Category Archives: Trusts & Estates
Jul 22, 2025 Adam HirschTrusts & Estates
Professor Lawrence M. Friedman has had a remarkable career. Much of his work has focused on legal history, and he has served as president of the American Society for Legal History in recognition of his distinction in that field. He also helped to pioneer empirical legal studies as a subdiscipline of scholarship. And, most fortunately for those of us who work in wills-and-trusts, he has contributed to our area as well, with a stream of articles and one book, beginning in the early 1960s and continuing until today—no fewer than six decades of superb scholarship on inheritance law.
With this extended essay, Friedman returns to the expansive style of some of his early work in the field. His subject is the lengths to which people will go to leave an eternal mark upon the world. As Friedman concludes, it is a fanciful quest. Try as one might, no one can defy the laws of nature—and nothing lasts forever. Nevertheless, in a variety of ways explored in this essay, people keep on trying. Continue reading "Dead Hand Control"
Jun 24, 2025 Reid WeisbordTrusts & Estates
When legal scholars identify and analyze a social problem, they usually conclude with law reform recommendations for potential adoption by courts or legislatures. In The Dark Side of Codifying U.S. Trust Law, Professor Thomas Gallanis reboots that familiar template by reversing the inquiry: This superb article evaluates how a reformer’s choice of institutional forum—court versus legislature—can impact the effectiveness of legal intervention. Gallanis presents an intriguing case study that documents the plight of several well-intended trust law reforms which Gallanis contends inadvertently created fertile ground for legislative capture by special interests. Gallanis describes how the political influence of special interests ultimately persuaded state legislatures to alter model legislation in ways that undermined the reformers’ original policy goals.
The article begins by surveying the modern trend of American trust law toward “codification,” which refers to the replacement of traditional judicial doctrines with statutory reforms. Model legislation drafted by the Uniform Law Commission has proven especially impactful. Notable examples of codification include the Uniform Trust Code (2000) (adopted in 35 states), the Uniform Powers of Appointment Act (2013), the Uniform Trust Decanting Act (2015), the Uniform Directed Trust Act (2017), and the updated Uniform Fiduciary Income and Principal Act (2018). As Gallanis explains, “U.S. trust law now is heavily statutory.” (P. 287.) Continue reading "A Minimalist Theory of Trust Law Codification"
Jun 10, 2025 Sarah WaldeckTrusts & Estates
In The Curious Case of the James Brown Estate, Lee-ford Tritt explores how certain provisions of the Copyright Act of 1976 can upend an artist’s estate plan. Professor Tritt makes a persuasive case for legal reform and documents a messy disconnect between the fields of copyright law and estates law. This disconnect is particularly unfortunate because the havoc-wreaking provisions of the Copyright Act were enacted to help ensure that artists are fairly compensated for their creations. Congress could not have intended a loss of testamentary freedom—and in some cases, prolonged and expensive estate litigation—to be the price artists pay for this protection.
Professor Tritt writes that many copyright experts are unaware of relevant estate planning techniques, and that many estates experts are unaware of the termination rights provided in the Copyright Act. (P. 778.) Prior to reading Professor Tritt’s article, I fell into the second category. The same may be true of some of the readers of this review, so let’s start with the Copyright Act of 1976. Continue reading "The Conflict Between Copyright Law and Donative Freedom"
May 26, 2025 Allison Anna TaitTrusts & Estates
Masayuki Tamaruya,
Trust Law and Colonialism,
in The Oxford Handbook of Comparative Trust Laws (Adam S. Hofri-Winogradow et al. eds, forthcoming), available at
SSRN (Sept. 1, 2024).
Tethered to and inextricably linked with the absence or decline of democratic governance, there has always been empire. Empires rise and fall, as they say, but the imperial impulse is perennial and new iterations of old empires emerge with dismal regularity, showing us that imperial formations are hard to erase.
The relationship between empire and trust law is one that is gaining increased attention, particularly in the context of offshore financial centers and the inescapable historical force of British colonialism. Popular books like Butler to the World and, more recently, The Hidden Globe have brought the topic of colonialism into a wider conversation about wealth inequality and legal imperialism. Both historians and sociologists have dug into the subject, with excellent results like those of Vanessa Ogle and Brooke Harrington. And legal scholars are also joining the conversation, talking about colonial aftermaths and the ghosts of colonialism that persist in our systems of wealth transfer.
