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Index
List of Illustrations
Preface
Acknowledgments
Chapter 1 INTRODUCTION: FREEDOM OF DISPOSITION
A. The Power to Transmit Property at Death
Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law
1. Freedom of Disposition and the Dead Hand
Shapira v. Union National Bank
2. Justifying Freedom of Disposition
a. The Donor’s Prerogative
Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead Hand
Daniel B. Kelly, Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications
b. Concentrations of Wealth
Wojciech Kopczuk, What Do We Know About the Evolution of Top Wealth Shares in the United States?
Edward N. Wolff & Maury Gittleman, Inheritances and the Distribution of Wealth or Whatever Happened to the Great Inheritance Boom?
c. Human and Cultural Capital
Stephen J. McNamee & Robert K. Miller, Jr., The Meritocracy Myth
d. A Question of Tax Policy?
3. From Feudalism to a Constitutional Right
4. Posthumously Created Property Rights
Shaw Family Archives Ltd. v. CMG Worldwide, Inc.
B. The Mechanics of Succession
1. Probate and Nonprobate Property
2. Probate Terminology
3. Probate Administration
a. Opening Probate and Choice of Law
b. Common Form and Solemn Form Probate
c. Formal and Informal Probate
d. Supervised and Unsupervised Administration
e. Barring Creditors
f. Closing the Estate
4. Can Probate Be Avoided?
C. Professional Responsibility
1. Duties to Intended Beneficiaries
Simpson v. Calivas
2. Joint Representation
A. v. B.
Chapter 2 INTESTACY: AN ESTATE PLAN BY DEFAULT
A. An Estate Plan by Default
1. Why Do So Many People Die Intestate?
2. The Purpose of Intestacy Statutes
3. Heirship and the Expectancy of an Heir Apparent
4. Applicable Law and the Uniform Probate Code
Uniform Probate Code §§ 2-101, 2-102, 2-103, 2-105
B. The Structure of Intestate Succession
1. Surviving Spouse
a. The Spouse’s Share
b. Unmarried Cohabiting Partners
c. The Problem of Simultaneous Death
2. Descendants
a. Representation
b. Representation in Wills and Trusts
3. Ancestors, Collaterals, and Others
a. Parents
b. Other Ancestors and Collaterals
c. Laughing Heirs
d. Stepchildren and In-Laws
e. Half-Bloods
f. Escheat
4. Disinheritance by Negative Will
C. Transfers to Children
1. Adopted Children
a. Formal Adoption
Hall v. Vallandingham
b. Adult Adoption
c. Adoption and Wills and Trusts
Minary v. Citizens Fidelity Bank & Trust Co.
d. Equitable Adoption
O’Neal v. Wilkes
2. Posthumous Children
3. Nonmarital Children
4. Reproductive Technology and New Forms of Parentage
a. Posthumously Conceived Children
Woodward v. Commissioner of Social Security
b. Posthumously Conceived Children and Wills and Trusts
c. Surrogacy and Opposite-Sex Married Couples
d. Assisted Reproduction and Same-Sex Couples
e. The 2008 Amendments to the UPC
5. Advancements and Hotchpot
a. Advancements at Common Law
b. Hotchpot
c. Advancements in Modern Law
Uniform Probate Code § 2-109
6. Guardianship and Conservatorship of Minors
a. Guardian of the Person
b. Property Management Options
D. Bars to Succession
1. The Slayer Rule
In re Estate of Mahoney
The Unworthy Heir
2. Disclaimer
a. From Common Law to Statutory Law
b. Avoiding Taxes
c. Avoiding Creditors
d. Disclaimers to Qualify for Medicaid
Chapter 3 WILLS: FORMALITIES AND FORMS
A. Execution of Wills
1. Attested Wills
a. The Core Formalities
Uniform Probate Code § 2-502
b. The Functions of Formalities
John H. Langbein, Substantial Compliance with the Wills Act
c. The Strict Compliance Rule
Stevens v. Casdorph
The Meaning of “Presence”
