Wills, Trusts & Estates Prof Blog

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

Friday, May 20, 2022

The Problem With Wills: Inheritance Laws Are Stuck in the Past

WillsOnly 44% of Americans report having a will that describes how they would like their estate handled after their death. Without proper planning, intestate-succession laws designed in the mid-20th century will control what happens next.

In a majority of states, nontraditional families are hit particularly hard and can be thrust into legal limbo when a loved one dies. Intestacy laws largely recognize family based on biological relation or legal contract, which does not encompass modern families. 

While there are a menu of ways to designate what happens after death, wills still garner a lot of power. Some experts have argued for making end-of-life planning documents more accessible, such as attaching such documents to income-tax returns. Another suggestion is for states to rewrite intestacy laws allowing for a broader definition of partnership. "As a kaleidoscope of new relationship structures enters the mainstream, we need to consider redefining family based on actions, not just legal status."

For more information:

See Michael Waters, “The Problem With Wills”, The Atlantic, May 17, 2022.

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

 

May 20, 2022 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, May 18, 2022

Article: Conditional Purging of Wills

Mark Glover recently published an article entitled, Conditional Purging of Wills, University of Richmond Law Review, 2022 Forthcoming. Provided below is the abstract:

The laws of most states unconditionally purge a testamentary gift to an individual who serves as an attesting witness to the will. Under this approach, the will is valid despite the presence of an interested witness, but the witness forfeits all, some, or none of her gift, depending on the particularities of state law. While the outcome of the interested witness’s gift varies amongst the states that adhere to this majority approach, the determination of what the interested witnesses can retain is the same. The only consideration is whether the beneficiary is also a witness; whether her gift is purged is conditioned on nothing else.

This Article illuminates a substantial, yet largely overlooked, minority approach to the purging of wills–an approach that, contrary to the majority approach, conditions a testamentary gift on considerations other than simply whether the beneficiary served as an attesting witness. This conditional approach to purging is of three types. First, some states condition an interested witness’s gift on considerations related to the testator’s subjective intent. Second, other states condition the purging of testamentary gifts on procedural considerations regarding how the testator executed the will or how the will was proven at probate. Finally, one state conditions gifts to an interested witness on considerations concerning the substance of the gift.

While generally ignored by legal scholars, conditional purging of wills has steadily grown in favor among policymakers, with eleven states now following this approach, including California, New York, and Texas. Given state legislators’ increasing appetite for conditional purging, a critical analysis of this minority approach is needed now, more than ever, to ensure that conditional purging statutes are founded upon sound policy considerations. To meet this need, this Article analyzes conditional purging statutes in light of the law of will’s overarching goal of accurately and efficiently carrying out the testator’s intended estate plan.

Ultimately, this Article argues that this minority trend is largely misguided because existing conditional purging statutes (1) do not protect the testator from wrongdoing aimed at undermining her intent, (2) make the probate court’s task of administering the decedent’s estate less efficient, and (3) have proven difficult for policymakers to clearly draft and for probate courts to predictably implement. State policymakers should therefore either adhere to the majority approach or more carefully tailor conditional purging statutes to further the policy goals of the law of wills.

May 18, 2022 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, May 4, 2022

Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution in the Post-COVID World

Jessie Daniel Rankin recently published a a note in Georgia Law Review entitled, Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution in the Post-COVID World, Georgia Law Review (2021). Provided below is the abstract to the Article: Estate planning

In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be overturned by another executive order.

The Georgia General Assembly should codify a version of the governor’s executive order to permanently allow remote execution and attestation of testamentary documents. Remote execution and attestation increases access to estate planning services—particularly in Georgia’s rural communities— without sacrificing the traditional safeguards of wills formalities. This Note presents the arguments for permanently adopting remote execution and attestation, explores efforts by other jurisdictions in this area, and presents a suggested set of criteria for the Georgia General Assembly as guidance when considering such legislation.

May 4, 2022 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, April 19, 2022

Article: Uncertainty About the Condonation of Formally Non-Compliant Wills, and the Rectification of Cross-Signed Mirror Wills: Is an Act-Based Model the Solution?

