Wills, Trusts & Estates Prof Blog

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

Friday, July 24, 2009

Wills and Trusts in the Antebellum South

Antebellum_home Stephen Duane Davis, II and Alfred L. Brophy (professor of law, University of North Carolina) have recently posted on SSRN their paper entitled The Most Esteemed Act of My Life: Family, Property, Will, and Trust in the Antebellum South.  The paper is based on wills filed in Greene County, Alabama, between 1813 and 1845.  The following is the abstract of the article: 

This paper combines an empirical study of probate in Greene County, Alabama, one of the wealthiest counties in the United States in the years leading into Civil War, with a qualitative examination of property doctrine and ideology at that time. The data address three key themes in recent trusts and estates literature. First, what testators did with their extraordinary wealth; in particular, how they worked to maintain property within their families, and especially how male testators were suspicious of loss of their family's wealth through their daughters' marriages. Second, the testators used sophisticated trust mechanisms for both managing property and keeping it within their families. In the antebellum era, Americans celebrated the ways they harnessed technologies, from the steam engine to the telegraph and printing press, to create wealth and improve society. This study reveals that trusts should be added to that list of technologies that assisted in the creation and management of wealth. Finally, the data reveal the salience of enslaved human property, often managed through trusts after their owners died and also frequently divided between family members, to the maintenance of family wealth.

While some in the United States at the time, including some jurists, as well as politicians and novelists, questioned the desirability to our country of inheritance, the Greene County data show an extraordinary devotion to maintenance of family wealth. The findings in 'The Most Esteemed Act of My Life' invite further study in other places in the South, as well as in the North, to test the extent to which the existence of wealth (particularly a wealth based on human property) led to different patterns of bequest from those seen among some of our nation's wealthiest individuals at critical period of American history.

For a discussion of the article by one of the co-authors, click here.

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

July 24, 2009 in Articles, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Home Funerals On the Rise

Coffin Home funerals are increasingly popular with those who desire an informal, intimate, and organic end-of-life memorial.  Here are some things to consider when planning a home funeral:

  • Laws in Connecticut, Indiana, Louisiana, Michigan, Nebraska and New York require a funeral director to handle human remains at some point before burial.
  • The death certificate and a burial transit permit are usually required to transport the body.
  • Burial on private land is usually an issue of local control.
  • Death midwives are available to assist in the process; a comprehensive list of those offering their services can be found at homefuneraldirectory,com.

One coffin maker who specializes in coffins for home funerals says his coffins can be used as a bookcase or coffee table until needed.  One consumer of these multi-functional coffins said that hers "once stood in her bedroom, but her husband, Rudolph, made her move it to a guest room because he pictured her in the coffin every time he laid eyes on it."  Katie Zezima, Home Burials Offer an Intimate Alternative, NY Times, July 20, 2009.

July 24, 2009 in Death Event Planning, Estate Administration | Permalink | Comments (1) | TrackBack (0)

Jackson's Mother Not Contesting Jackson's Will - Yet

Jacksonthree Lawyers for Michael Jackson's mother have denied that she is or will be contesting Jackson's will.  One lawyer offered the following comment regarding recent legal action taken on her behalf, which I previously blogged about: 

In order to preserve her legal options, an application was filed this past Friday with the court to confirm that any possible objections Mrs. Jackson might raise at a later time regarding the appointment of executors would not constitute a challenge to the will itself. It is only fair and she has such a right under the law.

Lawyer: Katherine Jackson Not Contesting the Will - Sort of!, Radar, July 20, 2009.

July 24, 2009 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)

Thursday, July 23, 2009

Unique Headstones

To those who are tired of the traditional marble headstone blandly reciting the name and lifespan of the those interred, consider the following more creative options for your estate plan.

For the slightly disgruntled:

Sick 

For the athlete:

Athlete 

For the proud electrician:

Electrician 

For those with a lot of stuff:

Clutter 

July 23, 2009 in Death Event Planning, Estate Administration | Permalink | Comments (1) | TrackBack (0)

Digital Estate Planning Avoids Hassle for Loved Ones

Digital I have previously written on digital estate planning here and here

A recent article on this issue points out that without knowing the usernames and passwords of a deceased or incapacitated person's online accounts, loved ones must get court authority to these accounts and then work with companies that are not quick to honor such authorizations.

See Andrea Coombes, You Need an Online Estate Plan, WSJ, July 19, 2009.

Special thanks to Patrick S. Sylvester (Attorney & Counselor at Law, Sylvester Law Firm, PC) for bringing this article to my attention.

July 23, 2009 in Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Man Commits Suicide Over I-Phone

Apple An employee of Foxconn International, an Apple product manufacturer, jumped from a 12 story building to his death after one of 16prototype I-phones disappeared under his watch at the Taiwanese company's Shenzhen factory.  His death came three days after the company launched an investigation into the missing phone.  Friends of the employee say that he was beaten, placed in solitary confinement, and his home was searched during the investigation.  

Although the employee's estate plans have not been mentioned, any such documents may prove helpful in determining the true cause of his tragic actions.  

See China I-Phone man commits suicide, BBC, July 22, 2009.

July 23, 2009 in Current Events, Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Article Proposes A Framework for Determining Parentage

Tritt_big 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.

