Wills, Trusts & Estates Prof Blog

Cave Dwellers to Become Billionaires

Zsolt and Geza Peladi, two homeless brothers living in a cave outside of Budapest, have just learned that they will share, along with their sister who lives in the United States, their German grandmother's fortune worth over $7 billion.

See Henry Samuel, Penniless cavemen inherit $7.2bn, theage.com.au, Dec. 3, 2009:

''We knew our mother came from a wealthy family but she was a difficult person and severed ties with them, and then later abandoned us and we lost touch with her and our father until she eventually died,'' Geza Peladi, 43, told ATV television.

Under German law, direct descendants are automatically entitled to a share of any estate.

''If this all works out, it will certainly make up for the life we have had until now - all we really had was each other - no women would look at us living in a cave,'' he said.

''But with money, maybe we can find a partner and finally have a normal life. I understand it was only while they were carrying out genealogical research that lawyers found we existed.''

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Majority of Brits Do Not Have A Will

A recent survey reveals that fifty-seven percent of the British population does not have a will, with percentages rising for younger generations.  Forty-three percent of those surveyed said they do not have a will because because they hadn't got around to making one.  

See Mirror, Most people have yet to make a will, Oct. 24, 2009. 

Partner and Family of Author Stieg Larsson Battle Over Estate, Including Laptop Containing Possible Manuscript

Author Stieg Larsson died in 2004.  Siince his death, three manuscripts left behind by the writer have been published and have made his estate very wealthy.  His partner of 32 years and his family are fighting over Larsson's estate, largely because Larsson did not leave a valid will. 

• Larsson and his partner, Eva, never married because Larsson feared she could be linked to his anti-fascists works.
• A 1977 will left Larsson's assets to a local Communist Workers League; however, the will is not valid because it is not witnessed.
• Larsson's estate, estimated at more than £20m, has passed to his family. 
• Larsson's father and brother recently offered Eva £1.75m to settle the estate dispute.  
• Eva claims that Larsson's laptop contains a 200-page manuscript for a sequel book, and she has declined an offer from Larsson's family to trade the laptop for the half of the couple's apartment owned by Larsson's estate. 

See Esther Addley, The Girl in the £20m Inheritance Battle – partner of late novelist Stieg Larsson fights for share of fortune, Guardian, Nov. 2, 2009. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Howard Hughes's Heirs Hit by the Real Estate Slump

When Howard Hughes died in 1976, he left behind no will, no children, and nearly 1,000 heirs and beneficiaries. So far, his heirs and beneficiaries have collected $1.5 billion from liquidating Hughes's estate. 

The heirs and beneficiaries were hoping for one final big payout from some real estate in Las Vegas, however,the value of the real estate has dropped considerably and the company holding the real estate has filed for bankruptcy.

For more information, see Kris Hudson, Real-Estate Slump Hits Howard Hughes's Heirs, WSJ, Oct. 23, 2009.

Posthumous Paternity Testing In Maine

Dan Boyd (J.D. Candidate, 2010, University of Maine School of Law) has published his case note entitled Raising the Dead: An Exemption of In re Kingsbury and Maine's Law Regarding Intestate Succession and Posthumous Paternity Testing, 61 Me. L. Rev. 567 (2009).  An excerpt from the introduction of the article is below:

    This Note begins by exploring the development of the law regarding illegitimate children and the determination of paternity as it relates to intestate succession, with a focus on the law in Maine. Part II of this Note discusses the possible methods of posthumous paternity testing and the ways in which the law in Maine and other jurisdictions has responded to those methods.

