Category Archives: Trusts & Estates
Apr 15, 2024 Carla SpivackTrusts & Estates
In Remedying Injustices for Black Land Loss: Taking the Next Step to Protect Heirs’ Property, Professor Phyllis Taite offers an original and effective solution to the problem of fractionation of Black-owned land, a problem that has caused drastic Black land loss and that many scholars and legislators have tried to solve. Taite proposes a novel use of trusts to prevent ownership of heirs’ property from fractionating, unlike other remedies that retroactively seek to unwind the harmful consequences of fractionation after the damage has been done. It’s an original and promising proposal.
Heirs’ property is land that has passed through multiple generations without going through probate: fractionation occurs because each generation of heirs acquires the land as tenants in common, the default tenancy for property. As more and more owners divide the land into smaller and smaller shares at each generation, ownership of the property fractionates. Taite points out how this process leads to multiple problems, including unclear title, disagreements about disposition, and land loss through forced partition sales. Continue reading "Trusts as a Solution to Black Land Loss"
Mar 25, 2024 Reid WeisbordTrusts & Estates
David Horton,
Probate Standing, 122
Mich. L. Rev. __ (forthcoming 2024), availible at
SSRN (August 7, 2023).
Probate cases often arise from a complicated web of relationships between the decedent and family members, friends, caretakers, fiduciaries, and other parties. When the facts of a given case are especially complex, it is sometimes helpful to draw a visual diagram of the various relationships to better understand the dispute’s major fault lines: Whose interests are aligned? Whose interests are adverse? Which parties, if any, represent the interests of non-parties? Which parties are relevant to the dispute but did not enter an appearance? And finally, did any party enter an appearance but lack a legally sufficient connection to the dispute? In Probate Standing, Professor David Horton takes a deep dive into the latter question by expertly examining the important, though often overlooked, gatekeeping doctrine of probate standing. This Article breaks new ground, first, by identifying incoherent branches of the standing doctrine that undermine probate law’s bedrock policy of honoring testamentary intent and, second, by proposing sensible, minimally invasive reforms to clarify the standing rules in probate litigation.
The Article begins with a historical survey of Anglo-American common law from which Horton distills two alternative theories of probate standing: The “property theory” confers standing on anyone who can demonstrate a pecuniary stake in the probate matter. The “status theory,” in contrast, confers probate standing on intestate heirs to contest a decedent’s will. Horton explains that both theories are flawed. Under the property theory, for instance, an undue influencer can unfairly deprive a testator’s intestate heirs of standing to contest the will’s validity by procuring a series of unduly influenced wills because the contestant would have to (but might be unable to) contest every serial will to acquire a pecuniary interest as an intestate heir. Conversely, the status theory grants any intestate heir standing to contest a will’s validity even if the testator devised more than an intestate share to the heir, thus creating a judicial forum for estate litigation potentially motivated by emotion or revenge rather than by rational economic self-interest. Continue reading "Clarifying the Doctrine of Probate Standing"
Feb 12, 2024 David HortonTrusts & Estates
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners, available at SSRN (Jan. 20, 2023).
- Yair Listokin & John Morley, A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries, available at SSRN (Jan. 20, 2023).
Some of the most important rules in inheritance law may be out of date. Intestacy statutes distribute the assets of most decedents in the U.S. Because they provide an estate plan by default, they’re supposed to reflect majoritarian preferences. Many such laws, including the 1990 amendments to the Uniform Probate Code (“UPC”), favor ties of marriage and blood. Yet American families are rapidly evolving. Unmarried cohabitation is on the rise. Likewise, skyrocketing rates of divorce and remarriage mean that one child in six now lives in a “blended” family. Arguably, these shifts cast doubt on the Leave It to Beaver conservativism of traditional intestacy regimes.
Unfortunately, the intuition that intestacy statutes are archaic has long been just that—an intuition. There’s little reliable data about what people want to have happen to their property after they die.
Enter Yair Listokin and John Morley, who have posted a pair of sophisticated empirical studies about dispositive preferences on Social Science Research Network: A Survey of Preferences for Estate Distribution at Death Part 1: Spouses and Partners and A Survey of Preferences for Estate Distribution at Death Part 2: Children and Other Beneficiaries. Continue reading "Rich Data About Dispositive Preferences"
Jan 24, 2024 Solangel MaldonadoTrusts & Estates
Brittany L. Deitch,
Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, 95
Univ. of Colo. L. Rev. __ (forthcoming 2024), available at
SSRN (Mar. 20, 2023).
Criminal law scholars and estates and trusts scholars do not usually travel in similar circles. They do not typically attend the same conferences or read each other’s work. With the exception of the slayer rule, criminal law might even seem irrelevant to estates and trusts law. Yet, Brittany Deitch’s eye-opening article, Estate to State: Pay-To-Stay Statutes and the Problematic Seizure of Inherited Property, illustrates how criminal law and inheritance law intersect to deny currently and formerly incarcerated individuals the ability to inherit, thereby magnifying the racial and economic inequalities created by either criminal law or inheritance law alone.
