Wills, Trusts & Estates Prof Blog

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

Wednesday, March 23, 2011

Testamentary Intent

Deborah Gordon Deborah S. Gordon (Visiting Assistant Professor of Law, Earle Mack School of Law at Drexel University) recently published her article entitled Reflecting on the Language of Death, 34 Seattle U. L. Rev. 379 (2011). The abstract available on SSRN is below:

For centuries, wills scholars have lamented the difficulty of discerning intent from testamentary documents but have failed to examine how these documents might be written differently. A will can reflect and reinforce the decedent’s relationships with friends and family, can express support for institutions and causes in which the decedent believes, and can establish the decedent’s lasting legacy. And even if the will is simple and mundane, dealing only with the decedent’s personal possessions or naming her fiduciaries, its terminal nature imbues the will with talismanic power. Often the final significant written communication by its author, a will has the potential to be a monument – or indeed a testament – to the decedent’s loved ones, to express her vision for the future or her version of the past. More often than not, however, today’s will is written in an insider’s private language, so that testator after testator exclaims at her will execution ceremony about the formal, dry, and sometimes archaic, legalistic writing. Is this necessary?

This article explores the advantages and pitfalls of infusing wills with expressive language. Legal scholars have widely acknowledged the power and resonance that personal narratives bring to briefs, judicial opinions, and other persuasive legal writing. This scholarship has suggested the critical role of narratives in giving meaning beyond mere rules and doctrine. Remarkably, given the intense emotional aspects of death, scholars have largely ignored the role of expressive and individualized language in wills. This article takes seriously the ways in which such language might enhance the meaning and significance of transactional documents, such as wills.

After exploring the costs and benefits to testators, beneficiaries, fiduciaries, courts and society of expressive will drafting, this article argues that encouraging a testator to use richer, more varied language can actually help the testator focus on her own intentions and then communicate those intentions to the people she leaves behind. Moreover, this article rejects the argument that including apparently “unnecessary” language in a will inherently results in more litigation. Rather, it suggests that expressive language has the potential to avert litigation and, when contests do occur, facilitate the court’s analysis of the challenged instrument. Far from “unnecessary,” the inclusion of expressive language in a testator’s final will and testament can strengthen the testator’s connection to her personal identity and her community, an important step in furthering the ultimate goal of having her property pass effectively as she intends and desires.

March 23, 2011 in Articles, Wills | Permalink | Comments (0) | TrackBack (0)

Report on Hofstra Estate Planning Program

The following report was written by Bridget Crawford (Professor of Law, Pace University School of Law) and is reproduced with her kind permission:

Yesterday I attended a program on “Estate Planning in 2011 and Beyond” sponsored by Hofstra Law School and held at the Princeton Club of New York. The program was moderated by Mitchell Gans (Hofstra). The panelists were Jonathan Blattmachr (formerly Milbank, Tweed, Hadley & McCloy LLP), Bernard Krooks (Littman Krooks LLP), Carlyn McCaffrey (Weil, Gotschal & Manges LLP), Gideon Rothschild (Moses & Singer LLP) and Joshua Rubenstein (Katten Muchin Rosenman LLP). One of the speakers observed early in the program that “if you don’t know who these people are, you probably shouldn’t be here.” It’s true – the panelists are some of the leading voices in the field of estate planning. Here’s a quick run-down of the program.


Josh Rubenstein kicked off the program with a discussion of Estate Planning for Unmarried Couples: Detriment or Opportunity? It was a quick tour through some of the unique issues that unmarried couples face when using common estate planning techniques.


Gideon Rothschild covered asset protection planning, with a presentation entitled Asset Protection Planning – Keeping It All in the Family. His materials included a careful look at the state laws in the ten jurisdictions that afford spendthrift protection to a settlor’s interest in a self-settled discretionary trust.


Bernard Krooks focused on Elder Law and Special Needs Planning. This is a complex area that many sophisticated estate planning attorneys need to know more about, and Mr. Krooks’ slides and visual aides helped identify the salient issues for those in the field.