    In Part III, this Note summarizes the Kingsbury decision and its importance. Next, in Part IV, this Note confronts the question presented by Kingsbury by examining the interests that inform the analysis. More particularly, this Note will explore the interests of the illegitimate child in determining her true paternity-including intestacy inheritance rights, knowledge of both parents' medical histories, and a fuller sense of personal and cultural identity-as well as the interests of those who would be tested or affected by testing of the decedent's body. This Note suggests that in balancing these interests, the interests of the illegitimate child in determining her true paternity outweigh opposing interests, particularly in the context of posthumous paternity cases. This Note concludes by proposing a revision of Maine's probate law that would (1) provide a hierarchy of sources from which to obtain DNA samples for posthumous paternity testing, and (2) give the Probate Court the authority to order such testing upon a sufficient showing that paternity will be established.

Simultaneous Death Provision in the California Probate Code

Victoria J. Haneman has posted on SSRN her article entitled 120 Hours Until the Consistent Treatment of Simultaneous Death Under the California Probate Code.  An abstract of the article is below:

The issue of simultaneous death arises when there is insufficient evidence that two individuals died other than simultaneously. In the case of closely proximate deaths, devolution of the estate depends upon the order of death. The California Probate Code applies standards of proof for survival, which will determine order of death and ultimately whether or not one has the right to inherit property of the decedent. One such standard is set forth in California Probate Code § 6403, which provides that if one dies intestate, the beneficiary must provide clear and convincing evidence of survival by 120 hours. However, this 120 hour standard is not consistent throughout the California Probate Code, and applies only to intestacy and statutory wills. The standard that applies to formally attested or holographic wills is that of clear and convincing evidence, stripped of the benefit of the 120 hour rule. This Article examines the inconsistent adoption of the 120 Hour Rule in the California Probate Code, and proposes a narrowly-tailored legislative solution: California Probate Code § 220 must be amended to replace the “clear and convincing evidence” standard with a 120-hour rule. The same policies that drive the adoption of the 120 hour rule, justify its consistent application through the California Probate Code. In effect, this will create a default 120-hour rule in California, and repair present legislative inconsistencies that prejudice the self-represented or incompetently represented.

Alternative Reproductive Technologies Create Posthumous Heirs & Legal Problems

Charles P. Kindregan, Jr., (professor of law, Suffolk University) has posted on SSRN his article entitled Dead Dads: Thawing an Heir from the Freezer, 35 William Mitchell L. Rev. 433 (2009).

The abstract of the article is below:

In Dead Dads: Thawing an Heir from the Freezerthe author examines the difficult legal problems created by the growing practice of using the cryopreserved gametes of deceased persons to conceive a posthumous child. The law has long recognized the legal parental status of a man whose fetus is in utero in his wife's pregnancy at the time of the father's death, but developments in reproductive science has now made it possible to conceive a child after either a parents' death. This has been made more complicated by the use of assisted reproduction by unmarried persons, its growing use by same-sex couples and the developing marketplace for stored sperm, eggs and embryos. The science of preserving sperm or embryos by cryopreservation is a fact, and research is improving the preservation of eggs as well. However, the law has been slow to deal with the post-death conception of a child. An optional section of the Uniform Parentage Act, the new A.B.A. Model Act Governing Assisted Reproductive Technology (2008) and new additions to the Uniform Probate Code (2008) signal an attempt to change this, but except for a California statute and minor efforts by other jurisdictions, states have not attempted to deal with this by statute. Instead, the courts have had to struggle with the issued in the context of social security rights, disputes over the ownership of cryopreserved embryos, or the interpretation of gratuitous transfer instruments. The author argues that there is no legitimate reason for treating posthumous children differently from other children, although recognizing that legislatures should enact laws to deal with issues such as efficiency in timely estate distribution.

This article was drafted before and does not examine the recently proposed amendments to the Uniform Probate Code dealing with posthumous reproduction and which if enacted by the states would comply with the author's urging support for uniform legislation on the subject.