Deitch’s article exposes the injustices of pay-to-stay laws—statutes that allow the government to seek reimbursement from currently or formerly incarcerated individuals for incarceration-related costs, ranging from medical care and transportation to room and board. Although forty-seven states have some form of pay-to-stay requirement, Deitch focuses on states that expressly allow the government to recover these costs from an inheritance, or that are silent on whether the government may seize inherited assets. In these states, the government may seize an incarcerated (or formerly incarcerated) person’s inheritance to recoup the costs it expended in connection with the distributee’s incarceration. Deitch argues that seizure of an inheritance in these cases infringes the decedent’s testamentary freedom and undermines intestacy law’s goal of preventing escheat. As she explains, a testator would not want assets intended for the benefit of their currently or formerly incarcerated family member or loved one to go to the state. When the decedent is intestate, she observes, seizure of property that would otherwise pass to heirs circumvents intestacy law’s aim of averting escheat whenever possible. Continue reading "Criminal Law Meets Estates Law: Incarceration and Inheritance"
Jan 9, 2024 Alexander Boni-SaenzTrusts & Estates
We stand at the precipice of a major transfer of wealth: in the coming years, trillions of dollars will pass through the inheritance system to the next generation from millions of decedents. Potential beneficiaries may be tempted to engage in wrongdoing to alter or accelerate these transfers to their own benefit. In Crimes Against Probate, Kevin Bennardo and Mark Glover focus on one such type of wrongdoing: interference with wills. Whether it is through undue influence or fraud, will forgery or will suppression, the inheritance system must deal with this threat to the testator’s donative wishes.
Bennardo and Glover argue that the current legal regime does not adequately deter this type of misconduct, and they provide two major contributions to the literature. First, they offer a clever reconceptualization of the misconduct at issue as evidentiary rather than proprietary in nature. Second, they supply a concrete reform proposal, which is a new criminal offense of intentional or willful interference with probate. Scholars of both criminal law and trusts and estates will have much to learn from this cross-cutting piece of legal scholarship. Continue reading "Crimheritance Law?"
Nov 28, 2023 Kent D. SchenkelTrusts & Estates
Adam S. Hofri-Winogradow,
The Irreducible Cores of Trust Obligations, 139
L.Q. Rev. 311 (2023), available at
SSRN, (May 30, 2023).
Trust settlors transfer gifts to trustees, but intend to benefit only the trust’s beneficiaries. So trust law ensures that trustees, who legally “own” trust property, are constrained in their actions by legal rules and fiduciary standards. But trusts are also malleable, subject to customization to achieve a settlor’s particular purposes. And that is where, according to Adam Hofri-Winogradow, in his article, “The Irreducible Cores of Trust Obligations,” a trustee’s obligations rest on “an enduring contradiction.” Hofri-Winogradow points out that trustees’ burdens include both duties and liabilities, but that trust settlors sometimes either explicitly exclude certain of these in the trust instrument, or “undermine” them by giving nonfiduciary third parties the power to direct actions of the trustee.
It is easy to see why a complete elimination of a trustee’s legal constraints would by extension eliminate the trust as a useful mechanism. Indeed, a trust without any fiduciary constraints is not a trust at all, it’s simply an equitable charge. But what trustee obligations are essential to the nature of a trust? This is a subject of considerable debate in the U.S. and abroad. Hofri-Winogradow focuses on this “irreducible core” of a trustee’s obligations, and maintains that attempts to find a single essential core are unstable within and across global jurisdictions. Given the many jurisdictions and contexts in which trusts are used, his article represents a fresh perspective on this issue. Continue reading "Towards resolving a Contradiction of Trust law"
Nov 9, 2023 Goldburn MaynardTrusts & Estates
The modernization of probate codes has been a slow and fraught proposition. States have long set different requirements for formalizing wills. To this day there are still states that require strict compliance with all formalities, including that a will be in writing, that it be signed, and that it also be signed by two witnesses. The COVID-19 pandemic forced legislators into an uncomfortable and reluctant embrace of the twenty-first century. In his recent article, Professor Richard F. Sorrow tracks the unprecedented if clumsy implementation of two controversial reforms of traditional wills: remote attestation and electronic wills.
For centuries, in both England and the United States, the steps required to execute a will had to be followed precisely. A small technicality or flaw could invalidate a will. Perhaps a witness was not in the room at the same time as the other witness or the testator signed the will in the wrong place. As Storrow underscores, society’s main concern was distinguishing between authentic and fraudulent wills. England’s influential Wills Act of 1837 attempted to get it right. To ensure that the will represented the wishes of the testator, without interference from anyone else, courts construed the Act to require strict compliance with all of the formalities. This weeded out many fraudulent wills but also some authentic ones. In fact, the application of strict compliance sometimes led to dispositions that were very different from those the testator intended. Continue reading "Socially Distanced Wills"
Oct 26, 2023 Phyllis C. TaiteTrusts & Estates
Brenda D. Gibson,
The Heirs’ Property: Racial Caste Origins & Systemic Effects in the Black Community, __
CUNY L. Rev. __, (forthcoming, 2023) available at
SSRN (Aug. 31, 2022).
