Estates and Trusts Commons^™

Will Power: Reconciling Halakha With Modern Estate Planning, Amanda Koptyev

Journal of Catholic Legal Studies

(Excerpt)

This Note will begin with an overview of Jewish laws of inheritance, using the biblical story of the daughters of Tzelafchad as a foundation and exploring Torah-based principles such as the double portion for the firstborn son and chukat mishpat. Part II examines Halakhic Wills, explaining their necessity and the mechanisms that make them compatible with Jewish law and secular systems. It also discusses the limitations of relying on the principle of dina d’malchuta dina, the principle that under certain circumstances, Jewish law requires that Jews be governed by the laws of the sovereign state, in cases …

The Case For Recognizing Informally Adopted Children As Heirs In Arkansas, Joel Gaffney

Arkansas Law Notes

Americans are steadily moving away from the nuclear family towards an understanding of family less defined by shared DNA or last names. This is especially prominent in the way children are raised. More children are being born to single or unmarried parents, and a fair number of children are being raised by nonparents. Such nonparental caretaking can manifest as “informal adoption,” where there is no biological or legal parent-child relationship but there is a functional parent-child relationship. Certain areas of the law sometimes struggle to keep up with these changes in the meaning society assigns to “family.” Statutory probate law …

Absent Heirs, Mark Glover

Pepperdine Law Review

The whereabouts of a decedent’s heirs are sometimes unknown, and consequently some inheritances go unclaimed. Generally, most states regulate unclaimed inheritances by naming a custodian to safekeep the inheritance, and if the absent heir fails to claim it within a prescribed time, then the inheritance escheats to the state. The specifics of the law, however, vary considerably across the country, particularly with respect to the identity of the custodian and the length of the custodial period. Moreover, several states take idiosyncratic approaches to absent heirs, which depart significantly from the typical regulation of unclaimed inheritances. Without hard data regarding absent …

Conflict Of Laws And The Disposition Of Decedents' Movables, David Plimpton

Maine Law Review

Improved travel and communication, a larger, more fluid population and the resulting increase in the number of persons owning property in more than one state have led to a marked increase in conflict of laws situations and also have dramatized the need for their solution. However, it is also true that the degree to which potential conflicts problems exist is a function of the extent to which the law differs between states, not only differences in substantive law but also differences with respect to choice-of-law rules formulated to deal with conflicts between substantive law. One widely accepted choice-of-law principle has …

Death And Debts, Kevin Bennardo

ACTEC Law Journal

Uniform Probate Code section 2-606(a)(1) provides for automatic non-ademption of the unpaid purchase price of specifically devised property that was sold by the decedent after their will was executed but before their death. Rather than receiving the specific property that was left to them in the will, the named beneficiary receives the balance of any outstanding payments that are owed at the time of the decedent's death. This rule doesn't make sense. It doesn't square with the decedent's likely intent. The amount that the beneficiary will receive is largely arbitrary. It is tied to factors that have nothing to do …

Property Problems In The New Non-Marriage: Inheritance, Eliot Tracz

American University Journal of Gender, Social Policy & the Law

Marriage equality has been a hotly contested topic for many years, in both the court of public opinion and in courts of law. Major Supreme Court cases have found that marriage is a fundamental right, yet issues such as marriage outside of one’s race or to a person of the same gender have still been topics of litigation. At times, the very definition of marriage has been at issue, but throughout all of this litigation, courts have consistently defined marriage as a relationship between two people.

Risks, Benefits, Opportunities, And Electronic Formalities In The Law Of Wills: A Comparative Approach, Bridget J. Crawford, Margaret Isabel Hall, Tina Cockburn, Rosie Harding, Kelly Purser

Elisabeth Haub School of Law Faculty Publications

Traditional "formalities" in the law of wills-including formal requirements for revocation by destruction-contemplate paper documents, wet signatures, and testators and witnesses in the physical presence of one another. Unless these traditional requirements have been modified by legislation, wills made using one or more electronic formalities will not meet the formal requirements for a valid will. Traditional wills formalities have become something of an outlier as the use of electronic text, records, signatures, and witnessing has become routine in many spheres, including for the creation and storage of valid legal agreements. The special nature of wills, and their consequent vulnerability to …

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 …

Wills, Trusts, And Estates : A Contemporary Approach (2023), Lloyd Bonfield, Joanna L. Grossman, William P. Lapiana

Books

is casebook is designed to present in a comprehensive yet streamlined fashion the law of Wills, Trusts, and Future Interests to 21st–century law students. It assists the student in developing an understanding of the core legal concepts critical to a grasp of wills, trusts and future interests in a novel format that is clear and easy to understand, while maintaining the intellectual rigor of the subject. The book covers the standard topics, but is organized in an innovative fashion. It begins with an estate planning problem which introduces the student to the craft of the practitioner, providing context for the …

Most People, Most Of The Time (Reviewing Mary Louise Fellows & E. Gary Spitko, How Should Non-Probate Transfers Matter In Intestacy?, 53 U.C. Davis L. Rev. 2207 (2020)), Katheleen Guzman

Other Faculty Publications

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 …

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

Mitchell Hamline Law Review

No abstract provided.

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 …

Keeping Current - Probate, Claire Hargrove, Paula Moore, William P. Lapiana, Jake W. Villanueva

Articles & Chapters

No abstract provided.

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 …

The Unconstitutionality Of State Bans On Marriage Between First Cousins, Rachel Frommer

Cardozo Law Review de•novo

A majority of jurisdictions in the United States severely limit or prohibit the right of first cousins to marry, cohabit, or have intercourse. Yet, unlike regulation of other relationships within close degrees of consanguinity, for instance between parents and children or siblings, these statutes are relatively recent additions to the marriage regulation landscape. These bans are unsupported by the commonly-cited concerns of harmful genetic or societal consequences. First cousin-marriages are, instead, popular and permitted in much of the world—as they once were in the United States. This Article demonstrates that the prohibitions against first-cousin marriages directly contravene right-to-marry jurisprudence and …

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, …

Wills Speak, Katheleen Guzman

Faculty Articles

No abstract provided.

Fits, Starts, And Finishes (Reviewing David Horton, Wills Without Signatures, 99 B.U. L. Rev. 1623 (2019)), Katheleen Guzman

Other Faculty Publications

No abstract provided.

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 …