Analysis of UPC Provisions Concerning Assisted Reproduction: Class Gifts and Intestacy

Sheldon F. Kurtz (professor of law, University of Iowa) and Lawrence W. Waggoner (professor of law, University of Michigan) have published their article entitled The UPC Addresses the Class-Gift and Intestacy Rights of Children of Assisted Reproduction Technologies, 35 Am. C of Trust and Estate Counsel J. 30 (Summer 2009). The editor's synopsis of the article is below:

Recent years' advances in assisted reproduction technology have enabled the conception of children in ways in addition to the traditional way.  The Uniform Probate Code was amended last year to address the status of children born from assisted reproductive technologies for intestacy and class-gift purposes.  This article discusses the relevant UPC provisions and offers several hypothetical cases to show how they operate.  The article concludes expressing the hope that states will consider the new UPC approach.

Slayers: Verdict of Not Guilty by Reason of Insanity Does Not Prevent Forfeiture

In re Estate of Kissinger, 206 P.3d 665 (Wash. 2009): Charged with first degree murder for the slaying of his mother, step-brother, and his mother’s boyfriend, the defendant in In re Estate of Kissinger was found not guilty by reason of insanity.  The mother’s estate received a wrongful death recovery and began a proceeding to determine statutory beneficiaries and argued that defendant was a “slayer” under Washington’s slayer statute.  In In re Estate of Kissinger, a case of first impression, the Supreme Court of Washington held that the defendant was disqualified under the statute which applies to anyone participating in a “wilful and unlawful” killing.  The standard to be used is civil not criminal; “wilful” therefore is to be taken in its everyday meaning and the verdict of not guilty by reason of insanity did not make an unlawful killing lawful.

South Africa Rules on Intestacy Rights in Polygamous Marriages

On July 15, 2009, the Constitutional Court of South Africa issued a landmark decision in the case Hassam v. Jacobs.  As summarized by the New York Times, the South African court held that "when a husband dies without a will in a polygamous Muslim marriage, each of his wives is guaranteed legal rights of inheritance."  Barry Bearak, In a Complex Family, Death Adds to the Indignity, NY Times, July 23, 2009.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Article Proposes A Framework for Determining Parentage

Lee-ford Tritt (associate professor of law, University of Florida) has recently published his article entitled Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367 (2009).

The following is an excerpt from the introduction to the article:

Therefore, this Article proposes a new model of analyzing legal issues arising from the evolving notions of parentage in America and uses it to develop rules to govern the definition of parentage for succession law purposes while preserving testamentary freedom. To bring estates law back into step with modern family realities, this Article posits that an unadulterated functionally based approach should replace both the sanguinary nexus analytical framework and the recently adopted 2008 UPC Amendments approach. This unadulterated functionally based approach would be the only framework to determine a parent-child relationship--there would be no need for multiple frameworks--one for children born from sexual conception, one for children born of technological conception, and one for adopted children. Because succession laws look to familial relations only as an approximation of testamentary intent, the proposed framework in this Article focuses on the rights and best interests of the decedent only; in so doing, it often departs from analysis in other parent-child influenced case law where the focus--appropriately enough for other areas of family law, but not for estates law's approximation of testamentary intent-- has primarily been on the rights and best interests of the child.

To accomplish this goal, this Article uses parental support cases as a springboard for criticism of the current approach. As mentioned earlier, in cases where a family court deems a parent to have support obligations, the relationship between the obligated parent and child will also be deemed to qualify the child under the sanguinary nexus test for inheritance rights if the obligated parent died intestate. Surveying a variety of parental support cases involving novel family situations, this Article deploys a normative and pragmatic critique of estates law's reliance upon family law principles to determine relevant family relationships. From a normative standpoint, a close examination of parental support cases reveals how reliance upon family law principles undermines the integrity of testamentary freedom. Paradoxically, that potential attack on testamentary freedom has rather serious deleterious implications for effective family planning in modern society. From a pragmatic standpoint, the work demonstrates the growing impracticability of attending adequately to inheritance rights that arise from continued reliance on family law principles. This Article then articulates and defends an unadulterated functional approach to defining a parent-child relationship that would completely break genetic links (and legal parental determinations) for inheritance purposes. This Article concludes that paying greater fidelity to a wholly functionally based framework, rather than reliance upon blood relationships or family law jurisprudence, would help rehabilitate the core value of testamentary freedom in estates law.