Carlyn McCaffery spoke on Formulaic Planning to Reduce Transfer Tax Risks. She covered five different types of formula clauses that may be used when valuation is a concern: (A) those that self- adjust the quantum of property transferred; (B) those that self- adjust the consideration received; (C)those that define a transfer by reference to the value of some larger interest; (D) those that allocate transferred property based on its value; and (E) those that fix consideration by reference to the value of the transferred property.


Jonathan Blattmachr closed the program with a look at the future of estate planning practice. He predicts that many future legal services will become available through computer-based systems and non-lawyers, such as “legal document assistants” as are available in California. His related article, “Looking Back and Looking Ahead - Preparing Your Practice for the Future: Do Not Get Behind the Change Curve,” 36 ACTEC J. 1 (2010) is worth a read by anyone interested in the impact of technology on law practice.


It was a very high-quality discussion. The audience included Hofstra alums and many practicing lawyers (with and without Hofstra affiliations). Kudos to Hofstra and Professor Gans for a great program.

March 23, 2011 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

First Full-Face Transplant Performed in the U.S.

Face transplant A Texas construction worker who was left blind and without eyebrows, a nose, or lips after a power line accident two years ago just received the nation’s first full face transplant in Boston. More than 30 doctors, nurses, and staff performed the 15-hour operation. He is listed in good condition.

At the time of his injury, Dallas Wiens had no insurance. Medicaid covered about 24 surgeries, and the Defense Department paid for this surgery through a $3.4 million grant for transplant research.  The new federal health care law enabled him to qualify under his father’s plan for necessary drugs until he turns 26. After that, he’ll receive Medicare, which covers the disabled.

The world’s first partial face transplant was performed in France in 2005. The world’s first full face transplant was performed in Spain in 2010.

See Marilynn Marchione and Russell Contreras, Boston Hospital Performs Nation’s First Full Face Transplant, The A.P., Mar. 21, 2011.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this to my attention.

March 23, 2011 in Disability Planning - Health Care, Science | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 22, 2011

Advanced Elder and Guardianship Law Courses

CLE The State Bar of Texas is sponsoring the Advanced Elder Law 2011 and Advanced Guardianship Law 2011 courses in Houston on April 7-8, 2011. Highlights include:

  • Healthcare Reform Act
  • Social Security Benefits and Your Clients
  • Elder Abuse and Exploitation
  • Trial of a Guardianship
  • Complex Guardianship Administration Issues

March 22, 2011 in Conferences & CLE, Elder Law, Guardianship | Permalink | Comments (0) | TrackBack (0)

Overview of Shariah-Compliant Wills

Mohammedi Omar T. Mohammedi (Attorney at Law, New York, NY) recently published his article entitled Shariah-Compliant Wills:  An Overview, 25 Prob. & Prop. 58 (Jan./Feb. 2011).  The introduction is below:

Remembrance of death and expectation of the afterlife are cornerstones of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Shariah law is obligatory on all Muslims wishing to comply with their religious obligations. As the Muslim population continues to expand, the area of Shariah-compliant wills offers practitioners a new and interesting field to explore. Because of its complexity and its differences with the established legal theories of intestacy law in the United States, Islamic inheritance law can prove to be an engaging and important subject.

March 22, 2011 in Articles, Religion, Wills | Permalink | Comments (0) | TrackBack (0)

Downsides to Pre-Mortem Probate

Alaska I previously blogged about Alaska becoming one of the few states that allows the pre-mortem probate of wills. While these laws may help prevent emotionally and financially draining estate battles, there are some downsides to the practice, including:

  • If an individual revises his will or trust, he will have to go through the process of pre-mortem probate again.
  • An individual who seeks a pre-mortem ruling must be willing to reveal the contents of his documents and face arising conflicts.
  • If an out-of-state individual goes through the process in Alaska, there is no guarantee that the probate court in the individual’s state of residence will accept the pre-mortem ruling from Alaska.