James Faber recently published an article entitled, Uncertainty About the Condonation of Formally Non-Compliant Wills, and the Rectification of Cross-Signed Mirror Wills: Is an Act-Based Model the Solution?, Wills, Trusts, & Estates Law ejournal (2022). Provided below is the abstract to the Article: Estate planning

A recent contribution proposed a processual act-based approach to conceptualising wills in South African law. This approach regards a will as the product of a will-making process in which various parties perform specific acts with specific associated forms of intention in order to establish a will. The act-based model also paves the way for the introduction of an intent doctrine in South African law. This article tests the functioning of the proposed act-based model by applying it to two scenarios: the condonation of formally non-compliant wills in terms of section 2(3) of the Wills Act and the rectification of cross-signed mirror wills in terms of the common law. Both scenarios continue to be plagued by uncertainty as a direct consequence of the lack of a proper definition, explanation and contextualisation of testator's intention in South African law. Regarding condonation, it is found that, because the courts are often left guessing or speculating as to testator's intention, they inevitably overemphasise other aspects such as the form of the document to establish intention for the purposes of condonation in terms of section 2(3). An act-based model could ensure that the decision to condone or not to condone relies solely on whether the document embodies the act of testation. If the act of testation is found to be present (no matter in which shape or form, or by whom it was drafted), the document embodying such an act should be condoned. In terms of rectification, in turn, the act-based model highlights the important distinction between content and formality – the act of testation as opposed to compliance with the statutory formality requirements through the execution of a will. It appears that rectification is appropriate only where an error has caused a discrepancy between the testator's true intention and the intention as expressed in the act of testation contained in the will. Rectification seems less appropriate when dealing with cross-signed wills, which are the result of a flawed execution process. Instead, condonation is much better suited for correcting the formal non-compliance of cross-signed wills.

April 19, 2022 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (1)

Wednesday, April 13, 2022

Article: Rebutting the Presumption of Intentional Revocation of a Will by Destruction: An Examination of Electronically Signed and Remotely Witnessed Wills

Christie Gardiner and Lee Aitken recently published an article entitled, Rebutting the Presumption of Intentional Revocation of a Will by Destruction: An Examination of Electronically Signed and Remotely Witnessed Wills, Wills, Trusts, & Estates Law ejournal (2022). Provided below is the abstract to the Article: Wills

The introduction of electronic execution and remote witnessing and attestation of Wills by New South Wales, Victoria and Queensland in response to COVID-19 invites examination of a wide range of foreseeable probate issues. While wet ink Wills ordinarily result in a single static physical document, a Will executed under the interim measures may result in the production of a range of physical, digital or hybrid records. In this article we discuss whether and how this disrupts the common law presumption of intentional revocation of a Will by destruction when the original Will is last traced to the testator’s possession but cannot be found on their death. We argue that the nature of electronic Wills can pose challenges for rebutting the presumption of destruction. These challenges include poor access to digital records, uncertainty as to which record is the original file and which the copy, and the risks associated with ambiguous document storage practices. However, we also suggest that electronic Wills can provide a level of assurance that can overcome some of these challenges, where at least a copy of the Will is available. Electronic signatures may even serve to displace the need for traditional witnessing requirements, potentially broadening access to Will-making in the community.

April 13, 2022 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, February 15, 2022

Article: Unanswered Questions in Wills and Trusts (and How to Try and Answer Them)

Joyce W. Moore and Christian S. Kelso recently published an article entitled, Unanswered Questions in Wills and Trusts (and How to Try and Answer Them), Estate Planning Journal Volume 14, Issue 1 (2022). Joyce

Provided below is the abstract to the Article: 

The genesis of this Article was to present a set of questions about estate and trust law for which there are no perfect answers under Texas law at present. As is often the case in these projects, the focus evolved a little bit, and a section has been added that presents various construction rules that might be of value to readers. Thus, the authors hope to shed light specifically on the questions presented and help practitioners approach other questions that may not have clear answers.