The “Signature” Requirement
d. Interested Witnesses and Purging Statutes
(1) From Disqualification to Purging
(2) The Trend Away from Purging
e. Model Execution Ceremony
The Self-Proving Affidavit
Safeguarding a Will
f. Ad Hoc Relief from Strict Compliance
In re Pavlinko’s Estate
In re Snide
g. The Substantial Compliance Doctrine
The Unfulfilled Promise of Substantial Compliance
From Substantial Compliance to Harmless Error: Australia’s National Experiment
h. The Harmless Error Rule
Uniform Probate Code § 2-503
In re Estate of Hall
In re Probate of Will and Codicil of Macool
Writings, Documents, and Electronic or Digital Wills
In re Estate of Javier Castro
2. Notarized Wills
Lawrence W. Waggoner, The UPC Authorizes Notarized Wills
3. Holographic Wills
a. Discerning Testamentary Intent
Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers
In re Kimmel’s Estate
b. Preprinted Will Forms
In re Estate of Gonzalez
c. Signature and Handwriting
(1) Signature
(2) The Extent of the Testator’s Handwriting
d. Extrinsic Evidence
In re Estate of Kuralt
B. Revocation of Wills
1. Revocation by Writing or by Physical Act
Uniform Probate Code § 2-507
a. Express and Implied Revocatory Writings
b. Formality in Revocation by Writing or Physical Act
Thompson v. Royall
c. Presumption of Physical Act Revocation
Harrison v. Bird
Lost Wills and the Presumption of Revocation
d. Harmless Error in Revocation
In re Estate of Stoker
e. Partial Revocation by Physical Act
2. Dependent Relative Revocation
LaCroix v. Senecal
Restatement (Third) of Property: Wills and Other Donative Transfers § 4.3
3. Revival of Revoked Wills
Uniform Probate Code § 2-509
4. Revocation by Operation of Law
a. Divorce
Uniform Probate Code § 2-804
b. Marriage
c. Birth of Children
C. Components of a Will
1. Integration
In re Estate of Rigsby
2. Republication by Codicil
3. Incorporation by Reference
a. Existing Writings
Uniform Probate Code § 2-510
Clark v. Greenhalge
b. Subsequent Writings and Tangible Personal Property
Uniform Probate Code § 2-513
4. Acts of Independent Significance
Uniform Probate Code § 2-512
D. Contracts Relating to Wills
1. Contracts to Make a Will
Uniform Probate Code § 2-514
2. Contracts Not to Revoke a Will
Keith v. Lulofs
Chapter 4 WILLS: CAPACITY AND CONTESTS
A. Capacity to Make a Will
1. Mental Capacity
In re Wright’s Estate
Wilson v. Lane
2. Insane Delusion
In re Strittmater’s Estate
Breeden v. Stone
B. Undue Influence
1. What Is Undue Influence?
2. Undue Influence in the Cases
In re Estate of Sharis
Presumptions and Burden Shifting in Undue Influence Cases
In re Will of Moses
Lipper v. Weslow
Bequests to Lawyers and Fiduciary Appointments
3. Planning for and Avoiding a Will Contest
a. Warning Signs
b. Strategies
C. Duress
Latham v. Father Divine
Interference with Inheritance, Restitution and Unjust Enrichment, and Constructive Trust
D. Fraud
E. Tortious Interference with an Expectancy
Schilling v. Herrera
Chapter 5 WILLS: CONSTRUCTION
A. Mistaken or Ambiguous Language in Wills
1. Plain Meaning and No Reformation
Mahoney v. Grainger
In re Estate of Cole
2. Ad Hoc Relief for Mistaken Terms
Arnheiter v. Arnheiter
In re Gibbs’ Estate
3. Openly Reforming Wills for Mistake
Uniform Probate Code § 2-805
In re Estate of Duke
B. Death of Beneficiary Before Death of Testator
1. Lapsed and Void Devises
In re Estate of Russell
2. Antilapse Statutes
Uniform Probate Code § 2-605
a. Presumed Intent
b. Scope
c. Default Rules
d. Words of Survivorship
Ruotolo v. Tietjen
3. Class Gifts
a. What Is a Class?
