Estates and Trusts Commons^™

The Law Of Digital Resurrection, Victoria J. Haneman

Scholarly Works

The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the …

Tax Sheltering Death Care, Victoria J. Haneman

Scholarly Works

Death is not free. Funeral, burial, or cremation costs are the third largest category of expense over the lifetime of the average American, while poverty paradoxically remains the fourth leading cause of death. Many are unable to shoulder the often-exorbitant cost of death care without being forced to beg, borrow, or simply abandon human remains. Sufficient resources exist to ensure that everyone is laid to rest with dignity in the United States, but those resources are not evenly distributed. This is a conversation about affordable and humane disposition of remains as a right versus a privilege. It is a discussion …

Afterlife Of The Death Tax, Samuel D. Brunson

Indiana Law Journal

More than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.

This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of …

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 …

The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton

Faculty Scholarship

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs—the last will of Dr. Jekyll. This will so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that he is impelled to seek the truth behind his friend’s relationship to Hyde. …

Sherlock Holmes And The Problem Of The Dead Hand: The Modification And Termination Of "Irrevocable" Trusts, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is about the modification and termination of so-called “irrevocable” trusts. A trust may be made irrevocable at the time of its creation or it may become so at a later time. A testamentary trust is one that is embodied in a will and becomes effective at the testator’s death. Since the testator will be dead by the time the trust becomes effective, he will not be in a position to modify or revoke it. For the same reason, a revocable trust will become irrevocable when the settlor dies or when the power to revoke is released. Finally, an …

Review: Compassionate Care For The Living And The Dying, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "The End of End-of Life Law" (92 N.C.L. Rev. 1693 (2014), by Lois L. Shepard. In light of medical advances and increasing health care costs, conversations about end-of-life care will continue to occur. A significant portion of the discussion will focus on ways to handle surrogate decision-making. The practical suggestions Professor Shepherd includes in her article could be a valuable part of that dialogue.

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

University of Richmond Law Review

No abstract provided.

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 …

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

University of Richmond Law Review

No abstract provided.

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

University of Richmond Law Review

No abstract provided.

Ird And S Corporations, Gregory V. Gadarian, Jonathan G. Blattmachr

Touro Law Review

No abstract provided.

Family Protection Under Kentucky's Inheritance Laws: Is The Family Really Protected?, Carolyn S. Bratt

Law Faculty Scholarly Articles

Courts and legislatures always have granted widows some protection from the economic hardships that their husbands' deaths cause. At the earliest common law, a surviving wife was entitled to dower in the form of a right to remain in her husband's home along with the other heirs after the husband's death. Today, the states have enacted a variety of statutory devices that provide protection for families who might otherwise experience financial hardship upon the death of a spouse or parent. The older types of statutory safeguards take the form of homestead and personal property exemptions. Typically, the probate homestead exemption …

Carryover Basis: An Observation, An Irony, And A Proposal, Alan L. Feld

Faculty Scholarship

Alan L. Feld is a Boston University Law School professor and visiting professor at the University of Pennsylvania Law School. In this article Feld describes the changes in the treatment of capital gains transferred at death that were enacted in the Tax Reform Act of 1976. Feld notes that tax reformers would have preferred to tax capital gains at death but accepted the carryover basis provision as a second-best solution.

He reports that in the case of the very largest estates, the combined, effect of carryover basis and the lower estate tax rates results at most in a total estate …

Joint Tenancy: The Estate Lawyer's Continuing Burden, John E. Riecker

Michigan Law Review

The discussion which follows will be divided into three major parts. First, it will be important to see why so much real and personal property remains in joint tenancy between husband and wife or in entireties tenancy. It has been almost eighteen years since Congress eliminated the necessity of holding property in this form in order to split income therefrom for income tax purposes. Is inertia the only reason for the popularity of joint ownership, or are there other reasons? Second, we shall review the familiar but false assumptions most laymen (and even a few attorneys) commonly make regarding the …

Taxation-Federal Estate Tax-Tax Consequences Of A Gift In Contemplation Of Death By A Joint Tenant Or A Tenant By The Entirety, Fredric L. Smith S.Ed.

