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Add Probating Your Will to Your Bucket List

Susan G. Thatch, Ante-Mortem Probate in New Jersey—An Idea Resurrected?, 39 Seton Hall Legis. J. 331 (2015).

Ante-mortem probate addresses a glaring deficiency with the post-mortem probate model prevalently used in the United States. In post-mortem probate contests the key witness—the testator—is deceased, leaving the courts with only indirect evidence of the testator’s capacity and freedom from undue influence. The relative ease with which individuals dissatisfied with the testator’s choice of beneficiaries may manipulate this indirect evidence encourages spurious will contests. In ante-mortem probate the testator executes a will and then asks for a declaratory judgment ruling that the will is valid, that all technical formalities were satisfied, that the testator had the required testamentary capacity to execute a will, and was not under undue influence. The beneficiaries of the will and the heirs apparent are given notice so they may contest the probate of the will. In addition to providing greater certainty to the testator of the will’s validity, the procedure makes will contests less likely. But ante-mortem probate is not without its price: The ante-mortem process may be extremely disruptive to the testator and the testator’s family. The testator may not wish to disclose the contents of the will nor to face the potential embarrassment that may occur if testamentary capacity is litigated. It involves additional costs and may raise due process and conflict of laws problems.

Susan G. Thatch’s article concisely discusses the advantages and disadvantages of implementing an ante-mortem probate statute in New Jersey and, by analogy, in any state. The article focuses on the debate of whether allowing ante-mortem probate is useful to testators or harmful to families by reviewing the ante-mortem probate model currently used by five states, as well as other models which scholars have suggested. The article takes the view that if the suggested statute is implemented, it should supplement instead of supplant traditional probate options already available to New Jersey citizens. Figuring out the best way to ensure peace of mind for the testator while fully considering the arguments for and against an ante-mortem probate statute forms the foundation of the article.

The article describes three principal models suggested for successfully structuring and implementing ante-mortem probate—the contest model, the conservatorship model, and the administrative model. Although all currently enacted state enabling statutes adopt the contest model, Ms. Thatch explains how each of the models operate and the benefits and disadvantages of each one. Overall, all of the models allow a court to determine if “the testator had adequate testamentary capacity and was free from undue influence” while the testator is still alive. The difference between the models is the extent to which beneficiaries and heirs are required to be notified and represented. By examining both the model currently used and those suggested by scholars, Ms. Thatch provides a comprehensive look at how New Jersey could structure its statute.

Ms. Thatch then analyzes the statutes in the five states where ante-mortem statutes is available—North Dakota, Ohio, Arkansas, Alaska, and New Hampshire. All of the states have statutes based on a variation of the contest model. Ms. Thatch acknowledges that North Dakota, Ohio, and Arkansas, states that have allowed ante-mortem probate since the 1970s, have reported a low usage of the ante-mortem probate procedure. However, Ms. Thatch explains that North Dakota and Ohio practitioners reported that it was valuable to have the statute available.

The article addresses how implementing an ante-mortem procedure in New Jersey would help practitioners have a valuable probate tool available to them. Although Ms. Thatch describes the current alternatives available to safeguard a testator’s intent, such as video-recording the will execution ceremony, creating an inter-vivos trust, using an inter-vivos transfer, and adding a no contest clause, the article explains why all of these options are not enough to ensure that the testator’s capacity will not be contested or that a beneficiary or heir will not claim undue influence.

In addressing the reasons for allowing ante-mortem probate, the article mentions the risk presented by the growing demographic of elderly citizens. Elderly citizens are at a greater risk of either being taken advantage of or having guardians inappropriately allocate or dispose of assets. Testators might benefit from having these pre-death probate disputes handled by ante-mortem probate. Additionally, ante-mortem probate can help ensure that the testator’s intent is not frustrated if the testator decides to depart from “deeply held societal values” when distributing assets. However, the article also mentions that the downside of allowing ante-mortem probate is that it can create family strife. The testator can determine whether the benefits of ante-mortem probate would exceed the potential difficulties. Because there are arguments for and against ante-mortem probate, the New Jersey Law Revision Committee will take into consideration the area of law and practitioners’ opinions before deciding whether the statute would be useful to testators and practitioners in New Jersey.

As a long-time advocate of ante-mortem probate, I highly recommend this article. Ms. Thatch makes well-reasoned arguments for allowing ante-mortem probate after considering both the value the statute could provide to testators and practitioners and the implications that may arise from its use.

[Special thanks to the outstanding assistance of Elizabeth Nanez, J.D. Candidate May 2016, Texas Tech University School of Law, for her assistance in preparing this review.]