To describe fully the unadulterated functionally based approach to defining the parent-child relationship for inheritance purposes, this Article will address the philosophical foundations of estates law and family law, as well as the doctrinal developments in each that have given rise to the current conflict. Accordingly, Part II, “Foundation Underpinnings of Pertinent Legal Disciplines,” introduces the doctrine of testamentary freedom for estates law purposes and explores the jurisprudence of family law in general. Part III, “Current State of Relevant Property Succession Law,” examines the various succession laws impacted by the debate concerning the definition of a parent-child relationship. Part IV, “Parent Making: The Processes and Problems,” describes the various technological advances in child creation and genetic testing that are influencing the notion of family structures, while highlighting the inadequacies of the sanguinary nexus test. Part V, “Case Analyses,” uses parental support cases for evaluating the desirability of family law's potential influence on inheritance law. Part VI, “Defining the Parent-Child Status,” reviews various frameworks for defining the parent-child relationship, including the 2008 UPC Amendments, and proposes and explores the unadulterated functionally based approach as the sole framework to solve the various issues arising for the changing structures of the American family. Part VII, “Potential Criticisms of Unadulterated Functionally Based Approach,” evaluates the potential shortfalls of the unadulterated functionally based approach to defining the parent-child relationship for inheritance purposes. Finally, Part VIII reiterates the need to amend succession law to encapsulate more fully the evolving notion of parent-child relationships and advocates the adoption of the unadulterated functionally based approach to alleviate the concerns raised by the current reliance of the sanguinary nexus test.

McNair Died Intestate

Slain NFL quarterback Steve McNair left a sizeable estate but no will.  A Tennessee probate court has granted his widow's request to administer the estate.  McNair was survived by his wife and their two sons, and two sons from previous relationships.

The family of at least one of the son's from a prior relationship is expected to claim an inheritance.  McNair's widow listed herself and her two sons as heirs of McNair's estate, stating she could not confirm the father of the eldest two sons.

See AP, McNair leaves no will; wife to administer estate, Fox Sports, July 16, 2009; Chris Echegaray, Steve McNair's Estate left in limbo, Tennessean, July 17, 2009. 

Special thanks to Neda Jahansouz (J.D., Texas Tech University) for bringing this issue to my attention.

Succession Agreements in Spain

Susanna Navas has recently posted on SSRN her article entitled Particular Succession Agreements in the Catalan Civil Code, 2 InDret. (2009).

The abstract of the article is below:

Law 10/2008, of July 10, of the fourth Book of the Civil Code of Catalonia, regarding inheritance law, provides a new regulatory framework for succession agreements admitting those appointing heirs and those of particular succession. This article analyzes the latter kind of succession agreements and for that purpose, a distinction is made between the different legal positions of the parties to the succession agreement and third parties (beneficiaries) affected by it. The following essay further stresses the difference between the succession agreement as a contract and each of its particular provisions, one of them could concern a specific particular succession. Assessing the legal framework of this particular succession (parties, transfer and performance), we take into account the rules concerning legacies because of the application of article 431-30.5 of the Civil Code. Finally, this work criticizes the position of the Catalan legislator, who has distinguished these two kinds of succession agreements (those appointing heirs and those of particular succession). The author advocates for the introduction of a different approach in the regulation of succession agreements, an approach without these distinctions.

Those interested in international law or comparative law should find this particularly interesting.

The History of U.S. Inheritance Laws

Adam J. Hirsch wrote an interesting article on the evolution of inheritance laws in the United States.  The article is divided by time period.

The colonial period: 

• Authority over inheritance of personal and real property was handled by one court as opposed to two as it was in Great Britain.
• Intestacy laws turned to a more equal, if not totally equal, intestacy rule for children.
• Virginia introduced the holographic will as an exception to witness requirements.

