Wills, Trusts & Estates Prof Blog

Beyond Privity of Blood: Intestacy and Charity

Adam J. Hirsch's (Napoleon A. Jones, Jr. Professor of Law, University of San Diego School of Law) article, Beyond Privity of Blood: Intestacy and Charity, was recently published in 76 University of California Law Journal 353 (2025) (formerly Hastings Law Journal) and is available on SSRN. Here is the abstract of the article:

When individuals die without leaving a will, the law of intestacy functions to distribute their estates to a surviving spouse and/or close blood relatives. Yet, this default regime fails to account for the possibility that some individuals wish to allocate part of their estates to charity. Drawing on empirical evidence, including data presented here for the first time, this Article advocates building a charitable component into intestacy in those cases where majorities of decedents prefer to establish estate plans transcending traditional heirs. Evidence suggests that this majority preference arises in four situations: (1) where the decedent was extremely wealthy, (2) where the decedent was less wealthy but died without descendants, (3) where the decedent died without descendants and had made charitable donations, irrespective of wealth, and (4) where the decedent died without any known relatives. The Article proposes personalizing the process of intestacy further by granting charitable shares, when called for, to those causes which decedents had individually supported during their lifetimes. The Article assesses the structural costs and benefits of these innovations and concludes that they would not prove excessively complex or administratively burdensome.

David Horton reviewed the article in Jotwell: Trusts and Estates.  The review is available at https://trustest.jotwell.com/charities-as-heirs/

Wealthy Britons gift more money over inheritance tax fears

Affluent Britons are increasingly gifting money to family members amid concerns that Rachel Reeves may introduce stricter inheritance tax (IHT) policies. Wealth managers report a rise in gifting and tax planning since the October Budget, which included plans to tax pensions and agricultural land under IHT. Analysts fear Reeves may further expand IHT to raise government revenue, prompting individuals to take advantage of the current seven-year rule, which exempts gifts from IHT if the giver survives for seven years.

Recent government changes mean unused pensions will be subject to a 40% IHT rate from 2027, while agricultural land above a certain value will face a 20% levy from 2026. These reforms have fueled more strategic gifting among the wealthy to mitigate future tax burdens. Despite growing IHT receipts, Reeves’ commitment not to increase income tax, national insurance, or VAT has left limited options for revenue generation, heightening concerns about further tax increases.

For more information see Emma Dunkley and Emma Agyemang "Wealthy Britons gift more money over inheritance tax fears" The Financial Times, January 25, 2025. 

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

66th Anniversary of the Day the Music Died

Writing this blog from Lubbock, Texas, today is especially significant as the 66st anniversary of the plane crash that killed Buddy Holly (a Lubbock native), Ritchie Valens, The Big Bopper (Jiles Perry Richardson, Jr.), and the plane's pilot.

Like most Americans, Buddy Holly died intestate.

August is "National Make a Will Month"

August is National Will Month, a time dedicated to raising awareness about the importance of having a will. This observance encourages individuals to consider the legal, financial, and personal benefits of drafting a will. By highlighting the significance of wills, National Make a Will Month aims to reduce the number of people who pass away without one, ensuring that their assets are distributed according to their wishes and minimizing potential conflicts among surviving family members.

A will is a crucial legal document that outlines how a person's assets and affairs should be handled after their death. Without a will, the distribution of an individual's estate is left to state laws, which may not align with their personal desires. Having a will provides several key benefits. It allows individuals to specify how their assets should be divided, ensuring that their beneficiaries receive what they intended. This can include financial assets, property, personal belongings, and other valuables. A will can designate guardians for minor children, providing clear instructions on their care and making provisions for dependents with special needs. By clearly outlining one's wishes, a will can help prevent disputes among family members and potential legal battles over the estate. Additionally, a will can appoint an executor to manage the estate, ensuring that the deceased's affairs are handled smoothly and in accordance with their instructions.

Creating a will is a straightforward process that ensures your assets are distributed according to your wishes and provides peace of mind. Start by listing your assets and deciding on their distribution, including guardianship for minor children if necessary. Choose a trustworthy executor to manage your estate. You can draft your will with the help of an attorney or use online tools. Ensure your will is signed and witnessed according to state requirements, and consider having it notarized for added authenticity. Store the original will in a safe place, such as a fireproof safe or secure deposit box, and inform your executor and close family members of its location. By taking these steps, you can create a legally binding document that protects your loved ones and honors your wishes.

Grief, Then Paperwork: The Messy, Thankless Job of an Estate Executor

Managing the estate of a deceased relative is a challenging and time-consuming task that can strain relationships. The executor, usually named in the will, must handle assets, debts, taxes, and distribution to heirs. This role often comes unexpectedly and is burdensome.

Greg Kern, for example, spent over 200 hours managing his father-in-law’s $430,000 estate, causing family tensions. Many underestimate the time and cost involved, often requiring legal assistance, which can be expensive and lengthy. Without a will, complications and delays are common. Executors are sometimes unwilling or surprised by their appointment. Estate lawyers advise choosing capable and willing executors, considering impartial third parties to avoid family conflicts. Kern’s experience involved significant paperwork and family disagreements, particularly regarding the sale of a house. He faced challenges closing financial accounts and dealing with legal requirements, such as obtaining special certifications.

In cases without a will, the process can be more complex. Pat Kayajanian’s estate, managed by her stepdaughter, faced delays and legal hurdles due to the lack of a will and stepfamily status. Similarly, Violet Shockley's executor struggled to locate all heirs.

Issues also arise when minors inherit. Texas law requires court-appointed attorneys to assess the suitability of the surviving spouse as an administrator, adding months to the process. Charlotte Sanders, whose husband died without a will, faced delays accessing funds and had to navigate court requirements to protect her children’s interests.