February 15, 2022 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, February 14, 2022

Article: Just A Will Won’t Cut It: Planning for the Transfer of Non-Probate Assets at Death

Arielle M. Prangner recently published an article entitled, Just A Will Won’t Cut It: Planning for the Transfer of Non-Probate Assets at Death, Estate Planning Journal Vol. 14 Issue 1 (2022). Arielle

Provided below is the abstract to the Article: 

When crafting a comprehensive estate plan for clients, planning for and coordinating assets that pass outside of probate is an imperative part of the process. Most clients’ estates include non-probate assets; in fact, the proportion of these non-probate assets in relation to the overall value of the client’s estate is quite significant. It is not uncommon for life insurance and retirement plans alone to make up the majority of the value of a client’s gross estate. Accordingly, attorneys must advise clients to incorporate these assets into the estate plan, and not just as an afterthought.

February 14, 2022 in Articles, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Wills | Permalink | Comments (0)

Friday, February 11, 2022

Article: Mitigating the Lack of Wills One Brochure at a Time

Katelyn Barker, a law student at Texas Tech School of Law, recently published an article entitled, Mitigating the Lack of Wills One Brochure at a Time, Estate Planning Journal, Vol. 14, Issue 1, 2022. KB

Provided below is the abstract to the Article: 

A majority of Americans die without a will, which floods the courts with lawsuits concerning the disbursal of the deceased’s estate. Litigation also regularly ensues in the form of contested wills on behalf of individuals who die with an outdated will. The lack of knowledge surrounding estate planning is a leading factor contributing to the scarcity of wills in America. Incorporating a prompting system and informational brochure into the driver’s license renewal process will deplete the lack of knowledge component, and people will be mandatorily reminded of estate planning; this will eventually cause the number of updated wills to increase. By targeting young people at the age of eighteen, the prompt and informational brochure will effectively reach the age group cited as having the least number of wills in place. If the estate planning prompt and brochure are adopted by the DMV, there will likely be a momentous drop in the number of lawsuits concerning the estates of those who have died intestate or with an outdated will.

February 11, 2022 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, February 10, 2022

Article: Sucking Success Out of Minor Social Media Influencers: A Call for Testamentary Capacity Rights in Texas

Symphony Munoz, a law student at Texas Tech School of Law, recently published an article entitled, Sucking Success Out of Minor Social Media Influencers: A Call for Testamentary Capacity Rights in Texas, Estate Planning Journal, Vol. 14. Issue 1, 2022. Symphony

Provided below is the abstract to the Article: 

The inability for these minors to create testamentary documents is unfair and inconsistent with other laws that do not prohibit minors from owning property or contracting with these digital asset domains. Furthermore, some states offer minors the limited ability to make important decisions about receiving medical treatment, entering the field of employment, having sex, or getting married. Therefore, the state of Texas should at least allow CVMSMIs the ability to decide where they want their digital assets to go should they die or become incapacitated, especially because digital asset law makes it difficult for heirs to exercise access or control over the accounts of the deceased. This Comment does not call for Texas to completely disregard the legal capacity age requirement. It does, however, call for Texas to rely on whether a qualifying minor has the requisite mental capacity to devise digital assets and the financial value to make it worthwhile, with the traditional safeguards that will continue to protect the interests of a minor (doctrines of undue influence, fraud, and requisite formalities) and the additional safeguards proposed by this Comment.

February 10, 2022 in Articles, Estate Administration, Estate Planning - Generally, Technology, Trusts, Wills | Permalink | Comments (0)

Friday, February 4, 2022

Article: Cross-Border Attestation and Interjurisdictional Wills

Richard F. Storrow recently published an article entitled, Cross-Border Attestation and Interjurisdictional Wills, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

After nearly two years of difficult effort to contain the coronavirus outbreak, remoteness is firmly embedded in the American psyche. Throughout the country, emergency orders permitting will execution and attestation to be conducted by simultaneous audio-visual transmission have allowed estate planning to proceed. There are currently bills in some state legislatures to make permanent the temporary emergency measures adopted during the pandemic. Remote execution and attestation may be here to stay, even in a world where electronic wills remain rare. This article addresses what is likely to become a more familiar manner of will execution in a post-pandemic world and will test the admissibility of interjurisdictional wills to probate against existing rules of probate jurisdiction, choice-of-law norms, case law, and the new directions in will execution forged during the coronavirus pandemic.

February 4, 2022 in Articles, Estate Administration, Estate Planning - Generally, Technology, Travel, Wills | Permalink | Comments (0)