See Anne Tergesen, A Will and a Way, W.S.J., Mar. 21, 2010.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.

March 22, 2011 in New Legislation, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Pros and Cons of Estate Taxes

Estate Tax Congress first created the estate tax almost a century ago in an effort to decrease economic inequality, but the tax never achieved that original goal. So why not get rid of the estate tax?

  • It taxes income that has escaped taxes throughout a wealthy individual’s lifetime, such as unrealized gains.
  • In recent years, it has raised about $20 billion annually. Any amount of revenue helps when we’re so far in debt.
  • It encourages charitable bequests because giving to charities cuts what estates owe.

Some downsides to estate taxes include: people waste time and money organizing their estates to minimize estate taxes, beneficiaries are not productive members of society, and some estates might have to sell assets to pay the estate taxes.

See Roberton Williams, It’s Not About Economic Equality, N.Y. Times, Dec. 16, 2010.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.

March 22, 2011 in Estate Tax | Permalink | Comments (0) | TrackBack (0)

Monday, March 21, 2011

10th Annual Frozen Dead Guy Days

Frozen The Nederland Area Chamber of Commerce recently hosted the 10th Annual Frozen Dead Guy Days. An excerpt from the announcement for the festival is below:

A wild and wacky celebration of all things dead, frozen, and frigidly fun, Frozen Dead Guy Days (FDGD) has gathered international acclaim. Winning the Governor's Award for Best Promotional Event in Colorado and the Reader's Digest Top Five Winter Festivals in the United States, this year's FDGD promises to be the biggest yet - with more events, sponsors, and general cold craziness.

FDGD was founded as a tribute to Grandpa Bredo Morstoel from Norway. After his death due to a heart condition in 1989, his daughter and grandson packed him in dry ice and shipped him to a U.S. cryonics facility for eventual reanimation. In 1993, they moved Grandpa to Nederland, CO in hopes to start their own cryonic facility. He has been sheltered in a Tuff Shed for 21 years, where dry ice keeps him frozen and preserved.

The Beeck sisters who produced the 1998 documentary "Grandpa's in the TUFF SHED" and its 2003 sequel “Grandpa’s Still in the TUFF SHED,” will serve as the Festival Parade's Grand Marshals, helping to celebrate the region’s most celebrated subzero senior citizen. The trio has created award-winning documentary films and founded the world-class Boulder International Film Festival, praising Grandpa as "launching our careers and serving as the quirky, darkly humorous material for our film which became the foundation for this festival ten years ago."

Always taking place during the first weekend of March, there are three days of events, contests, and musical entertainment. The Blue Ball and Coffin Races are the most popular attractions. Nederland Area Chamber of Commerce Vice President, Blue Hessner, exclaimed that "The crowds and coverage of last year's festival means that this year's activities will amass people throughout the world who are intrigued by our small town, Grandpa Bredo, competition in the cold, and plain silliness." Bringing crowds to Nederland in the dead of winter creates lasting memories for business owners and participants.

From the "ReAnimate Yourself" Beer Tent, full of vendors and live music by Onda, The Zydecoasters, The Mile Markers, etc., to the 303 Vodka "Disco Is Not Dead" Friday Night Fever Blue Ball featuring 70's decor and music by DJs Jahsonic, Sundragon, and Milk, participants and observers alike will be amused by the awarding of the look-alike "Stayin' Alive" Grandpa and the "Dancing" Ice Queen, along with the 200+ dressed-up contestants in the Harvest House Coffin Races. Winners receive prizes and cash.