Restatement (Third) of Property: Wills and Other Donative Transfers §§ 13.1, 13.2
Dawson v. Yucus
b. Application of Antilapse Statutes to Class Gifts
4. Summary Diagram
C. Changes in Property After Execution of Will
1. Ademption by Extinction
In re Estate of Anton
Uniform Probate Code § 2-606
2. Stock Splits and the Problem of Increase
3. Satisfaction of General Pecuniary Bequests
4. Exoneration of Liens
5. Abatement
Chapter 6 TRUSTS: CHARACTERISTICS AND CREATION
A. The Trust in American Law
1. Origins of the Trust
2. Sources of Law
Max M. Schanzenbach & Robert H. Sitkoff, The Prudent Investor Rule and Trust Asset Allocation: An Empirical Analysis
3. Vocabulary, Typology, and Illustrative Uses
4. Bifurcation of Ownership
5. A Trust Compared with a Legal Life Estate
a. Legal Life Estate
b. Equitable Life Estate—A Trust
6. Business Trusts
7. Foreign Trust Law
B. Creation of a Trust
1. Intent to Create a Trust
a. Testamentary Trust
b. Deed of Trust
Jimenez v. Lee
c. Declaration of Trust
Hebrew University Ass’n v. Nye (1961)
Hebrew University Ass’n v. Nye (1966)
2. Trust Property
Unthank v. Rippstein
3. Ascertainable Beneficiaries
a. The Beneficiary Principle
Clark v. Campbell
b. Pet and Other Noncharitable Purpose Trusts
In re Searight’s Estate
4. A Written Instrument?
a. Oral Inter Vivos Trusts of Personal Property
Uniform Trust Code § 407
In re Estate of Fournier
b. Secret Testamentary Trusts and the Wills Act
Olliffe v. Wells
c. Oral Inter Vivos Trusts of Land and the Statute of Frauds
Chapter 7 NONPROBATE TRANSFERS AND PLANNING FOR INCAPACITY
A. The Rise of Nonprobate Succession
John H. Langbein, Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers
B. Revocable Trusts
1. The Wills Act and a Present Transfer
2. Abandoning the Present Transfer Fiction
Uniform Trust Code § 603
Fulp v. Gilliland
3. Revoking or Amending a Revocable Trust
Uniform Trust Code § 602
Patterson v. Patterson
4. The Subsidiary Law of Wills
State Street Bank and Trust Co. v. Reiser
Clymer v. Mayo
5. Revocable Trusts in Contemporary Practice
a. The Pour-Over Will
b. Statutory Validation of a Pour Over into an Unfunded Revocable Trust
c. Deathtime Considerations
d. Lifetime Considerations
C. The Other Will Substitutes
1. Life Insurance
Cook v. Equitable Life Assurance Society
2. Pension and Retirement Plans
a. The Growth in Pension and Retirement Plans
John H. Langbein, The Twentieth-Century Revolution in Family Wealth Transmission
b. Types of Pension and Retirement Plans
c. Succession Issues for Pension and Retirement Accounts
Nunnenman v. Estate of Grubbs
Egelhoff v. Egelhoff
3. Pay-on-Death and Transfer-on-Death Contracts
Uniform Probate Code § 6-101
Multiple-Party Bank and Brokerage Accounts
Varela v. Bernachea
4. Nonprobate Transfer of Real Property
D. Planning for Incapacity
1. Property Management
a. Conservatorship
b. Revocable Trust
c. Durable Power of Attorney
In re Estate of Kurrelmeyer
2. Health Care
a. Default Law
b. Advance Directives
c. Physician Aid in Dying
3. Disposition of the Body
a. Post-Mortem Remains
b. Organ Donation
Chapter 8 LIMITS ON FREEDOM OF DISPOSITION: PROTECTION OF THE SPOUSE AND CHILDREN
A. Protection of the Surviving Spouse
1. The Elective Share of a Separate Property Surviving Spouse
a. Economic Partnership or Support Obligation?