Cite as: Gerry W. Beyer, Add Probating Your Will to Your Bucket List, JOTWELL (May 25, 2016) (reviewing Susan G. Thatch, Ante-Mortem Probate in New Jersey—An Idea Resurrected?, 39 Seton Hall Legis. J. 331 (2015)),

Honoring Decedents’ Wishes—Non-Probate Devices Included

Melanie B. Leslie and Stewart E. Sterk, Revisiting the Revolution: Reintegrating the Wealth Transmission System, 56 B.C. L. Rev. 61 (2015).

Two years ago, my friend Myra1 died of cancer. She was survived by her husband Scott and their six-year old daughter Isla, as well as her parents, siblings, and many nieces and nephews. As Scott tried to make sense of his wife’s death, he was somewhat comforted by the knowledge that her pension and life insurance would cover the mortgage and keep their daughter in the only school she had ever known—the school where her mother had taught kindergarten.

Scott’s comfort was short-lived. Although Myra did have a pension and life insurance, neither Scott nor their daughter were the beneficiaries. When Myra began working as a school teacher many years ago, she designated her mother and only nephew at the time as the beneficiaries of her life insurance and state pension. Years later, she married Scott and had a daughter together, but never updated her beneficiary designations. She simply forgot. But she also believed that because she did not have a will, Scott would inherit everything she owned and use it to take care of their daughter. She was wrong. Although Scott inherited her very modest intestate estate, her pension and life insurance benefits went to her mother and oldest nephew instead of Scott—her intended beneficiary and intestate heir.2 The family was torn apart and Isla has had almost no contact with her maternal relatives since her mother’s death.

In their article, Revisiting the Revolution: Reintegrating the Wealth Transmission System, Professors Melanie B. Leslie and Stewart E. Sterk illustrate the law’s failure to address the problems created by the proliferation of non-probate instruments. This failure has deprived intended beneficiaries, like Scott, of assets that the decedent intended them to take and has also enabled wrongful takers, including former spouses, to receive assets that the decedent clearly did not want them to have.

Many individuals hold the bulk of their assets in non-probate instruments, such as retirement accounts, life insurance contracts, payable on death (POD) bank accounts, and revocable trusts. These instruments are not governed by wills law doctrines or the default rules of intestacy—rules that aim, among other goals, to honor decedent’s likely intent. Yet, the law does little to effectuate (and sometimes even frustrates) the decedent’s intent when her assets are held in non-probate instruments. As Leslie and Sterk demonstrate, these non-probate instruments have led to a fragmented and uncoordinated wealth transfer system in which donors, lawyers, and beneficiaries often lack accurate and complete information. They have also increased both the likelihood of error when creating an estate plan and the risk that wrongful takers of assets held in non-probate devices will squander them before their rightful beneficiaries have an opportunity to claim them.

Leslie and Sterk remind us that these problems were not unforeseen. They note that thirty years ago Professor John Langbein cautioned that non-probate transfers would create some potential challenges but he was optimistic that these would be addressed by lawmakers and financial intermediaries. Yet, they have not been. Leslie and Sterk’s examination of the beneficiary forms provided by insurance companies demonstrate that these forms are rarely designed to carry out the donor’s intent. In fact, they are often downright confusing—even to experts like Leslie and Sterk. In addition, state legislators have failed to extend wills law doctrines that are designed to effectuate the decedent’s intent (such as anti-lapse statutes, revocation-upon-divorce rules, and doctrines dealing with spouses and children omitted from a will) to non-probate assets.

In Leslie and Sterk’s view, the benefits of avoiding probate are sufficiently advantageous that we should not throw the baby out with the bath water. Consequently, they focus on reforms that would allow donors to continue to transfer wealth outside of the probate process while also ensuring that non-probate transfers accurately reflect the donor’s intent. For example, they recommend the creation of statutory forms for non-probate transfers to ensure donors understand the transfers they are making. They also recommend that states require custodians of non-probate assets to notify the decedent’s spouse and children of their existence and that they wait thirty to sixty days before distributing the assets to the designated beneficiaries to ensure that they are not dissipated before the intended takers have an opportunity claim them.

Their most important proposal, in my view, is one that some states and the UPC have adopted, but not fully. Leslie and Sterk propose extending all of the wills law doctrines designed to carry out decedent’s intent to non-probate instruments. Although some states apply certain intent-furthering doctrines (like revocation-upon-divorce) to both probate and non-probate instruments, they have not extended all of these doctrines to non-probate devices. Had the rule dealing with an omitted spouse in a will (UPC 2-301) applied to Myra’s pension and life insurance, Scott would have received Myra’s entire pension and life insurance, as she wished.