So what else in entrailed in this eccentric festival? Activities include:

* Tours to see Grandpa (with Bo the Iceman) * Polar Plunge (benefiting the Nederland Fireworks Fund) * Parade of Hearses * Brain Freeze Ball * Frozen T-Shirt Contest * Frozen Salmon Tossing * Icy Turkey Bowling * Rocky Mountain Oyster Eating Contest * The Newly-Dead Game (new this year! testing how well life partners know each other’s last wishes) * Harvest House Coffin Races (emceed by KPBI's Uncle Nasty) * Grandpa's Mall Crawl along First Street (closed off to traffic for a chilling pedestrian experience) * Pancake Breakfasts (benefiting Nederland Area Seniors) * "Grandpa's in the Tuff Shed" Movie Screenings * Sunday Funday with Kid Coffin Races, Igloo Decorating, Face Painting, Snow Treasure Hunting, and more

For a complete schedule of events: http://www.nederlandchamber.org/events_fdgd-home.html

March 21, 2011 in Death Event Planning, Science | Permalink | Comments (0) | TrackBack (0)

Need for Better End-of-Life Planning

Advance directive By communicating your wishes about end-of-life care to loved ones, you can help relieve stress when the time comes for them to make decisions regarding your health care. Studies have found that one-third of people who are forced to make treatment decisions are negatively impacted. The most common emotional effects include guilt and stress regarding whether the individual made the right decision. If making preferences known is so beneficial, why do only one third of Americans have some form of advance directive? There are many possible reasons, including the fact that most of the documents are too difficult for many Americans to understand. States are beginning to realize the shortfall and are undergoing reforms regarding end-of-life planning. For example, many states are working on Polst programs, which I recently blogged about.

See Laura Landro, A Push for Better End-of-Life Planning, W.S.J., Mar. 15, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.

March 21, 2011 in Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Top SSRN Downloads

Ssrn_2 Here are the top downloads from January 18, 2011 to March 19, 2011 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank Downloads Paper Title
1 781 The Fundamentals of Wealth Transfer Tax Planning: 2011 and Beyond
John A. Miller, Jeffrey A. Maine,
University of Idaho College of Law, University of Maine School of Law,
Date posted to database: January 27, 2011
Last Revised: January 27, 2011
2 409 The Politics and Policy of the Estate Tax - Past, Present, and Future
Michael J. Graetz, Michael J. Graetz,
Columbia Law School, Yale Law School,
Date posted to database: February 6, 2011
Last Revised: March 17, 2011
3 215 The Debt-Equity Distinction
Robert Flannigan,
University of Saskatchewan,
Date posted to database: January 21, 2011
Last Revised: March 7, 2011
4 195 Exposing the Hocus Pocus of Trusts
Kent D. Schenkel,
New England Law - Boston,
Date posted to database: February 28, 2011
Last Revised: February 28, 2011
5 150 Educational Tax Benefits: More Please
Bridget J. Crawford, Shamik Trivedi, Kimberly Bliss,
Pace University School of Law, Tax Analysts, Pace University School of Law,
Date posted to database: January 12, 2011
Last Revised: January 12, 2011
6 107 Lawyers and Slaves: A Remarkable Case of Representation from the Antebellum South
Jason Gillmer,
Gonzaga University - School of Law,
Date posted to database: February 4, 2011
Last Revised: February 4, 2011
7 107 The Economic Structure of Fiduciary Law
Robert H. Sitkoff,
Harvard Law School,
Date posted to database: March 11, 2011
Last Revised: March 11, 2011
8 103 The Prudent Investor Rule and Trust Asset Allocation: An Empirical Analysis
Max M. Schanzenbach, Robert H. Sitkoff,
Northwestern University - School of Law, Harvard Law School,
Date posted to database: January 29, 2011
Last Revised: March 10, 2011
9 80 The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps)
Peter Nicolas, Mike Strong,
University of Washington School of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 9, 2011
Last Revised: February 11, 2011
10 44 What Leona Helmsley Can Teach Us About the Charitable Deduction
Ray D. Madoff,
Boston College - Law School,
Date posted to database: January 19, 2011
Last Revised: January 19, 2011

March 21, 2011 in Articles | Permalink | Comments (0) | TrackBack (0)