Uniform Probate Code Article II, Part 2, General Comment
b. Unmarried Cohabiting Partners
c. Variation Across the States
d. Nonprobate Property
(1) Judicial Responses
Sullivan v. Burkin
(2) Statutory Reform
In re Estate of Myers
e. The Uniform Probate Code
f. Waiver by Premarital or Postnuptial Agreement
Uniform Premarital and Marital Agreement Act § 9
Reece v. Elliott
2. Community Property
a. The Spread of the Community Property System
b. Management and Disposition of Community Property
3. Migrating Couples and Multistate Property Holdings
a. Moving from Separate Property to Community Property
b. Moving from Community Property to Separate Property
4. Miscellaneous Additional Rights
a. Social Security
b. Pension and Retirement Accounts
c. Homestead
d. Personal Property Set-Aside
e. Family Allowance
f. Dower and Curtesy
B. Intentional Omission of a Child
1. American Law
2. The Family Maintenance System of the Commonwealth
Lambeff v. Farmers Co-operative Executors & Trustees Ltd.
C. Protection Against Unintentional Omission
1. Spouse Omitted from Premarital Will
Uniform Probate Code § 2-301
In re Estate of Prestie
2. Unintentional Disinheritance of a Child
Uniform Probate Code § 2-302
Gray v. Gray
In re Estate of Jackson
Chapter 9 TRUSTS: FIDUCIARY ADMINISTRATION
A. From Limited Powers to Fiduciary Administration
1. From Conveyance to Management
John H. Langbein, Rise of the Management Trust
2. Trustees’ Powers
3. Fiduciary Governance
Robert H. Sitkoff, Trust Law as Fiduciary Governance Plus Asset Partitioning
B. The Duty of Loyalty
Hartman v. Hartle
In re Gleeson’s Will
In re Rothko
C. The Duty of Prudence
1. The Distribution Function
a. Discretionary Distributions
Marsman v. Nasca
b. Sole, Absolute, or Uncontrolled Discretion
c. Exculpation Clauses
d. Mandatory Arbitration
2. The Investment Function
a. From Legal Lists to the Prudent Investor Rule
Uniform Prudent Investor Act §§ 1, 2, 3, 4
Max M. Schanzenbach & Robert H. Sitkoff, The Prudent Investor Rule and Market Risk: An Empirical Analysis
b. Recurring Problems in Applying the Prudent Investor Rule
(1) The Duty to Diversify and Inception Assets
In re Estate of Janes
Compensatory Damages for Imprudent Investment
(2) The Terms of the Trust
Wood v. U.S. Bank, N.A.
3. The Custodial and Administrative Functions
a. Duty to Collect and Protect Trust Property
b. Duty to Earmark Trust Property
c. Duty Not to Mingle Trust Funds with the Trustee’s Own
d. Duty to Keep Adequate Records of Administration
e. Duty to Bring and Defend Claims
4. Trustee Selection and Divided Trusteeship
a. Choosing a Trustee
b. Delegation by a Trustee
Uniform Trust Code § 807
c. Division by a Settlor
(1) Co-Trustees
(2) Power of Appointment
(3) Directed Trusts
d. Private Trust Company
D. The Duty of Impartiality
1. Due Regard and the Terms of the Trust
2. The Principal and Income Problem
In re Heller
E. The Duty to Inform and Account
Uniform Trust Code § 813
1. Responding to a Request for Information
Uniform Trust Code § 105
Wilson v. Wilson
2. Affirmative Disclosure
Allard v. Pacific National Bank
3. Accountings and Repose
a. Judicial Accountings
National Academy of Sciences v. Cambridge Trust Co.
