Law Commons^™

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

Grayson McCouch

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 …

Inherit The Cloud: The Role Of Private Contracts In Distributing Or Deleting Digital Assets At Death, Natalie M. Banta

Fordham Law Review

We live in a world permeated with technology. Through our online accounts we write emails, we store pictures, videos, and documents, we pay bills and conduct financial transactions, we buy digital books and music, and we manage loyalty programs. Digital assets have quickly replaced physical letters, pictures, books, compact discs, and documents stored in filing cabinets and shoeboxes. The emergence of digital assets raises pressing questions regarding the treatment of digital assets at an account holder’s death. Unlike digital assets’ physical counterparts, an account holder does not control the ultimate fate of digital assets. Instead, digital assets are controlled by …

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 …

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 …

Tax Recognition, Barry Cushman

Barry Cushman

This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but …

A Critical Analysis Of Intellectual Disabilities And End-Of-Life Decision Making, Saritha Farris

Graduate Research Symposium (GCUA) (2010 - 2017)

Presently, research suggests the involvement of individuals with intellectual disabilities (IDs) in making end-of-life (EOL) decisions appears to be minimal (Ellison & Rosielle, 2008).

The reasons for the lack of involvement include but are not limited to communication challenges, lack of education on caring for individuals with IDs by the medical community, incorrect assumptions that the individual lacks cognitive capacity to consent, and fear of legal consequences if formal caregivers are accused of not providing enough care. (Wagemans et al., 2010).

These factors then often culminate in the individual with IDs having decisions made for them by someone else, whom …

Contemporary Trusts And Estates - An Experiential Approach, Jerome Borison, Naomi R. Cahn, Susan N. Gary, Paula A. Monopoli

Paula A Monopoli

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate “theoretical and practical legal knowledge and professional identity.” This essay goes on to outline …

Review: Linking The Certainty Of Death And Taxes, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "Wills for Everyone: Helping Individuals Opt Out of Intestacy" (53 B.C.L. Rev. 877 (2012)), by Reid Kress Weisbord. Lewis praises Weisbord’s attempt to simplify the testamentary process. She agrees with his assertion that in failing to execute a will, most people are not fearing their own mortality and instead are just not willing or able to navigate a complicated testamentary process. She supports his suggestion to make executing a will more like filing a simple tax return, when possible. In sum, she praises his efforts to reduce the rate of intestacy by simplifying the testamentary …

Teaching Wills And Trusts: The Jurisdictional Problem, Adam J. Hirsch

Saint Louis University Law Journal

No abstract provided.

Contemporary Trusts And Estates - An Experiential Approach, Jerome Borison, Naomi R. Cahn, Susan N. Gary, Paula A. Monopoli

Faculty Scholarship

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate “theoretical and practical legal knowledge and professional identity.” This essay goes on to outline …

Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann

University of Michigan Journal of Law Reform

This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation …

Tax Recognition, Barry Cushman

Journal Articles

This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but …

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti

Articles

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay …

Drafting New York Wills And Related Documents 4th Ed., William P. Lapiana, Mark Ira Bloom, Harold D. Klipstein

Books

A complete drafting system for New York wills, trusts, and advance directives. This 4th edition includes not only wills, but also revocable trusts, powers of attorney for property, directives on disposition of remains, health care proxies, living wills and directives against resuscitation (DNRs). Relevant tax considerations are included throughout the text.

Wills are still the primary subject of the work as the the first 17 chapters are devoted to the planning and drafting of wills. The non-wills area of practice is handled in Chapters 18-21.

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgender individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law's commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors' rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This Article …

Where Strict Meets Substantial: Oklahoma Standards For The Execution Of A Will, Katheleen R. Guzman

Oklahoma Law Review

No abstract provided.

Contemporary Trusts And Estates - An Experiential Approach, Naomi R. Cahn, Jerome Borison, Susan N. Gary, Paula A. Monopoli

GW Law Faculty Publications & Other Works

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate "theoretical and practical legal knowledge and professional identity." This essay goes on to outline …

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 …