Professor Gibson provides a unique look at Black land loss through heirs’ property in the Low Country, an area located on the southern tip of South Carolina which includes the Sea Islands. Her paper concludes that “heirs’ property is more a product of the deeply entrenched racial caste system of racist governmental processes and laws that have militated against Black land ownership and wealth.” As such, she indicates that landownership has been a source of wealth mobility for some, but that intestacy succession to property has caused wealth to decline in the Low Country, disproportionately for Black landowners.
After a brief historical review of the obstacles and hardships of Black landownership since the Reconstruction era, Professor Gibson analyzes how systemic racism has impacted Black land loss in the South, specifically in the Low Country. She begins by explaining how farming was the primary source of income for many Black landowners in Low Country. By the end of the 20th century, however, Black farmers had lost over ninety percent of their land. She attributed these substantial losses to government action, commercial developers, and the complicated nature of heirs’ property. Continue reading "A Path for Wealth and Cultural Restoration for the Gullah-Geechee Residents of the Low Country"
Sep 4, 2023 Gerry W. BeyerTrusts & Estates
Many of us love and cherish our pets and want to ensure their safety even after we are gone. Some may wish to make specific accommodations for their pets via inter vivos or testamentary pet trusts. Others may “keep it simple” by merely bequeathing their non-human companions to someone they know and trust. But what happens when owners leave provisions in their wills asking for their pets to be euthanized humanely after the owners die? While most courts in the past have refused to enforce these provisions, their justifications vary from the testator’s “true” intent to public policy and the anti-waste doctrine. Kaity Y. Emerson and Kevin Bennardo provide a thoughtful analysis of some of these justifications. They ultimately conclude that the anti-waste doctrine provides the most straightforward argument against dead-hand control. They discuss background on the legal status and value of animals, dead-hand control and its limitations, relevant caselaw, and finally provide their advice on how this issue should be handled in the future.
Pets have consistently been recognized as the personal property of their owners, who are free to treat them as they wish, barring animal cruelty. Courts apply this concept by allowing claims for wrongful death or negligent harm to a pet. In these cases, an owner may recover damages stemming from economic harm, but may not recover for emotional damages or loss of companionship. While courts disagree on the amount of recovery for such charges, even mixed-breed animals can yield some amount of recovery. Like tort law, bankruptcy law also recognizes animals as property. A companion animal may be listed as an asset and is given an exemption, allowing debtors to retain their pets in bankruptcy proceedings. By looking at other areas of law, we see clearly that animals have value as their owner’s personal property. Continue reading "Protecting Pets From the Death-Hand"
Jul 20, 2023 Reid WeisbordTrusts & Estates
Some cultures revere their elders. Ours does not. Ageism is illegal in certain contexts but remains far too prevalent in modern discourse, often imbued with sexism. Elder abuse and financial exploitation of older persons are on the rise. Even respected voices from the medical community have begun to question the social utility of longevity: At age 57, bioethicist Ezekiel Emmanuel controversially declared that he would refuse life-extending medical treatment in his elder years because he does not believe most people “continue to be active and engaged and actually creative past 75.” Dr. Emmanuel acknowledged the existence of outliers, but his gloomy claim about elder productivity is certainly contestable. Surely you can think of senior “outliers” in your own life. My mother, for instance, began practicing law in 1970 and still enjoys maintaining a full caseload with enough work to overwhelm any first-year associate. I clerked for similarly inspirational federal judges who heard and continue to hear cases in their late 80s. But even conceding that productivity declines with age, I hope most readers would agree that respect, dignity, and fairness under the law should never hinge on one’s economic or creative output.
In Family Law for the One-Hundred-Year Life, Naomi Cahn, Clare Huntington, and Elizabeth Scott cast away tired platitudes about the elderly by presenting a bold new vision for autonomy and care in old age. The Article breaks new ground by unflinchingly confronting family law’s failure to serve the needs and preferences of elderly populations, including the growing number of centenarians. The authors argue that “the fundamental problem—conceptually and practically—is that family law is designed for younger people, facilitating child rearing and helping spouses pool resources to build a life together.” That design, in turn, overlooks critical family dynamics that change in old age, i.e., when parent-child caregiving roles reverse, when older persons spend down their savings rather than accumulate new wealth, and when single seniors enter new companionships with estate plans that would be frustrated by marital defaults that presume “financial interdependence.” Continue reading "Inheritance Law for Centenarians"
