse, a will’s invalidation—often thwart this purpose. The law of probate is state-specific, which leaves jurisdictions with the burden of ensuring that their laws promote rather than defeat the purpose of probate—to honor the testator’s intent. Mississippi attempts to recognize this purpose by requiring strict compliance with the statutory requirements for creating a will. This “better safe than sorry” approach errs on the side of invalidity with the hope that denying a non-compliant instrument for probate will prevent fraud and other wrongdoing.

Despite its intention, Mississippi’s …

Inheritance Equity: Reforming The Inheritance Penalties Facing Children In Non-Traditional Families, Danaya C. Wright

Danaya C. Wright

This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families — single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives — their right to inherit from the persons who function as their parents are severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states' …

Raising The Dead: An Examination Of In Re Kingsbury And Maine's Law Regarding Intestate Succession And Posthumous Paternity Testing, Dylan R. Boyd

Maine Law Review

In 2001, Ben Erskine, a man who claimed to be the son of renowned guru Paramahansa Yogananda, planned to ask a Los Angeles judge to order that the guru's body be exhumed for DNA testing to determine Erskine's paternity. Erskine's allegations threatened both Yogananda's reputation and the fortune of his estate, which belonged to his organization the Self Realization Fellowship. In 2002, seven years after the allegations arose, conclusive tests comparing Erskine's DNA and that of Yogananda's surviving male relatives in India resolved the controversy and vindicated the guru, thus putting to rest the looming possibility of exhuming his body …

Statutory Heirs Apparent?: Reclaiming Copyright In The Age Of Author-Controlled, Author-Benefiting Transfers, Tonya M. Evans

West Virginia Law Review

No abstract provided.

Land, Slaves, And Bonds: Trust And Probate In The Pre-Civil War Shenandoah Valley, Alfred L. Brophy, Douglas Thie

West Virginia Law Review

No abstract provided.

You Can't Choose Your Family, But You Should Choose Your Co-Tenants: Reforming The Upc To Benefit The Modest- Means Family Cabin Owner, Lisa C. Willcox

University of Colorado Law Review

No abstract provided.

Inheritance Equity: Reforming The Inheritance Penalties Facing Children In Non-Traditional Families, Danaya C. Wright

UF Law Faculty Publications

This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families — single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives — their right to inherit from the persons who function as their parents are severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states' …

The Ohio Designated Heir Statute, Albert H. Leyerle

Akron Law Review

This article will discuss the procedure for the designation of an heir, its vacation or revocation, and the effect of such a designation. The status of the designated heir, examples of unanswered questions and gray areas, and the practical significance of the statute will be included in this discussion. The conclusion will further illustrate just how powerful and practically significant a designation can be.

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …

Probate Law Meets The Digital Age, Naomi Cahn

Vanderbilt Law Review

This Article explores the impact of federal law on a state fiduciary's management of digital assets. It focuses on the lessons from the Stored Communications Act ("SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment's privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account. While existing trusts and estates laws could legitimately be interpreted to …

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

Articles

This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …

Incomplete Wills, Adam J. Hirsch

Michigan Law Review

This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portion of an individual's estate plan by extrapolating from the distributive preferences set …

It's All Mine - Or At Least Part Of It Is: A California Look At Property Apportionment Between The Families Of An Interstate And An Intestate's Predeceased Spouse, Robert G. Popovich

Pepperdine Law Review

No abstract provided.

The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary

University of Michigan Journal of Law Reform

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than …

Deliberative Accountability Rules In Inheritance Law: Promoting Accountable Estate Planning, Shelly Kreiczer-Levy

University of Michigan Journal of Law Reform

In the last few decades, the emerging trend in trust and estate law has been a steady loosening of the limitations on testamentary freedom. The 1990 Uniform Probate Code pioneered some of these developments. Construction rules are no exception. It is widely accepted that testamentary construction rules should track the owner's presumed intent. In this Article, I argue that there is also room, alongside these intent-furthering rules, for intent-defeating rules in inheritance law. A property owner lacks incentives to internalize the relational, familial, or economic effects of her allocation. Such rules, termed deliberative accountability rules, are therefore designed to foster …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

University of Michigan Journal of Law Reform

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like "dead …

Non-Judicial Estate Settlement, John H. Martin

University of Michigan Journal of Law Reform

Estate settlement through probate procedures satisfies no one. The public is hostile to the delay, expense, and lack of privacy that accompanies probate. Attorneys respond to public dissatisfaction by counseling probate avoidance. Legislatures facilitate some settlements by enacting simplified procedures for low-value estates. In large measure, the Uniform Probate Code (UPC) was a response to criticisms leveled at probate. Alternative settlement procedures are offered by the UPC, including informal testacy determinations and informal appointment procedures. These alternatives, however, remain imbedded in a judicial system, with it procedural rigidities. The UPC informal settlement alternatives did not silence the criticism. The continued …

Shattering And Moving Beyond The Gutenberg Paradigm: The Dawn Of The Electronic Will, Joseph Karl Grant

University of Michigan Journal of Law Reform

Legislators in Nevada have already acted to modernize the law of wills. This Article advocates that other states follow their lead and depart from what is described as the "Gutenberg Paradigm" by adopting similar legislation and embracing electronic technology. Part One of this Article explores the history of print, Johann Gutenberg's role in this development, and the emergence of the "Gutenberg Paradigm." Part Two examines the history and policy underpinnings of will execution formalities, and the role of the "writing" requirement. Part Three explores the use of electronic wills as conforming and nonconforming testamentary instruments. More specifically, Part Three highlights …

Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner

Articles

The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining …

No-Fault Death: Wedding Inheritance Rights To Family Values, Linda Kelly Hill

Kentucky Law Journal

No abstract provided.

