Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, March 2, 2017

Article on Freedom After Death

Will dispositionKurt X. Metzmeier recently published an Article entitled, Constructing Freedom: A Letter by George M. Bibb Concerning the Will of the Rev. Richard Bibb, Sr., 9 Unbound: A Review of Legal History & Rare Books 133 (2016). Provided below is an abstract of the Article:

Slavery, America’s original sin, played a pervasive role in the psyche of Kentuckians before the Civil War. No group faced more moral anguish than the state’s Christian ministers, many who also owned slaves. In the late 1830s, a Methodist minister, Richard Bibb, began to grapple with these issues. Having early settled earlier in Western Kentucky in one of the areas of the state most amenable to plantation agriculture, Bibb had owned up to a hundred slaves at times. But now he was called by his faith to free them, something he did most finally in his will, probated after his death in 1839. 

His son, John B. Bibb, was named as executor but Kentucky law made the freeing of large groups of very difficult so John asked his brother, a prominent Kentucky jurist and Democratic politician for legal advice. George M. Bibb had just finished a term as a proslavery U.S. senator and was now judge of the Jefferson County Court of chancery. 

Judge Bibb responded with a well-reasoned opinion letter that applied the law of wills to Kentucky's restrictive emancipation laws, laws that attempted to prevent free slaves from remaining in the state and becoming a charge on the county poor law rolls. Bibb acknowledged his opposition to his father’s pro-emancipation views but assured his brother John that his ethical duty to help advance the intentions of the testator overrode any feeling along those lines. The letter is an extraordinary example of an antebellum legal opinion letter.

The will is transcribed faithfully but footnotes are added to provide proper citations for all the authorities cited. Detailed introductory chapters describe the Bibb family, discuss the views of Rev. James Bibb, Sr., set out the law of slavery and emancipation in Kentucky, and give a thumbnail sketch of one of the freed men Andrew J. Bibb.


March 2, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, February 27, 2017

Article on Replacing the Portability Election Scheme

Portability electionChristopher P. Brehm recently published an Article entitled, “DSUE” It or Lose It! Replacing the Portability Election Scheme with Mandatory Portability of the Deceased Spouse’s Unused Exclusion Amount, 9 Est. Plan. & Community Prop. L.J. 1 (2016). Provided below is an abstract of the Article:

First, this comment will discuss the enactment of portability, as well as the applicable Internal Revenue Code and Treasury Regulation provisions that govern portability, including the requirements to make the election. Second, this comment will discuss the differences between a traditional estate plan versus a portability plan. Third, this comment will explore the current problems the surviving spouse faces under the current portability election scheme. And finally, this comment will propose not only to eliminate the portability election in favor of making portability of the DSUE amount mandatory but to also impose a new filing requirement for surviving spouses in order to compute the DSUE amount. 


February 27, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, February 23, 2017

What Big Mistake Are You Making in Retirement?

Living trust3Upon entering retirement, most people are planning for living costs, but what they fail to create is a will or living trust. In a recent study, 58% of adults reported not having either type of crucial estate-planning element in place. Of course, it is easy for Americans to come up with reasons not to have an estate plan, with the most common excuse being not having enough assets. Even if the excuses are true, you may be causing your loved ones unnecessary anguish. Having a will or a living trust will help to carry out your intent in the event that something unfortunate happens, so make sure to plan for those most important to you.  

See Maurie Backman, 58% of Americans Are Making This Huge Retirement Mistake, Motley Fool, February 12, 2017. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.


February 23, 2017 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, February 21, 2017

Article on Consideration for Inter Vivos & Testamentary Gift Transfers

Gift considerationAlex M. Johnson, Jr. published an Article entitled, Contracts and the Requirement of Consideration: Positing a Unified Normative Theory of Contracts, Inter Vivos and Testamentary Gift Transfers, 91 N.D. L. Rev. 547 (2015). Provided below is an abstract of the Article:

This Article addresses a subject that has mystified generations of Contracts students: the normative basis for “consideration.” Instead of attempting to define consideration, which can be largely tautological, the focus is on the normative basis for its use in deciding which contracts are enforceable. After examining the four major normative theories that have been put forth to date to explain the requirement of consideration: functional, realist, moral, and efficiency, the Article conclude that functional is the best normative theory mandating the use of consideration in enforceable contracts.

The Article compares enforceable contracts in which consideration is found with transactions in other legal areas, that is, valid inter vivos gifts and Wills (Property and Trusts and Estates), to determine what requirements are necessary to validate those transfers. With respect to both of these latter transfers, functional formalities are required that satisfy evidentiary, channeling, ritualistic, and protective functions--the same functions that are satisfied by the consideration doctrine in Contracts.

The Article then details why these formalities are so important and cut across these transactions in different areas of the law. By expanding the analysis to the adjudication phase of the legal process, the critical role these functions play ex post allows the court or other arbiter to make a determination regarding the enforceability of a transaction with low administrative costs and with little attendant error costs. In two of the three transactions, inter vivos gifts and testamentary (Will) transfers, inevitably one of the parties (the putative donor) to the transaction is deceased. In the third, arms-length contracts, the two parties to the putative contract have two different stories regarding the formation of that contract which, in the absence of the functional formalities, would be indeterminate. The functional formalities thus provide the arbiter with reliable and crucial information ex post to guide the decision-maker's resolution of the question of enforceability.

