Category Archives: Trusts & Estates
Oct 27, 2021 Michael YuTrusts & Estates
Adam J. Hirsch,
Models of Electronic-Will Legislation, San Diego L. Stud. Res. Paper No. 21-014 (June 20, 2021), available at
SSRN.
A conventional paper will must be in writing, signed by the testator, and signed by two witnesses. Statutes that authorize electronic wills (“e-wills”), by contrast, largely replicate the conventional will execution formalities in a digital format by giving legal effect to electronic documents that “are never reduced to paper.” (P. 164.) As of June 30, 2021, nine American states have enacted validating statutes for e-wills, and seven more states are considering e-will legislation. (Pp. 164, 165.) Currently, only one state, Oregon, expressly invalidates e-wills. (P. 166.) While American states are only recently beginning to address the validity of e-wills, certain foreign countries have had over two decades of experience with the concept. (P. 165.)
In Models of Electronic-Will Legislation, Professor Adam Jay Hirsch surveys the current landscape of e-will legislation in the United States and argues that states’ limited experience on the ground with e-wills renders the Uniform Law Commission’s approval in 2019 of the Uniform Electronic Wills Act (“Uniform Act”) premature. To enrich our understanding of the various options for validating e-wills, Professor Hirsch examines four competing legislative models that warrant policy and empirical analysis: (1) general validating statutes, such as the Uniform Act, which create general protocols for testators to formalize an e-will; (2) limited validating statutes, which are more limited designs for treating certain electronic records as an e-will; (3) emergency statutes, which validate only e-wills that serve a specific purpose, such as creating an estate plan during an emergency; and (4) remedial statutes, which validate e-wills that are otherwise not valid but are demonstrably intended as testamentary vehicles. (P. 165.) In thoroughly analyzing each legislative model, Professor Hirsch supports (among other things): (1) rejecting general validating legislation for e-wills because legislatures need time to develop substantive rules for e-wills, (2) enacting legislation explicitly proscribing e-wills, and (3) giving time to state legislatures to evaluate different models of e-will legislation, arguing that, because, among other things, there is currently little domestic experience with e-wills, the Uniform Electronic Wills Act is premature. (Pp. 206, 231-35.) This jot summarizes only some of the substantive rules discussed by Professor Hirsch and can only hint at the impressive depth and breadth of his analysis. Continue reading "Electronic Wills Are Just Like Paper Wills, Except When They’re Not"
Sep 28, 2021 David HortonTrusts & Estates
One of my favorite forms of academic writing is the Note or Comment. Students have an uncanny ability to make the most of issues that professors might overlook.
A case in point is Francesca Torres’s Note, Electronic Wills: COVID-19 Relief or Inevitable Trouble For California? Torres, a rising 3L at McGeorge, skillfully tells the story of California’s failed electronic will statute, Assembly Bill 1667. Continue reading "The Long, Tortured History of California’s Nonexistent Electronic Will Statute"
Aug 18, 2021 Alexander Boni-SaenzTrusts & Estates
Felix B. Chang,
How Should Inheritance Law Remediate Inequality?, 97
Wash. L. Rev. __ (forthcoming, 2022), available at
SSRN.
In United States inheritance law, we typically listen to what the person with the money wants. In his provocative essay, How Should Inheritance Law Remediate Inequality?, Professor Felix Chang challenges this bedrock principle of freedom of disposition and proposes a new vision of inheritance law that centers intergenerational economic mobility instead. By linking trusts and estates to other fields, such as business and tax law, this piece raises a host of interesting questions about whether inheritance law can truly address societal wealth inequality.
Chang starts by tracing the twin histories of inheritance law scholarship and estate tax policy. He starts in the 1970s, when the estate tax was relatively expansive, and the seminal scholarship of Professor John Langbein was just taking off. Much of Langbein’s work concerns how to improve the inheritance law system by making it more faithful to testamentary intent. However, a lot has changed since the 1970s. The group Chang describes as The Repealers—a coalition of the ultra-rich, anti-tax activists, and Republican politicians—has largely been successful in significantly weakening the estate tax, as now a significant amount of intergenerational wealth escapes untaxed. At the same time, a new vein of critical legal scholarship has arisen in the legal academy. It is more concerned with questions of distribution and notably more skeptical about promoting testamentary intent, at least when it serves to promote dynastic wealth and tax evasion. Continue reading "A New Central Principle for Inheritance Law?"
Jul 12, 2021 Kent D. SchenkelTrusts & Estates
Eric A. Kades,
A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”) (2019), available at
SSRN.
