Sunday, May 25, 2014
Melanie B. Leslie (Cardozo Law School) recently published an article entitled, Frustration of Intent in the Wealth Transmission Process, Oñati Socio-Legal Series, Vol. 4, No. 2, 2014. Provided below is the abstract from SSRN:
In recent decades, the so-called “nonprobate revolution” has taken hold in the United States. Where the probate court once controlled the distribution of property on death, an individual can now avoid the expense and delay of probate by using a variety of mechanisms, such as revocable living trusts and "payable on death" designations attached to savings and retirement accounts. Although the nonprobate system often works well, it has generated unanticipated costs that U.S. law has yet to satisfactorily address. When people experience changes in life circumstances – such as marriage, divorce or death of a beneficiary – but fail to take adequate steps to modify their nonprobate designations, the law does not enable courts to effectuate a deceased’s probable intent. Unlike wills law, which prioritizes intent effectuation over other concerns, current legal rules governing nonprobate accounts and mechanisms value efficiency and institutional convenience. In addition, the ease and relative secrecy with which non-probate assets are executed can make it much easier for an overreaching friend or relative to take advantage of an elderly person who lacks capacity or to exercise undue influence. As a result of these problems, estates are increasingly being distributed in ways that frustrate the intent of the deceased.