The American Revolution:

• Equal treatment of children in intestacy spread to all states.
• Entails, or restrictions on land ownership limited to the testator's descendants, were abolished in most states.

The Nineteenth Century:

• Inheritance rights of a surviving spouse grew: Texas introduced the first surviving spouse homestead right guaranteeing the surviving spouse a life estate in the family home; more states gave personal property inheritance rights to the surviving spouse; all but one state provided a forced share for a surviving spouse; the surviving spouse begins taking through intestacy to the exclusion of children.
• The use of trusts greatly expanded: The spendthrift trust developed to keep creditors away from trust funds, business and pension trusts emerged, and the prudent investor rule emerged.

The Twentieth Century

• The Rise of Federal Taxes: The estate tax, which had been used only during military crisis, became a permanent institution; the gift tax was enacted simultaneously; the generation skipping tax was later introduced.
• Trusts Expand: the dynasty trust resulted when states began abolishing the rule against perpetuities and the living trust became an inexpensive and popular alternative to a will.

The author notes that the field of law as a whole remains a low priority for legislatures, and as a result, new cases involving alternative reproductive technology are solved with laws enacted as early as 1836. 

See Adam J. Hirsch, Inheritance: United States Law, 3 Oxford International Encyclopedia of Legal History 235, (Stanly N. Katz ed. 2009).

Ninth Circuit Decision: Posthumous Children and Social Security Benefits

On May 6, 2009, the Ninth Circuit Court of Appeals held that a child conceived with a man's sperm three years after his death is not eligible for Social Security survivorship benefitsunder California Law.  The sperm was retrieved from the man's body after his death and without any indication that he wanted to father children posthumously. 

The court held that under Ninth Circuit precedent and a ruling from the SSA, a child must prove that the insured was the child's parent, or that the child is both legitimate and  was dependent on the biological parent. 

The court first held the child at issue to be a legitimate child of the man because of their biological relationship.  

Turning to the dependency determination, the court held that it was impossible for the child to have been actually dependent on the sperm donor at the time of his death because she was conceived three years after his death.

The court next held that the California family code focuses on the parent child relationship, never a biological relationship without anything more, to establish "natural parentage" and dependency. 

Finally, the court held that the California Probate Code does not provide a method of intestate succession for children conceived and born posthumously without the deceased biological parent's consent, and therefore, the child could not prove dependency under the laws of intestate succession.

The court also held that it's holding did not present an equal protection violation because it did not exclude all posthumous children from eligibility for benefits, only those who do not qualify.

See Vernoff v. Astrue, No. 08-55049 (9th Cir. June 17, 2009).

As previously mentioned, Mary F. Radford (Professor of Law, Georgia State University College of Law) has posted on SSRN her article entitled Post-Mortem Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows, which discusses the very issue discussed in Vernoff. 

Intestate Succession under the Catalan Code

Maurici Perez Simeon has recently posted on SSRN his article entitled Legal Rights v. Will When Testator's Beneficiary Predeceases the Testator, InDret, Volume 3, 2008.

Here is the abstract of his article:

Section 144.2 of the Catalan Code of Succession provided that whenever a testator's beneficiary predeceased the testator, his issue should take his share. Since the Catalan Code of Succession entered into force, there has been an important debate among academics regarding whether the issue of a predeceased beneficiary should take before the other testator's beneficiaries in proportion to their shares and/or before the "vulgar substitution." The underlying debate is the role that legal presumptions should have for the interpretation of testamentary provisions.

Section 423-8 of the Catalan Civil Code's Book Four, recently approved, sets forth a similar provision, even though presenting new challenges regarding the scope of the above-mentioned rule and its judicial interpretation.

Michael Jackson -- Will or No Will?

The debate rages whether Michael Jackson died intestate or testate.

In Michael Jackson's Estate in Court, myjoyonline.com, June 29, 2009, it is reported that Michael's parents, Joe and Katherine Jackson, claim in their probate filing that Michael died intestate.