Finally, the outlier transaction that has bedeviled Contract scholars for generations and which requires no consideration--promises enforced as a result of the use of the doctrine of promissory estoppel--is addressed and analyzed. It is theorized that these cases actually represent three different types of transactions--failed gift cases, promissory fraud cases, and pre-contractual promise cases (based on fact patterns similar to those employing the doctrine of culpa en contrahendo in Civil Law countries). Disaggregating these cases, it is demonstrated that only the latter, pre-contractual promise cases, are true contract cases calling for the imposition of the same normative basis as contract cases supported by consideration. Hence, the article concludes by demonstrating that the contract cases that are enforceable per the doctrine of estoppel or reliance supply the courts with the same functional formalities as consideration-based agreements. These enforceable reliance cases provide the courts with an efficient and effective way to make an adjudication with low error costs.



February 21, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Sunday, February 12, 2017

Delaying Your Estate Plan

Delay estate planningIn a 2016 study, 26% out of 3,105 wealthy individuals surveyed had a complete estate-planning strategy to transfer their wealth to the next generation. Further, only 54% had created a will, but most had not updated them. As a result, $1.5 trillion of the $3.2 trillion is without direction as it falls into the hands of the next generation. Perhaps, the reason why people avoid preparing an estate plan is because they are not sure what they want to do with their wealth at some distant point in the future and a clearer picture of what heirs should receive will present itself at a later date. Another part of a solid estate plan is to communicate important facts so that the heirs are able to prepare for an inheritance. The sooner in life these conversations are expressed, the smoother the wealth transfers. 

See Sonia Talati, Don’t Delay Planning Your Estate, Barron’s, February 10, 2017. 

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


February 12, 2017 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, February 6, 2017

Then and Now: Why People Defer Will Drafting

Avoiding will draftingBased on a recent survey’s finding that 64% of Americans do not have a will, it is important to understand why so many defer drafting their will. In 1927, the top reasons for avoiding the will drafting process included superstitions about ushering in death, mental laziness, a sense of inadequacy to plan for the future, and sheer hesitation and procrastination. 

Today, some hinge their lack of estate planning on being too young. However, life is unpredictable, so it is essential that you are ready for the unexpected. Additionally, while many of us would like to avoid thinking about dying, an estate plan can ensure that your legacy is passed on just as you intended. Further, a portion of today’s Americans think that only the wealthy need wills, but this is a misinformed illusion. No matter how much your assets are worth, it is important to make sure they go to the desired individuals. As time goes on, we must strive to change our habits and make reliable estate plans.   

See Anna Sulkin, Now and Then: Why People Procrastinate Making Wills, Wealth Management, February 2, 2017. 


February 6, 2017 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, February 3, 2017

The Main Reasons Why Families Fight over Estates

Fighting over estateRecently, the public has been privy to some bitter estate battles, but what are the main reasons families fight over estates? The dynamic between a local sibling who helps support an aging parent and a distant sibling can naturally make the local sibling feel entitled to more from that parent, which can lead to claims of undue influence and continuous litigation. Further, a late-in-life spouse or caregiver can also spur tension between the decedent’s family, resulting in disputes for those that stood to inherit and claims of undue influence. Other estate battles can stem from blended families, those who have more than one marriage with children from previous marriages. If a decedent leaves all assets to their spouse, then the spouse could, at some point, become separated from the stepchildren after the decedent’s death, which could prevent them from benefiting in the estate. Accordingly, estate planners should help their client’s prepare for potential fights and consider all non-probate assets in addition to the will.     

See F. Skip Sugarman, Five Reasons Families Fight over Estates, Wealth Management, January 30, 2017. 


February 3, 2017 in Disability Planning - Health Care, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Thursday, February 2, 2017

How One Woman Almost Got Away with Millions

Fake willDonna Herring, a Camden real estate agent, is in hot water for faking the will of her daughter’s fiancée after he died in a car accident. Matthew Seth Jacobs was a survivor of the Deepwater Horizon explosion, which afforded him a multimillion-dollar settlement, and when he died in a car accident, his will left his nearly $2 million estate to Alex Peterson, Herring’s daughter, with only $50,000 being left to Jacobs’s son. Herring almost got away with the scheme, but right after the assets were distributed, evidence was discovered that showed the will was a forgery. The government has already seized assets from Herring that were part of Jacobs’s estate, including $720,000 in cash, four homes, and a car. After allegedly confessing that she knew her mother created the will after Jacobs’s death, Peterson will standby as her mother goes on trial for the crimes that she almost got away with.    

See Mark Friedman, Fake Will Scheme Puts Camden Real Estate Agent in Hot Water, Arkansas Business, January 30, 2017. 


February 2, 2017 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, January 31, 2017

Florida's Electronic Wills Act Reported Favorably by the Judiciary Committee

Electronic willsThe potential Florida Electronic Wills Act specifies requirements that must be satisfied in the execution of electronic wills. Additionally, it allows a will that is properly executed in any state to be admitted to probate in Florida. The Florida Judiciary Committee recently reported favorably on the Act and passed the review on to the Banking and Insurance Committee. 

See CS/SB 206: Electronic Wills, Florida Senate, January 31, 2017. 

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.


January 31, 2017 in Current Events, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Thursday, January 19, 2017

Plan Ahead for Your Estate

Writing a willThe current number of those who do not have a will can be astonishing, especially knowing that they run the risk of letting the state decide what happens to their estate. Those who do have wills also often fail to update them after a change in circumstances. With a lot of important estate decisions, it is necessary to prep for your loved ones—spouses, significant others, children, and grandchildren alike. Issues like body disposition and organ donation are crucial steps to consider because if not, you leave your family members guessing as to what you would have wanted, which often leads to fights. Further, in our technology era, it will be essential to specify actions for your digital accounts. Ultimately, one must plan their estate so that the bureaucracy does not consume those we care about at the worst possible time.  

See Lisa Pollack, One Day It Will Be Curtains, so I’m Planning for It, Financial Times, January 17, 2017. 

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


January 19, 2017 in Death Event Planning, Disability Planning - Health Care, Estate Planning - Generally, Wills | Permalink | Comments (0)