The 2003 Revised Uniform Estate Tax Apportionment Act, Douglas A. Kahn

Articles

Editors' Synopsis: This Article describes the significant sections of the 2003 Uniform Estate Tax Apportionment Act (the "2003 Uniform Act'). The Article explains the purpose and operation of the 2003 Uniform Act's various sections and notes some of the differences between the 2003 Uniform Act and its prior version.

The Uniform Probate Code's Elective Share: Time For A Reassessment, Lawrence W. Waggoner

Articles

In this Article, Professor Waggoner proposes reforms to the Uniform Probate Code's (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC's elective share framework. Second, the Article presents demographic data suggesting that the UPC's current elective share approximation schedule may be inappropriatef or a sizable faction of married couples, those remarryingf ollowing widowhood. Finally, the Article proposes two substantive revisions to the UPC's election share framework-the first proposal is to lengthen the approximation schedule; …

Tribute To William F. Fratcher: Marital Property Rights In Transition, Lawrence W. Waggoner

Articles

"Marital property rights," a term that covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse, are in a state of transition. To discuss the themes and trends that are emerging, this Article is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that much concerns high-powered estate planners because intestate estates are usually fairly small. But to the surviving spouse, …

The Revised Uniform Probate Code, Lawrence W. Waggoner

Articles

In 1989 and 1990, Articles II and VI of the Uniform Probate Code (UPC) were revised by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Article II covers the basic law of intestacy, wills, spousal rights, rules of construction, and perpetuities. Article VI deals with multiple-party accounts and transfer-on-death (TOD) security registration. The major innovations in the revised UPC are driven by changes in legal theory. Three grand themes are at work in the new UPC: 1. improving spousal rights and sensitizing them to changes in family structure, 2. curing intent-defeating formalism, and 3. unifying the law of …

The Upc's New Survivorship And Antilapse Provisions, Edward C. Halbach Jr., Lawrence W. Waggoner

Articles

Law governing transfers of family property has long struggled with questions of survivorship in their many and varied forms. Important results can and regularly do turn on how such issues are resolved.

Marital Property Rights In Transition, Lawrence W. Waggoner

Articles

The subject of "marital property rights" is very timely because those rights are in a state of transition. The term "marital property rights" covers a vast multitude of rights or interests conferred by law on persons who occupy the status of spouse. This lecture is divided into four discrete, yet related segments. The first segment addresses how the law allocates original ownership between spouses in a marriage. The second segment turns to the intestate share of the surviving spouse. This is not a topic that high-powered estate planners get involved in very much because intestate estates are usually fairly small. …

Spousal Rights In Our Multiple-Marriage Society: The Revised Uniform Probate Code, Lawrence W. Waggoner

Articles

The transformation of the American family constitutes one of the great phenomenons of the past two decades. The traditional Leave It to Beaver family no longer prevails in American society. To be sure, families consisting of the wage-earning husband, the homemaking and child-rearing wife, and their two joint children still exist. But divorce rates are astonishingly high and remarriage abounds. In fact, there is an increasing prevalence in the population of marriages that are more likely to end in divorce than others-marriages in which one or both partners were divorced before and marriages of couples who cohabited prior to marriage.

The Multiple-Marriage Society And Spousal Rights Under The Revised Uniform Probate Code, Lawrence W. Waggoner

Articles

Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes, from the latter half of the 1970s into the present, comprise one of the great events of our age. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic.' The traditional "Leave It To Beaver" family no longer prevails in American society. To be sure, families consisting of a wage-earning husband, a homemaking and child-rearing wife, and their two joint children still exist. …

Spousal Probate Rights In A Multiple-Marriage Society, Lawrence W. Waggoner

Other Publications

Nearly everyone knows about the transformation of the American family that has taken place over the last couple of decades. The changes comprise one of the great events of our age-from the latter half of the 1970's into the present. Articles on one aspect or another of the phenomenon frequent the popular press, and a special edition of Newsweek was recently devoted to the topic. The traditional "Leave It To Beaver" family no longer prevails in American marriage behavior. To be sure, the wage-earning husband, the homemaking and child-rearing wife, and their two joint children-this type of family still exists. …

The Twentieth-Century Revolution In Family Wealth Transmission, John H. Langbein

Michigan Law Review

The main purpose of this article is to sound a pair of themes about the ways in which these great changes in the nature of wealth have become associated with changes of perhaps comparable magnitude in the timing and in the character of family wealth transmission. My first theme, developed in Part II, concerns human capital. Whereas of old, wealth transmission from parents to children tended to center upon major items of patrimony such as the family farm or the family firm, today for the broad middle classes, wealth transmission centers on a radically different kind of asset: the investment …