However, in Michael Jackson's Will Surfaces, TMZ.com, June 29, 2009, it is reported that Michael Jackson's attorney, John Branca, is in possession of MJ's will and that he intends to file it with the court.

Dead But Still on the Payroll

Deceased city employees in Cincinatti may continue to receive retirement checks well after their death.  A recent Cincinatti.com article reports that poor managment of the system has resulted in investigations in at least 18 cases of payments to dead people, including the following:

A city retiree on a disability pension since the late 1970s who died in March 2000, but continued to receive monthly checks until June 2005, resulting in a $41,345 overpayment by the city.

A deceased city employee's beneficiary who died in March 2006, but received $18,067 in improper payments through July 2008.

Another beneficiary who received checks for 19 months after her December 2006 death, four of which - totaling $5,034 - apparently were cashed by her guardian. In addition to examining the precise details about the cashed checks, investigators have concluded that the city needs to collect and stop payment on checks totaling $19,696.

In one case, pension checks for a retiree who died in October 2007 continued to go to his spouse through June 2008. The following month, after her husband's name showed up on a death report, she began receiving a reduced pension - even though she had died two months earlier.

Barry M. Horstman, Dead city worker kept getting check, Cincinatti.com, June 8, 2009.

Article Examines Succession Without Administration

Karen J. Sneddon (Assistant Professor, Mercer University School of Law) has recently published her article entitled Beyond the Personal Representative: The Potential of Succession Without Administration, 50 S.Tex. L. Rev. 449 (2009). 

Below is the abstract from the article: 

The baby-boom generation has changed a number of institutions, such as schools, and has challenged a number of assumptions. As the baby-boom generation ages, one such institution that may be changed is the probate court, a court that handles estates. A revived Succession without Administration could facilitate the efficient and effective transfer of estates. To complement the Uniform Probate Code's already “Flexible System of Administration of Decedents' Estates,” the Uniform Probate Code was amended in 1983 to include Succession without Administration. Succession without Administration provides for administration free from court supervision that is not restricted to the size of a decedent's estate and a spreading of estate management beyond the personal representative. That means that solvent estates with relatively liquid assets and agreement among beneficiaries could benefit from this alternative. It could promote the goal of family harmony.

 

Despite being viewed by its primary draftsperson as a natural progression of minimal court supervision and buttressed by the identification of such a need in the 1940s, no jurisdiction has adopted the Succession without Administration provisions. In 2007, the provisions were declared “obsolete” and officially “withdrawn from recommendation for enactment.”

 

First, this Article briefly considers the origins, functions, and problems of administration. Second, this Article surveys statutes featuring informal administration procedures that stop short of the expansive options of the Uniform Probate Code's Succession without Administration, including one procedure that has been in use since the late nineteenth century. Third, this Article analyzes the options in the Uniform Probate Code to minimize court supervision. In addition to analyzing Succession without Administration, this Article reviews procedures inherent, affidavit procedures, and summary procedures for small estates. Finally, this Article reasons that the overlooked Uniform Probate Code's Succession without Administration should be reconsidered by jurisdictions. It ensures the greatest number of options for the settlement of estates, including large solvent estates with liquid assets. Succession without Administration would also allow the spreading of authority to handle and manage the estate, which, in some cases, may preserve family harmony.
 

French Form of Civil Union Popular with Opposite-Sex Couples

In France, the Civil Solidarity Pact, or PACS, are civil unions available to both same-sex and opposite-sex couples.  The status gives traditional marriage benefits, such as joint tax returns and intestate succession.  Additionally, the status is easier and cheaper to terminate than a traditional divorce.  As a result, itis estimated that 92% of the PACS obtained last year were by opposite-sex couples who are either opposed to traditional marriage or who are using the status as a step toward marriage.

See Edward Cody, Straight Couples in France Are Choosing Civil Unions Meant for Gays, Wash. Post, Feb. 14, 2009.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.