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Articles 1 - 18 of 18
Full-Text Articles in Law
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
Daniel B Kelly
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 …
Trusting Trust, Deborah Gordon
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 — …
Balancing Testamentary Incapacity And Undue Influence: How To Handle Will Contests Of Testators With Diminishing Capacity, Richard B. Keeton
Balancing Testamentary Incapacity And Undue Influence: How To Handle Will Contests Of Testators With Diminishing Capacity, Richard B. Keeton
Richard B. Keeton, Esq.
Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford
Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford
Mary F. Radford
Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.
Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly
Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly
Daniel B Kelly
The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s …
Letters Non-Testamentary, Deborah Gordon
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 …
Case Note: In Re Estate Of Brown (Tenn. 2013), Lee T. Nutini
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.
Arizona's Slayer Statute: The Killer Of Testator Intent, Adam D. Hansen
Arizona's Slayer Statute: The Killer Of Testator Intent, Adam D. Hansen
Adam D Hansen
In 2012, the Arizona legislature amended its slayer statute to close loopholes that had emerged during years of slayer case litigation. However, in so doing, the Arizona legislature neglected to consider the adverse impact the amendment would have on the trending social consideration of euthanasia. This Article sheds light on the unintended legal consequences of Arizona’s current slayer statute, considering the trending social issue of euthanasia. Part Two briefly presents terms, highlights two legal theories that were used in early American jurisprudence, and gives a short history of the codification of modern slayer statutes. Part Three gives an overview of …
Au Revoir, Will Contests: Comparative Lessons For Preventing Will Contests, Margaret Ryznar, Angelique Devaux
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 …
American Probate: Protecting The Public, Improving The Process, Paula Monopoli
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 …
Reforming Intestate Inheritance For Stephchildren And Stepparents, Terin Cremer
Reforming Intestate Inheritance For Stephchildren And Stepparents, Terin Cremer
Terin Barbas Cremer
The current Uniform Probate Code (UPC) and state statutes relating to stepfamilies fail to achieve the purpose of intestacy statutes: to satisfy the likely intent of the decedent of a blended family and care for his or her family. More than one-half of all Americans have lived in, are currently living in, or will live in, a stepfamily, yet stepchildren and stepparents are excluded from intestate succession. The UPC drafters developed the language at a time when blended families were the exception rather than the norm. This Article proposes statutory language consisting of a series of factors courts can use …
Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand
Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand
palma joy strand
The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …
Got Premium? Costanza V. C.I.R. And The Tax Treatment Of Intrafamily Scins Cancelled By Death, Gadi Zohar
Got Premium? Costanza V. C.I.R. And The Tax Treatment Of Intrafamily Scins Cancelled By Death, Gadi Zohar
Gadi Zohar
In 2003, the Sixth Circuit Court of Appeals overturned a Tax Court determination that the self-canceling installment note (SCIN) created by Duilio Costanza and his son, Michael, was a gift because it lacked the features of an arms-length transaction. It is the author's assertion that 1) the Sixth Circuit Court of Appeals overstepped its standard of review, and 2) both courts were lacking in an analysis of the most important evidence of a bona fide transaction: the consideration. Consideration for the transaction should have included a premium accounting for the risk that Duilio would die before the term of the …
The Evolution Of Women's Rights In Inheritance, Kristine Knaplund
The Evolution Of Women's Rights In Inheritance, Kristine Knaplund
Kristine Knaplund
No abstract provided.
Adr Gone Wild!: One State’S Experience With A Radical Trust And Estate Dispute Resolution Act, Kirsten M. Elliott
Adr Gone Wild!: One State’S Experience With A Radical Trust And Estate Dispute Resolution Act, Kirsten M. Elliott
Kirsten M Elliott
This paper explores one state’s use of a radical alternative dispute resolution act in the area of wills and trusts. While the primary focus of this paper is to explore a unique Washington law –the Trust and Estate Dispute Resolution Act (TEDRA) – it is important to note that similar, if not identical sets of statutes exist in other states. TEDRA was passed in 1999 as a means for providing for mandatory alternative dispute resolution in the area of trusts and estates, namely mediation, arbitration, or private agreement between the parties. Recently, Idaho passed a nearly identical Act and these …
The Inheritance Process In San Bernardino County, California, 1964: A Research Note, Lawrence M. Friedman, Christopher J. Walker, Ben Hernandez-Stern
The Inheritance Process In San Bernardino County, California, 1964: A Research Note, Lawrence M. Friedman, Christopher J. Walker, Ben Hernandez-Stern
Christopher J. Walker
Probate records are ubiquitous. Virtually every American county has records of estates of the dead. These records contain rich source material for any study of American legal and social history. They have a lot to tell us about family life, about the economy, about love and death and every aspect of life in America. Yet very few scholars have tried to tap these records. There are very few empirical studies that use as their main source probate records, probably no more than a dozen or so, and even fewer in California. This research note is a modest attempt to add …
Intellectual Property And Domestic Relations: Issues To Consider, Ann Bartow
Intellectual Property And Domestic Relations: Issues To Consider, Ann Bartow
Ann Bartow
Intellectual property (IP) is a term that denotes intangible yet legally protected products of human creativity. The main types of IP include patents, copyrights, and trademarks. This article provides an overview of the special IP issues that can arise in the contexts of divorce, estate planning, or probate.
September 11 Attacks And Surviving Same-Sex Partners: Defining Family Through Tragedy, Nancy J. Knauer
September 11 Attacks And Surviving Same-Sex Partners: Defining Family Through Tragedy, Nancy J. Knauer
Nancy J. Knauer
The September 11 relief efforts present a unique prism through which to view the status of same-sex relationships and to consider which families count when the United States is supposedly at its most generous, most united, and most injured. On a basic human level, would the nation grieve for Peggy Neff, who lost her partner of 18 years when Flight 77 crashed into the Pentagon, as it had for the widow of a fire fighter? Would Neff be eligible to file a claim with the multi-billion dollar federal September 11 Victim Compensation Fund, which Congress established to compensate victims and …