In a majority of U.S. jurisdictions, at least for purposes of trust law, the Rule Against Perpetuities (“RAP”) is dead. Yes, it’s true. In recent years most states either substantially weakened or completely eliminated their Rules Against Perpetuities. This fact has major implications for the wealthy, and more so for the ultra-wealthy. Freed from the restrictions of the RAP, those with the means and inclination can now create trusts that entrench great wealth within their families forever.
Eric Kades is concerned about this. In his second article addressing the potential repercussions of RAP repeal, A New Feudalism: Selfish Genes, Great Wealth and the Rise of the Dynastic Family Trust (“DFT”), Kades proposes a reinstatement of the RAP, this time in federal form, something he wants to call “The National Anti-Feudalism Act.” This prescription comes after he engages in a kind of predictive analysis of the imagined estate planning of the ultra-wealthy, improbably informed by his reading of evolutionary biology. According to Kades, evolutionary biology should play a “significant role” in “explaining patterns of inheritance behaviors.” Continue reading "The Case for a Federal RAP"
Jun 22, 2021 Phyllis C. TaiteTrusts & Estates
Katheleen Guzman,
Wills Speak, 85
Brook. L. Rev. 647 (2020).
Interim Dean (Dean) Katheleen Guzman explores the pre-death relevance of a will by determining whether or when a will speaks. She analyzes the legal consequences of a validly executed will before death and the potential property rights of devisees of the will. The focus and thesis of the article reminded me of the adage, “if the tree falls forest and no one hears, does it make a sound?” In translation, I thought, “Does a will make a sound (have a legal effect) if it is never probated?”
As professors, we typically teach that wills are testamentary documents that have no effect until after the death of a testator and probate by the court. Dean Guzman challenges this perspective of the law by exploring the pre-death effect of a will. First, she makes a distinction between property rights and expectancies by comparing deeds to wills. While adding a name to a deed makes a present transfer of property, adding a name to a will may transfer property in the future. Because the will does not currently transfer property, the named devisee has an expectancy, which is not the equivalent of a present or future property interest. Continue reading "If a Will is Never Probated, does it Make a Sound?"
May 14, 2021 Solangel MaldonadoTrusts & Estates
I have long been perplexed by the inconsistency between the rights of divorcing spouses which are governed by family law rules and the rights of surviving spouses which are governed by trusts and estates law. While the rules governing the distribution of property at divorce and the elective share right both claim to reflect a partnership theory of marriage, Naomi Cahn’s article, What’s Wrong About the Elective Share “Right”?, demonstrates that the elective share does not further a partnership theory, at least not in cases involving subsequent marriages, and further fails to recognize and adequately balance the interests of multiple families.
Cahn analyzed all of the elective share cases from January 2014 though January 2019 available on Westlaw and Lexis. Although the number of cases was relatively small (71 cases), the results are illuminating. First, they suggest that the overwhelming majority of surviving spouses who seek an elective share are women. Seventy-eight percent (56/71) of the claimants in Cahn’s study were women. This is not surprising because, as Cahn explains, women tend to live longer than men and to marry men who are older than they, especially in subsequent marriages (marriages other than first marriages). I was, however, intrigued by Cahn’s findings that the typical elective share case pits a stepmother against her stepchildren, or, more precisely, against her former stepchildren. Eighty percent of the cases in Cahn’s study involve subsequent spouses who challenged a will that left most of the property to the decedent’s children from a prior relationship. Continue reading "Subsequent Marriages and the Elective Share"
Apr 15, 2021 Allison Anna TaitTrusts & Estates
For those who pay attention to trust law developments, it’s clear that a vast transformation in trust law is taking place. American states like Wyoming, Alaska, Nevada, Delaware, and South Dakota are rewriting their laws to permit trusts that promise perpetual duration, maximum asset protection, and continued settlor control in order to compete with offshore jurisdictions for billions of dollars in trust business. Even for those who don’t usually take notice of trusts, trust law and the uses of the trust as a mechanism to create and perpetuate wealth inequality is becoming better understood. Katarina Pistor, for example, has aptly explained how trusts are “one of [the] most ingenious modules for coding capital” in Anglo-American law. Moreover, economists like as Emmanuel Saez and Gabriel Zucman, have increasingly started to look at the roles of trusts in building a landscape of wealth inequality.