July 23, 2009 in Articles, Estate Administration, Intestate Succession, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 22, 2009

Fulfilling Trustee's Investment Duties

Trustee_investments Christopher P. Kline (wealth management director) has recently published his book entitled The Law of Trustee Investments (ABA 2009). 

The following is a summary of the book:

This book takes a very practical approach to the question that should be asked by every trustee, especially non-professional trustees: How do I fulfill my fiduciary duties to the trust beneficiaries (and thereby avoid liability for failure to do so) in determining how to invest the trust assets?The book begins with an in-depth introduction to investment basics, examines such issues as the law of diversification and the prudent investor act standard, explores how to determine breach and damages, and explains the effects of principal and income acts on investing. It concludes by addressing the drafting of an investment plan by the trustee, a key topic because under the UPIA a fiduciary is judged not on his or her actual investment performance, but rather on the appropriateness of the investment plan. This chapter provides practical guidelines for newly-appointed trustees on how to develop such a plan, including specific comments directed to life insurance trusts, where a life insurance policy is usually the primary investment. Appendices offer sample trust investment language and an investment plan flow chart.

July 22, 2009 in Books - For Practitioners | Permalink | Comments (0) | TrackBack (0)

Reforming Estates and Future Interests Law

Barros D. Benjamin Barros (associate professor of law, Widener University) has recently published his article entitled Toward a Model Law of Estates and Future Interests, 66 Wash. & Lee L. Rev. 3 (2009). 

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

The recent release of a preliminary draft of Division VII of the Restatement (Third) of Property: Wills and Other Donative Transfers, represents a radical departure from this tradition of much complaint but little progress in the effort to modernize and rationalize the basic system of property ownership. The Restatement (Third) is unabashedly reformist and represents the first major institutional effort to clear the unnecessary vestiges of feudalism from this fundamental area of property law. Although subject to criticism in certain respects, the Restatement (Third) presents a cogent and elegant simplification of the system of estates and future interests.
The emergence of the Restatement (Third)suggests that the time is right for NCCUSL and/or the ALI to begin an institutional effort to develop a model law of estates and future interests. Though it is an impressive intellectual achievement, it is doubtful that the Restatement (Third) will achieve substantive reform of estates and future interests law on its own. Courts historically have been hesitant to make major changes in property law, in part because making broad, systemic changes like those proposed in the Restatement (Third) are better suited to the institutional competence of the legislatures. State legislatures, in turn, are unlikely to make systemic changes to the basic law of ownership unless and until those changes have been approved by a major law reform institution.
This Article seeks to kick-start this process by developing a proposed model law of estates and future interests. With a few notable exceptions, the proposed model law is substantively consistent with the Restatement (Third). The approach taken in the proposed model law is informed by problems that have beset prior proposals for legislative property law reform. It intentionally avoids controversial issues, such as substantive reform of the Rule Against Perpetuities, that could derail legislative approval. It is also relatively modest in its scope. It does not attempt to create a uniform and comprehensive code of estates and future interests. Rather, it is designed to act as a patch that updates, but fits within, the existing common law system of ownership.
Part II makes the case for reform of the estates and future interests system. It begins with a basic primer on the characteristics of the current system. It then analyzes the system's unnecessary complexity and explains why simplification is needed to make the system work properly. Part III discusses the advantages and disadvantages of Restatements and model laws as mechanisms to achieve legal reform, and argues that while Restatements may have a role to play in reforming property law, change to the estates and future interests system is best done legislatively. Part III also considers the difficulties that have led to the relative failure of previous model laws of property. These issues, which have been neglected in prior academic work on estates and future interest reform, inform many of the substantive decisions reflected in the proposed model law. Part III also considers the relevance of uniformity to property reform efforts and notes the differences in institutional focus between NCCUSL and the ALI, without expressing an opinion about which of the two would be better suited to formally develop a model law of estates and future interests.
Part IV discusses the substance of the proposed model law, the text of which is included as an appendix to this Article. Part IV first discusses a number of preliminary issues, including the alienability of present and future interests in property and the abolition of feudal distinctions between types of estates. It then comprehensively discusses the simplified systems of present and future interests reflected in the proposed model law. It also discusses a number of important collateral issues, including rules of construction and the abolition of the Doctrine of Worthier Title, the Rule in Shelley's Case, and the Rule of Destructibility of Contingent Remainders. Part IV additionally highlights the differences between the proposals presented in this Article and proposals made in prior academic work and in the Restatement (Third). Part V then briefly discusses issues concerning the retroactive application of many of the reforms included in the proposed model law.
The Article concludes by highlighting some of the major differences between the proposals made here and those that have been made before, and by arguing that the time is right for NCCUSL and/or the ALI to begin the formal institutional process to promulgate a model law of estates and future interests.

July 22, 2009 in Articles, Estate Administration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Jackson's Estate Receives Inquiries for Stake in Sony/ATV

Jackson Several financial firms have inquired about purchasing the Jackson estate's 50% share of Sony/ATV Music Publishing.  John Branca and John McClain, the named executors of the estate who are awaiting court confirmation of their appointments, have said that the estate's stake in Sony/ATV is not for sale.

See Jackson Assets Draw the Gaze of Wall Street, NY Times, July 20, 2009.

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

July 22, 2009 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)