A new contribution to the literature—and our understanding—of trust law and colonialism is Masayuki Tamaruya’s chapter in the forthcoming Oxford Handbook of Comparative Trust Laws, aptly entitled Trust Law and Colonialism. Tamaruya takes the reader on a historical adventure through diverse empires and their spheres of influence. Tamaruya focuses in particular on the British empire, the Americas, and Asia explaining that “distinct patterns of colonialism naturally engender different dynamisms in using trust and trust laws.” Continue reading "Trust Law and the Tides of Colonialism"
Apr 25, 2025 Michael YuTrusts & Estates
Jonathan G. Blattmachr writes, “This Article primarily will deal with how the wealth transfer tax system might be used to provide reparations for descendants of people enslaved in the United States as part of the system of chattel slavery. It will not discuss other potential reparations such as for Native Americans among others.” (P. 297, dagger note.) The term “wealth transfer tax system” refers to the estate, gift, and generation-skipping transfer taxes imposed by Subtitle B of Title 26 of the United States Code. (P. 297, note 1.) Blattmachr’s specific proposal is that “a refundable estate tax credit (perhaps, up to a certain limit of wealth or using a scaled credit) could be allowed for the estates of descendants of enslaved persons.” (P. 309.) Blattmachr contributes to the literature of wealth transfer taxes, wealth inequality, racial wealth disparity, and reparations with his thoughtful proposal.
The core of Blattmachr’s proposal is the “refundable estate tax credit.” For any decedent dying in 2024, the estate tax credit currently stands at $5,389,800. (This jot focuses on the estate tax credit of $5,389,800 because Blattmachr’s article focuses on the estate tax credit—often, discussion centers on the estate tax exemption amount ($13,610,000 for a decedent dying in 2024), which is, generally, the amount that can be transferred estate tax-free to persons other than one’s spouse and other than to charities.) That relatively high estate tax credit is slated to sunset at the end of 2025 and revert to a lower estate tax credit unless Congress enacts new legislation. Before we discuss the mechanics and merits of a refundable estate tax credit, we should note that Blattmachr does not propose unequivocally that $5,389,800 be refunded to each estate of descendants of enslaved persons. Instead, Blattmachr explains that the amount of the refundable credit could be limited or scaled. (P. 309.) Continue reading "A Refundable Estate Tax Credit Might Promote Fairness and Reduce Inequality"
Mar 28, 2025 Katheleen GuzmanTrusts & Estates
James Toomey,
Executor Discretion, 110
Iowa L. Rev. __ (forthcoming, 2025), available at
SSRN.
I hereby grant my executor the power to alter my will to reflect my most likely recent intent.
Notwithstanding the mysteries that can attend multiple aspects of estate planning, some things—such as the precepts that deeds are not wills, revocation is permitted, and takers must survive—seem plain. The near-absolute supremacy of Testator Intent fits within this rough set of axioms. Cases instruct that, elusive though it may be, it is that intent alone that matters, and not that of any judge, jury, or creditor; disappointed spouse or disinherited heir. Indeed, the principle has become the rhetorical stuff of earth and sky both, with the Testator’s intent cast as the cornerstone, the lodestar, the keystone, the polestar, the crown jewel, the very light that guides. Less often questioned is just how far and brightly that North Star actually shines, and at what temporal and comparative remove.
Professor James Toomey seeks consistency and tests fidelity to Testator Intent in Executor Discretion, admonishing that lawmakers should be every bit as aggrieved by the effectuation of will terms that reflect expired intent as reformers have been, for decades, about the rejection of intended wills on formalistic technicalities. “Whenever a will is probated [that . . .] no longer represents what the testator would have wanted, wills law fails on its own terms.” (P. 1.) If and where so, the autonomy, identity, and freedom that testamentary intent captures also fail, and stars fall to earth. Continue reading "Discretioners"
Feb 24, 2025 Victoria J. HanemanTrusts & Estates
Would you rather have government decisions made by artificial intelligence or by a presidential administration that you loath? The concept of the villainous AI overlord became part of the zeitgeist with the Terminator movie franchise, but the reality is that the greatest threat to the future of humanity may be itself. AI decision-making has demonstrated remarkable reliability and efficiency, often outperforming human decision-making in various domains. The ability of AI to quickly process immense amounts of data, identify patterns, and make decisions based on objective analysis minimizes the impact of biases and emotions that can cloud human judgement. As AI technology continues to progress, there is a growing possibility that AI may eventually displace humans in governing and decision-making positions. It is estimated that AI may soon replace 300 million jobs, or 9.1% of jobs worldwide. Jobs with a higher level of exposure to AI tend to be in higher paying fields, where education and critical reasoning skills are required. Prof. Lee-ford Tritt’s article, The Use of AI-Based Technologies in Arbitrating Trust Disputes, considers whether it is appropriate or feasible to supplant or support human decision-making with AI technology in the context of trust litigation.