Michigan Law Review

This comment will examine the foregoing problem in light of several recent cases which have cast doubt on the presently conceived relationship between section 2035 and section 2040.

Descent And Distribution - Joint Ownership - Imposition Of Constructive Trust On Murderer Of Co-Tenant, John B. Schwemm S.Ed.

Michigan Law Review

A husband, owning land with his wife as tenants by the entireties, killed her and immediately thereafter committed suicide. In an action to determine ownership of the realty, both the probate and appellate courts declared that since a relevant disinheritance statute was inapplicable, full title vested in the husband and, upon his death, descended to his heirs. On appeal, held, reversed. Despite the common law nature of such tenancies, equity will impose on the husband a constructive trust in one-half the property for the benefit of the victim's estate. National City Bank of Evansville v. Bledsoe, (Ind. 1957) …

Foreign Personal Representatives, Banks Mcdowell Jr.

Michigan Legal Studies Series

In dealing with the legal rules affecting foreign personal representatives, the author of the present monograph is to be commended for the lucid analysis in the following pages of the principal questions that an executor or administrator appointed in one state will encounter in the administration of a single estate on a multi-jurisdictional basis: his right to sue and liability to suit in other states, the effects of his extra-legal action outside the state of his appointment, and the possibilities of reforming existing laws so as to make feasible a system of single administration of decedents' estates. This analysis is …

Legal Effect Of Contracts To Devise Or Bequeath Prior To The Death Of The Promisor: Ii, Bertel M. Sparks

Michigan Law Review

After there has been a contract to make a will it is often said that the promisor is a trustee of the property for the use of the promisee. This statement is usually offered as a reason for or an explanation of the relief granted in a particular case, without any indication as to how such a premise was arrived at and without any consideration of other possible results that might How from the designation of the relationship as a trust.

Legal Effect Of Contracts To Devise Or Bequeath Prior To The Death Of The Promisor: I, Bertel M. Sparks

Michigan Law Review

Questions involving the rights, duties, powers, privileges, and immunities of parties to contracts to devise or bequeath are frequently raised prior to the death of the party promising to make the devise or bequest. In essence the problem is one of analyzing the legal relationships existing prior to the date set for performance. An analysis of these relationships is undertaken in this article. Vital questions concerning the formation of such contracts and their enforcement after the promisor's death are considered only when they appear essential to the development of the main theme which concerns the contract's effect prior to the …

Descent And Distribution--The 'Worthier Title" Doctrine In Iowa--A Limitation Established, Lewis R. Williams, Jr. S.Ed.

Michigan Law Review

Testator left his entire estate of less than $7,500 to his wife who had predeceased him. Defendants claimed the estate through operation of the anti-lapse statute, as heirs of the wife. As the distribution statute gave the widow of an intestate the first $7,500 of the estate, plaintiffs, heirs at law of the testator, claimed title on a basis of the "worthier title" doctrine, arguing that the widow, had she lived, would have taken by descent and not by purchase, and therefore the anti-lapse statute did not apply. On appeal from a denial of defendants' motion to transfer the proceeding …

Bills And Notes-Construction Of Negotiable Instruments And Contemporaneous Written Agreements, Ralph J. Isackson

Michigan Law Review

On April 12, 1938, M executed a demand promissory note, negotiable in form, payable to the order of his daughter, the plaintiff. Simultaneously M prepared and attached a written instrument to the note stating that the plaintiff agreed that she would not attempt to collect the note until M died. The attached instruments were delivered to plaintiff immediately after execution. M died May 23, 1945. Plaintiff, who held the instruments from the date of execution without making any demand for payment, filed the note with the defendant, M's administrator, as a claim against M's estate. The defendant objected …

Wills--Construction-Testamentary Intent, J. R. Swenson

Michigan Law Review

In a will drawn for her by a layman, testatrix inserted in her own words a clause reading, "It is my belief that 120 acres . . . owned by my deceased husband, John Cagley, subject to a life estate willed to me, be distributed to his four nieces and nephews . . . . " In fact, her husband's will had not specifically disposed of the remainder, and testatrix had in addition to the life estate, taken the remainder as residuary devisee. Held, The clause was a valid devise of the property to the four named beneficiaries. Layton …

