Wills, Trusts & Estates Prof Blog

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

Monday, August 6, 2007

Probate Exception Analyzed

HurstJulian Hurst (2008 J.D. Candidate, University of Washington School of Law) has recently posted his comment on SSRN entitled Marshall v. Marshall: The Supreme Court's Get-Out-of-Probate-Free Card.

Here is the abstract of his article:

The probate exception to federal jurisdiction is a legal doctrine self-imposed by federal courts barring jurisdiction over probating wills or administering estates, or related actions that would interfere with property in the custody of state courts. Courts have struggled with cases that fall at the margins of the exception, creating one of the most mysterious and esoteric branches of the law of federal jurisdiction.

In Marshall v. Marshall, the Supreme Court addressed the federal probate exception for the first time in over 60 years. Eight members of the Court held that the doctrine was legitimate, but more narrow than many lower courts thought. Unfortunately, the decision leaves as many questions as answers. The history, scope and purpose of the federal probate exception, as well as its place in the Supreme Court's federal jurisdiction jurisprudence, has already been treated by other authors. I will examine Marshall's practical consequences from the perspective of probate law and for those who find themselves challenging the validity of a will or trust.

https://lawprofessors.typepad.com/trusts_estates_prof/2007/08/probate-excepti.html

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Comments

Isn't one practical effect the plaintiff's ability to forum shop to a more favorable location with different laws?

Posted by: Mason | Aug 6, 2007 4:05:43 PM

Only circus cases like this could go all the way to the supreme court. I think that in cases such as this when the defendant went to every length possible to retain their estate and there is evidence to that effect, that probate court should be where the buck stops.

Posted by: Belicoso | Aug 8, 2007 2:27:19 PM

Mason, I think you hit the nail on the head.

Posted by: noodlemonkey | Aug 9, 2007 11:09:27 AM

I HAVE A FEDERAL TRUST AND WOULD LIKE TO SPEAK TO SOMEONE ABOUT OPENING IT WHO WOULD I CONTACT

Posted by: ROSA | Jan 13, 2009 10:22:37 AM

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