b. Informal Accountings and Release
Chapter 10 TRUSTS: ALIENATION AND MODIFICATION
A. Alienation of the Beneficial Interest
1. Discretionary Trusts
a. Pure Discretionary Trust
b. Support Trust
c. Discretionary Support Trust
d. Collapsing the Categories
Uniform Trust Code § 504
e. Protective Trusts
2. Spendthrift Trusts
Uniform Trust Code §§ 502, 503
Scheffel v. Krueger
3. Self-Settled Asset Protection Trusts
Federal Trade Commission v. Affordable Media, LLC
4. Trusts for the State Supported
a. Self-Settled Trusts
b. Trusts Created by Third Parties
B. Modification and Termination
1. Consent of the Beneficiaries
a. English Law
b. The Claflin Doctrine
In re Estate of Brown
c. The UTC and the Restatement (Third) of Trusts
Uniform Trust Code § 411
2. Deviation and Changed Circumstances
a. Traditional Law
b. Extension to Dispositive Provisions
Uniform Trust Code § 412
In re Riddell
c. Tax Objectives
3. Trust Decanting
Harrell v. Badger
C. Trustee Removal
Uniform Trust Code § 706
Davis v. U.S. Bank National Association
Chapter 11 TRUSTS: CHARITABLE PURPOSES, CY PRES, AND SUPERVISION
A. Charitable Purposes
Shenandoah Valley National Bank v. Taylor
B. Cy Pres and Deviation
1. Cy Pres
a. Illegal, Impossible, or Impracticable
In re Neher’s Will
b. Wasteful
San Francisco Chronicle: The Buck Trust
2. Deviation
Philadelphia Story: The Barnes Foundation
3. Discriminatory Trusts
C. Enforcement of Charitable Trusts
1. Traditional Law
2. Settlor Standing
Smithers v. St. Luke’s-Roosevelt Hospital Center
3. Local Politics
The Sweetest Place on Earth: Hershey’s Kiss-Off
4. Persons with a Special Interest in the Trust
5. Federal Supervision
Hawaii Journal: The Bishop Estate
Chapter 12 TRUSTS: POWERS OF APPOINTMENT
A. Purposes, Terminology, and Types of Powers
1. Terminology and Relationships
a. The Parties
b. Creation
c. General and Nongeneral Powers
d. Time and Manner of Exercise
e. Ownership Equivalence
f. A Fiduciary Power of Appointment?
2. Tax Considerations
a. General and Nongeneral Powers
b. Flexibility Without Estate Tax Liability
3. Creditor Rights
Irwin Union Bank & Trust Co. v. Long
B. Exercise of a Power of Appointment
1. Manifestation of Intent
Beals v. State Street Bank & Trust Co.
2. Formal Requirements Imposed by the Donor
a. The Nature of the Instrument
b. Specific Reference Requirement
Uniform Probate Code § 2-704
3. Permissible Exercise of the Power
a. Appointment to an Object
Timmons v. Ingrahm
b. Appointment in Further Trust
Brown v. Miller
c. Creation of a New Power of Appointment
d. Exclusive and Nonexclusive Powers
e. Salvage Doctrines: Allocation and Capture
(1) Allocation
(2) Capture
4. Disclaimer, Release, and Contract
C. Failure to Exercise a Power of Appointment
1. General Power
Uniform Powers of Appointment Act § 310
2. Nongeneral Power
Uniform Powers of Appointment Act § 311
Chapter 13 TRUSTS: CONSTRUCTION AND FUTURE INTERESTS
A. Future Interests
1. Classification
2. Future Interests in the Transferor
a. Reversion
b. Possibility of Reverter
c. Right of Entry
3. Future Interests in Transferees
a. Remainders
(1) Vested and Contingent Remainders
(2) Vested Subject to Partial Divestment
(3) Vested Subject to Divestment or Contingent?
(4) Remainders and Reversions
b. Executory Interests
4. Future Interests Reform
B. Construction of Trust Instruments
1. Preference for Vested Interests
a. Acceleration into Possession
b. Transferability
(1) Inter Vivos Transfer
(2) Transfer at Death
c. Requiring Survival to Time of Possession
(1) The Traditional No-Survivorship Rule of Construction
Tait v. Community First Trust Co.