Into this conversation step Mark Bennett and Adam Hofri-Winogradow with their new article entitled, The Use of Trusts to Subvert the Law: An Analysis and Critique. Their aim is to widen the scope of the debate and inquire into what constitutes a proper normative theory of the trust. This type of inquiry has been fraught, the authors remark, in part because the normative nature of the trust is law-subverting – a poorly kept secret but one that nobody wants to discuss in polite company. Continue reading "Trust Law Secrets, Revealed"
Mar 16, 2021 Sergio ParejaTrusts & Estates
Carla Spivack,
The Dilemma of the Transgender Heir, 33
Quinn. Prob. L.J. 147 (2020), available at
HeinOnline.
A goal of professors is, or should be, to think about legal issues that have not yet arisen but that are likely to arise in the future. By thinking of the issues before they arise, we can work to change the law before courts are forced to deal with the issue with little guidance on a case-by-case basis.
In her thought-provoking article, Professor Carla Spivack identifies the issue of a transgender heir and a bequest that did not contemplate a gender change. Specifically, she identifies a situation in which an elderly relative leaves property to “my daughter” or to “my grandsons,” but the intended recipient no longer identifies as a female, in the case of the daughter, or a male, in the case of a grandson, at the time of the elderly testator’s death. The concern is that other beneficiaries may then seek to invalidate the gift by arguing that the testator did not have a daughter or a particular grandson at the time of death. Continue reading "A Proposal to Protect Transgender Beneficiaries"
Feb 16, 2021 Katheleen GuzmanTrusts & Estates
In 1956, sociologist Erving Goffman wrote his now-classic text, The Presentation of Self in Everyday Life. Consciously or not, Goffman posited, people are invariably actors, their lives spent staging and arranging a string of performances across time and space. Were A and B to meet for a walk, their social interaction would comprise complex impression management techniques with each simultaneously actor, and audience, to the other.
Goffman’s contributions were neither startling then nor dated now. “All the world [was already] a stage” to a 17th century playwright, and as Rush admonished in the late 20th century – Limelight; Moving Pictures (1981) – “we are merely players, performers and portrayers.” Rush continued, casting the limelight as “the universal dream for those who wish to seem,” by contrast to its incompatibility to a life of authenticity, where seeming – and being – are merged. Goffman might have questioned whether such a life were even possible. But it is likely that none of them – not Shakespeare, nor Goffman, nor even Geddy Lee or Neil Peart – could have known the prescience of their observations as applied to the social media platforms on which so many live today. Shelly Kreiczer-Levy and Ronit Donyets-Kedar do, and through Better Left Forgotten: An Argument Against Treating Some Social Media and Digital Assets as Inheritance in an Era of Platform Power, they invite us to think longer and harder (or at least, differently) about what it means to propertize online presentations of self through inheritance. Continue reading "Performers and Portrayers"
Dec 3, 2020 Victoria J. HanemanTrusts & Estates
Bridget J. Crawford,
Blockchain Wills, 95
Ind. L.J. 735 (2020), available at
SSRN.
Disruptive technologies, like the Internet, often drive new social and organizational arrangements: we now enjoy global interconnectedness and an ease of communication that was previously the stuff of speculative fiction. Blockchain technology has the potential to be similarly transformative, with the Wall Street Journal characterizing blockchain as a foundational technology along the lines of electricity or the world wide web. Bitcoin was created in 2009 as a decentralized, immutable, open source method of peer-to-peer payment that uses a distributed ledger to track all transactions—and this process of recording transactions is what is known as “the blockchain.” Although blockchain technology has been bought into common parlance through its association with popular cryptocurrencies such as Bitcoin, the potential application and broad appeal of blockchain technology eclipses the purpose for which it was originally developed. Blockchain Wills by Bridget J. Crawford tackles the subject of blockchain technology as applied to will execution in an article that is unquestionably my favorite article of 2020.
The best analogy to describe blockchain is that of the tree in the forest. Every ring in the trunk of the tree is like a groove in a record and each groove memorializes important information: the age of the tree; water levels; disasters such as forest fires; rate of growth. Each ring evidences a new block of information related to a specific moment in time, and the information recorded on each ring is accessible and transparent because nobody owns the tree. Like the rings of a tree, a block on the blockchain is immutable. An earlier block is only changed through a later block. The information in each block is simultaneously public and private—the details of a transaction are recorded on the blockchain but the identity of each user is protected with a private key. The blockchain is transparent while also offering security and privacy. One may arguably have complete trust in a system that has removed human error from its process, with each transaction verified through a distributed network and the need for no intermediaries. Continue reading "The Disruptive Potential of Blockchain in the Law of Wills"