Trusts-Language Of Condition In Inter Vivos Conveyance Construed As A Trust, Bruce L. Moore

Michigan Law Review

Grantor conveyed certain real property to plaintiff by deed "subject to the following conditions: That upon my death, the Grantee must pay to my Grand Children out of my estate, the sums of money indicated after each name," the amount to be paid totaling $5,000. By this deed grantor transferred practically all of the property of which she was possessed, so that upon her death she left an estate of but $100. Without having paid any part of the amount stipulated in the deed, grantee commenced suit to quiet title as against the named grandchildren, who in .turn counterclaimed. In …

Descent And Distribution-Necessity Of Administration Of Decedents' Estates-Effect Of Statutes Which Change The Devolution Of Personal Property, Neal Seegert S.Ed.

Michigan Law Review

It is almost an axiom of the common law that upon the death of a person the title to his personal property vests in his personal representative. On the other hand it is equally axiomatic that title to real property descends directly to the heirs or devisees, subject to the control of the personal representative and the probate court for purposes of satisfying the debts of the decedent in the absence of sufficient personalty. A number of jurisdictions, however, have by statute altered the common-law doctrine and have provided that title to both personalty and realty passes directly to the …

Deeds-Testamentary Character, James R. Bliss S.Ed.

Michigan Law Review

In 1929 J. J. Coulter and wife signed, acknowledged, and delivered to be recorded an instrument granting in customary form certain described land to their daughter, Eliza Coulter. The instrument then recited, "It is understood between the parties hereto that the grantors are to have the possession, control and occupancy of said lands during their natural life, and at their death the title to said lands shall vest in the said Eliza Coulter, but not until the death of both grantors herein, does the title pass." The present action, presumably instituted after the death of the makers, sought construction of …

Wills--Torts To Expectancies-Wrongful Destruction Of Wills, Robert K. Eifler S.Ed.

Michigan Law Review

In a tort action to recover damages for the destruction of a will, plaintiff alleged that plaintiff's grandmother had executed a holographic will · prior to her death in October, 1939 by which she devised a farm to her two children for their lives, and at their death to plaintiff in fee; that the defendants, one of the two children and his wife, destroyed the will shortly before plaintiff's grandmother's death and while she was non compos mentis. The petition alleged that if the will had not been destroyed it would have been duly probated, but there was no …

Wills--Construction-Lapse-"Heirs" As Substitutionary, Ira M. Price, Ii

Michigan Law Review

Testator in his will bequeathed one half of his estate "share and share alike" to his three brothers, naming them, "being to each a one-third part thereof, to them and their heirs forever." Two of the brothers were to testator's knowledge dead at the time he made his will, and the third brother predeceased the testator. In proceedings brought for a construction of the will, held, that the residuary legacies to the brothers did not lapse, but the legacies vested in the respective heirs of deceased brothers. In re Britt's Estate, (Wis. 1946) 23 N.W. (2d) 498.

Future Interests--Effect On Contingent Remainders Of Widow-Life Tenant's Election To Take Against A Will, Niel Mckay S.Ed.

Michigan Law Review

Testator devised one half of the income from an undivided one-third interest in certain real estate to the defendant, his wife, and provided that on her death the undivided one-third interest was to go to his brother and sister, plaintiffs here, if living, otherwise to his children in a certain named order if living. The defendant, testator's widow, elected to take her statutory share against the will, and the county court decreed her a one-half interest in the undivided one third, the other one-half interest going to the plaintiffs. Plaintiffs, also having title to the other two thirds of the …

Wills-Testator's Mistake As To Legal Effect, Robert M. Barton

Michigan Law Review

Testator left the residue of his estate in trust for the benefit of his son, payments to be made in the trustee's discretion. No express provision was made for the disposition of the corpus of the trust in case of the son's death. The contestant, who was one of the testator's heirs, claimed the testator never would have executed such a will had his lawyer informed him that the contestant might be excluded from the remainder interest on the son's death under the rule laid down in Clyde v. Lake. Held: The will stands. There was no showing …