(2) Multigenerational Class Gifts and Other Exceptions
Clobberie’s Case
(3) The Survivorship-Plus-Antilapse Rule of UPC § 2-707
2. Gifts to Classes
a. Gifts of Income
Dewire v. Haveles
b. Gifts to Children, Issue, or Descendants
(1) Gift to Children
(2) Gift to Issue or Descendants
c. Gifts to Heirs
Estate of Woodworth
d. The Rule of Convenience
(1) Immediate Gifts
(2) Postponed Gifts
(3) Gifts of Specific Sums
Chapter 14 THE RULE AGAINST PERPETUITIES AND TRUST DURATION
A. The Common Law Rule
1. History
a. Predicates to the Rule
b. The Duke of Norfolk’s Case
c. Toward Lives in Being Plus 21 Years
2. The Policy Against Remote Vesting
a. The Modern Purposes of the Rule
b. Why “Lives in Being Plus 21 Years”?
c. The Rule and Trust Duration
3. A Rule of Logical Proof
a. Some Life in Being
b. When the Lives in Being Are Ascertained
4. What Might Happen and the Fantastical Characters
a. The Fertile Octogenarian
b. The Unborn Widow
c. The Slothful Executor
d. The Magic Gravel Pit and Other Marvels
B. Perpetuities Reform
1. Saving Clauses
2. Reformation (or Cy Pres)
3. Wait-and-See
4. Abolition of the Rule Against Perpetuities
Robert H. Sitkoff & Max M. Schanzenbach, Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes
Lawrence W. Waggoner, From Here to Eternity: The Folly of Perpetual Trusts
Jesse Dukeminier & James E. Krier, The Rise of the Perpetual Trust
5. The Restatement (Third) of Property
Restatement (Third) of Property: Wills and Other Donative Transfers § 27.1
C. Application of the Rule to Class Gifts and Powers of Appointment
1. Class Gifts
a. The All-or-Nothing Rule
b. Exceptions to the All-or-Nothing Rule
(1) Gifts to Subclasses
(2) Specific Sum to Each Class Member
2. Powers of Appointment
a. General Powers Presently Exercisable
(1) Validity of Power
(2) Validity of Exercise
b. General Testamentary Powers and Nongeneral Powers
(1) Validity of Power
(2) Validity of Exercise
c. The Delaware Tax Trap
D. Other Durational Limits
1. The Rule Against Suspension of the Power of Alienation
2. The Rule Against Accumulations of Income
Chapter 15 WEALTH TRANSFER TAXATION
A. The Federal Gift Tax
1. Taxable Gifts
a. Inadequate Consideration in Money’s Worth
b. Completion
c. Joint Tenancy
d. Income Tax Basis
e. Liability for Gift and Estate Taxes
2. The Annual Exclusion
Estate of Cristofani v. Commissioner
3. The Marital Deduction and Gift Splitting
B. The Federal Estate Tax
1. A Thumbnail Sketch
2. The Gross Estate
a. The Probate Estate
b. Joint Tenancy
c. Annuities and Employee Death Benefits
d. Life Insurance
e. Retained Rights or Powers
Estate of Maxwell v. Commissioner
Old Colony Trust Co. v. United States
Family Limited Partnerships
f. Revocable Transfers
g. Transfers Within Three Years of Death
h. Powers of Appointment
Estate of Vissering v. Commissioner
3. Deductions
a. The Marital Deduction
(1) Requirements to Qualify
(2) The Nondeductible Terminable Interest Rule
(3) Exceptions to the Nondeductible Interest Rule
(4) Qualified Domestic Trusts
(5) Tax Planning for Spouses: The Credit Shelter Trust and Portability
b. The Charitable Deduction
C. The Generation-Skipping Transfer Tax
1. The Nature of the Tax
a. A Taxable Generation-Skipping Transfer
b. When GST Tax Must Be Paid
2. Exemption and Exclusions
D. State Estate and Inheritance Taxes
E. Income Taxation of Grantor Trusts
Table of Cases
Author Index
Index
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