Managing an estate is often a thankless, complicated job requiring significant effort and legal navigation.

For more information see Ashlea Ebeling "Grief, Then Paperwork: The Messy, Thankless Job of an Estate Executor", The Wall Street Journal, June 29, 2024.

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

Article: Beyond Privity of Blood: Intestacy and Charity

Adam J. Hirsch (University of San Diego School of Law) recently published, Beyond Privity of Blood: Intestacy and Charity, 2024. Provided below is an Abstract:

When individuals die without leaving a will, the law of intestacy functions to distribute their estates to a surviving spouse and/or close blood relatives. Yet, this default regime fails to account for the possibility that some individuals wish to allocate part of their estates to charity. Drawing on empirical evidence, including original data presented here for the first time, this Article advocates building a charitable component into intestacy in those cases where majorities of decedents prefer to establish estate plans transcending traditional heirs. Evidence suggests that this majority preference arises in four situations: (1) where the decedent was extremely wealthy, (2) where the decedent was less wealthy but died without descendants, (3) where the decedent died without descendants and had made charitable donations, irrespective of wealth, and (4) where the decedent died without any known relatives. The Article proposes personalizing the process of intestacy further by granting charitable shares, when called for, to those causes which decedents had individually supported during their lifetimes. The Article assesses the structural costs and benefits of these innovations and concludes that they would not prove excessively complex or administratively burdensome.

Article: The Nexus between Marriage & Succession Laws: Dissecting Estate Allocation and Governance in Botswana

Godknows Theko (University of Botswana - Department of Law) recently published, The Nexus between Marriage & Succession Laws: Dissecting Estate Allocation and Governance in Botswana, 2024. Provided below is an Abstract:

Navigating the intricate web of estate administration and distribution post-mortem is a critical discourse in the ever-expanding realm of jurisprudence. The Republic of Botswana has witnessed a significant development in case law pertaining to this matter. At the heart of these discussions is the crucial question of identifying the rightful heirs—a topic that gains an added layer of complexity when the lineage of children is scrutinized, sparking debates over their rightful inheritance. This issue has not only piqued the interest of legal scholars but has also become a touchstone of deliberation within the august courtrooms, where justice has been meticulously weighed and dispensed.

The courts pronouncements have shed light on the intricate dance between the intertwined strands of customary and common law in matters of succession and inheritance, all set against the context of marital unions and the commanding presence of the renowned Form B.

The aim of this article is to capture and convey the judicial acumen that has emerged from Botswana's courts, embarking on a jurisprudential voyage through the complexities of succession and inheritance. It endeavours to do so with a narrative enriched by the storied language of legal aphorisms and maxims, echoing the timeless edict 'Fiat justitia ruat caelum'—let justice be done though the heavens fall.

Should intestate shares be created for charities rather than relatives?

Adam Hirsch (Napoleon Jones Professor of Law and Herzog Endowed Scholar, University of San Diego School of Law) has recently posted on SSRN his article entitled Beyond Privity of Blood: Intestacy and Charity. Here is the abstract of his article:

When individuals die without leaving a will, the law of intestacy functions to distribute their estates to a surviving spouse and/or close blood relatives. Yet, this default regime fails to account for the possibility that some individuals wish to allocate part of their estates to charity. Drawing on empirical evidence, including original data presented here for the first time, this Article advocates building a charitable component into intestacy in those cases where majorities of decedents prefer to establish estate plans transcending traditional heirs. Evidence suggests that this majority preference arises in four situations: (1) where the decedent was extremely wealthy, (2) where the decedent was less wealthy but died without descendants, (3) where the decedent died without descendants and had made charitable donations, irrespective of wealth, and (4) where the decedent died without any known relatives. The Article proposes personalizing the process of intestacy further by granting charitable shares, when called for, to those causes which decedents had individually supported during their lifetimes. The Article assesses the structural costs and benefits of these innovations and concludes that they would not prove excessively complex or administratively burdensome.

Is a Will Better than Intestacy?

Professor Emerita Kris Knaplund of the Pepperdine Caruso School of Law recently published her article entitled Is a Will Better than Intestacy?, 92 U. Cin. L. Rev. 631 (2024).  "The article asks and answers 5 questions: Are deathbed wills rare, obviating the need for strict attestation requirements? Does having a will mean a shorter probate period than dying intestate? Less litigation? Fewer abandoned cases, because the testator has chosen the personal representative? These are all arguments of the fundamentalism crowd to encourage the probate of more wills."

Mysterious Chicago recluse Joseph Stancak’s $11 million unclaimed estate thrown into chaos by newly surfaced will

Joseph Stancak died in 2016, leaving behind $11 million with no will or apparent heirs. Stancak's estate is considered one of the largest unclaimed estates in the United States, with more than 119 distant relatives around the globe who were informed that they would receive payouts. Then, a mysterious will surfaced in Cook County probate court this summer.

In June, a petition was filed asking that the newly turned-up will be probated, so a hold was put on any inheritance payouts until the will's legitimacy could be sorted.

The document presented was a will dated August 19, 2015, leaving Stancak's entire estate to Smart Kids Child Care Inc. Only two copies were produced: one to be held by Smart Kids Child Care Inc. and one by the lawyer who allegedly drafted the will, a personal injury attorney John Alleman. But Alleman died in a plane crash a few months after the will was signed.

The document has been called "highly suspicious" and "poorly drafted" and was only discovered after the unclaimed estate made international headlines. Attorney Ken Piercey, who was appointed independent administrator of Stancak's estate, says Stancak had zero connection to Smart Kids Childcare, which is located in the Bronx.

For more information see Mitch Dudek “SW Side recluse’s record-setting $11 million unclaimed estate thrown into chaos by newly surfaced will” Chicago Sun Times, October 21, 2023.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.