This is less science fiction and more science fact, as China has already started to use AI-based courts to resolve legal disputes. The central question undergirding Prof. Tritt’s examination is the degree to which the experience of being human should control or guide dispute resolution. AI has several possible applications to arbitration, generally. It may assist arbitrators in the performance of their job, with tasks such as case management and fact gathering. AI may also assist with decision-making. One study demonstrated that artificial intelligence is able to predict the vote of individual Supreme Court justices with more than 70% accuracy, which far exceeds the reliability of human predictions. AI is less accurate with predictions involving factually similar cases, which may mean either that AI is less likely to identify legal nuances or that human factfinders are inconsistent in the application of the law. If the latter, we may find that AI decision-making is more equitable because of the precision with which the technology applies the law. We may also find that running our decisions through AI to ensure the fairness of the decision is a useful and supportive tool. Continue reading "Artificial Intelligence as Arbitrator"
Jan 27, 2025 Solangel MaldonadoTrusts & Estates
Fetal personhood statutes—laws that grant the same legal protections to embryos as to live children—have been the subject of significant discussion since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal constitutional right to abortion. The impact of these laws was magnified by the Alabama Supreme Court’s recent decision in LePage v. Ctr. for Reprod. Med., P.C., holding that frozen embryos are children for purposes of Alabama’s Wrongful Death of a Minor Act and must be treated the same as children born alive regardless of “developmental stage, physical location, or any other ancillary characteristics.” While the impact of fetal personhood statutes on abortion, contraception, and assisted reproduction may be rather obvious, their effects on trusts and estates law or tax law are more speculative. Yet, this is the focus of Bridget Crawford’s and her students’ (Alexis C. Borders and Katherine Keating) article, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, which demonstrates how fetal personhood laws have the potential to destabilize the transmission of property at death, specifically the rules governing intestacy, trust administration, trust duration, and the generation-skipping wealth transfer tax.
The article demonstrates how fetal personhood statutes might disrupt settled understandings of who may inherit under intestacy laws. It points out that if an embryo is treated as a person under the rules of intestacy, then it has the same rights to inherit from a parent and through a parent (from a grandparent, aunt or uncle, for example) as a living child. The article illustrates how such a right could present challenges when distributing an intestate decedent’s estate since it might require determining whether any surviving family members had pregnant partners when the decedent died. It explains:
[A]ssume that Helen, a widow, dies intestate survived by her adult daughter Jane and her adult son Joe. At the time of Helen’s death, Joe’s partner is pregnant with their first child. Just a few days after Helen dies, Joe himself is killed in a tragic accident. Helen’s intestate heirs are Jane and the zygote-embryo-fetus in gestation. Unless the personal representative inquires whether Joe’s partner was pregnant, the personal representative might erroneously believe that Jane is Helen’s sole surviving heir and distribute the entire estate to Jane. (P. 1178.) Continue reading "Constraining the Reach of Fetal Personhood Statutes"
Dec 9, 2024 David HortonTrusts & Estates
Adam J. Hirsch,
Beyond Privity of Blood: Intestacy and Charity, 76
UC L.J. __ (forthcoming, 2025), available at
SSRN (March 16, 2024).
Adam Hirsch’s new article, Beyond Privity of Blood: Intestacy and Clarity, argues that intestacy statutes should sometimes give a share of the decedent’s property to charity. To be honest, when I read his abstract, I found the idea far-fetched. But Professor Hirsch is one of the most-cited scholars in the field for a reason. By the time I’d finished scrolling through his draft, I’d seen the appeal of his creative thesis.
Calls for intestacy reform are common. Some authors have suggested that intestacy laws, which typically favor spouses and children, no longer reflect what most decedents want. Others have explored the idea of “personalizing” distributions based on factors such as the decedent’s gender, age, or lifestyle choices. Both proposals urge lawmakers to use empirical evidence to update the rudimentary assumptions that underlie intestacy regimes. Continue reading "Charities as Heirs"
Nov 29, 2024 Sergio ParejaTrusts & Estates
Although my law practice prior to entering academia focused on representing the uber wealthy, my recent interests focus more on preserving wealth in families of limited means. Professor Danaya Wright has written a thought-provoking article dealing with this issue.
Part I of Professor Wright’s article compares the stories of two decedents from Florida, Arthur Paulson and Mary Artis. Arthur and Mary’s stories highlight systemic inequalities in the preservation and transfer of wealth for working-class families. Arthur faced significant wealth erosion due to personal setbacks and economic downturns, but he was able to overcome some of those obstacles during life by tapping into his home equity by refinancing his home. In contrast, Mary never tapped into her home equity during life and thus managed to preserve substantial illiquid wealth, but the full value of her accumulated savings did not pass on to her heirs because they did not probate the property after Mary’s death. The latter outcome is unfortunate, but often happens because probate is viewed by laypersons as a complex and expensive legal process. Reforms like the Uniform Real Property Transfer on Death Act (URPTODA) and Uniform Partition of Heirs Property Act (UPHPA) improve the situation, but they do not fix the problem. Continue reading "A Proposal to Save Property for Heirs of Decedents of Modest Wealth"