Leslie and Sterk’s most controversial reform is probably their recommendation to grant executors and administrators authority to alter the decedent’s non-probate transfers when they believe the transfers would thwart the decedent’s overall estate plan. Such power risks increased litigation from beneficiaries who receive less after the executor’s or administrator’s adjustments than under decedent’s designation (as Leslie and Sterk acknowledge). It could also take us down a dangerous road that, in my view, is best avoided. It is quite challenging for neutral factfinders in a courtroom with clear evidentiary rules to determine a decedent’s wishes. I think it would be more difficult, maybe impossible, for an executor or administrator (who is often a family member or friend) to objectively ascertain decedent’s wishes even if she lacks a financial interest in the disposition of assets.

One of Leslie and Sterk’s reforms directly addresses the problem of forgetful donors. They propose creating a nationwide voluntary registration system that would list each individual’s nonprobate transfers. Anytime a registered individual (again, registration is voluntary) attempts to make a transfer, the financial intermediary would remind her about her past designations. This reminder might be all some individuals need to help them coordinate their non-probate transfers and incorporate them into their overall estate plan. Other donors, like Myra, might benefit from an annual email reminder to check their beneficiary designations to make sure they reflect their wishes.

My initial reason for selecting this article as a Jotwell read was personal as I saw firsthand how a nonprobate transfer tore a family apart. However, the reforms Leslie and Sterk recommend are sure to help carry out the intentions of countless decedents even when they chose to avoid probate.

  1. The name of the decedent and her family members have been changed to protect their privacy. []
  2. Myra was a state employee. As such her benefits were not governed by the federal Employee Retirement Income Security Act of 1974 (ERISA) which would have entitled Scott, as her spouse, to at least half her pension. []
Cite as: Solangel Maldonado, Honoring Decedents’ Wishes—Non-Probate Devices Included, JOTWELL (May 9, 2016) (reviewing Melanie B. Leslie and Stewart E. Sterk, Revisiting the Revolution: Reintegrating the Wealth Transmission System, 56 B.C. L. Rev. 61 (2015)),

Reviving the Dead Hand After Repeal of the Rule Against Perpetuities

Reid Kress Weisbord, Trust Term Extension, 67 Fla. L. Rev. 73 (2015).

Over the past few decades, most states have repealed the Rule Against Perpetuities or significantly extended the time period during which trusts may continue to exist. As a result of these changes, estate planners frequently attempt to extend the terms of trusts that were originally created to comply with the Rule Against Perpetuities. They primarily do this through modification doctrines, such as equitable deviation.

In this article, Dean Reid Kress Weisbord argues against the use of modification doctrines to extend the duration of trusts beyond the Rule Against Perpetuities period that was in effect when the trust was created. In addition, he recommends that the drafters of the Uniform Trust Code (the “UTC”) modify the UTC to clarify that modification doctrines do not permit the addition of beneficiaries to the trust who were not identified in the original trust instrument.

In Part I of his article, Dean Weisbord discusses the reasons for opposition to “dead hand control” and the historic application of the Rule Against Perpetuities to minimize long-term dead hand control. In this section, he notes that there are three primary arguments against dead hand control. First, long-term dead hand control creates inflexible restrictions that fail to account for a change of circumstances. Second, the large number of beneficiaries that could exist if a trust were allowed to exist for many generations would create an unmanageable administrative task for the trustee. Third, long-term trusts contribute to the concentration of wealth in upper class families, worsening the gap between rich and poor in our society.

In Part II, Dean Weisbord explores the considerations that a trustee should weigh in deciding whether to file a petition to extend the duration of an irrevocable trust. These considerations include the settlor’s intent, whether the jurisdiction retroactively repealed or abrogated the Rule Against Perpetuities, the transfer tax consequences of extending the trust’s duration, whether there are fraudulent transfer law implications to extending the trust duration, and the trustee’s potential for a conflict of interest in seeking to extend the duration of the trust.

In Part III, Dean Weisbord examines the doctrine of equitable deviation and focuses on how it can be applied to extend the duration of an irrevocable trust. As a general matter, equitable deviation permits the modification of a trust if circumstances arise that the settlor did not anticipate and if modification will further the purpose of the trust. The rationale for this doctrine is that, based on our knowledge of the settlor’s intent, the settlor would have selected different trust terms if he or she had been aware of current circumstances.

The reasons that support using the doctrine of equitable deviation to extend the duration of a trust include the following: (1) a settlor may have intended to create a perpetual trust but failed to consider the possibility that the Rule Against Perpetuities would be repealed or abrogated, (2) there is a related doctrine that allows the modification of a trust to achieve the settlor’s tax objectives, (3) a jurisdiction that retroactively repeals the Rule Against Perpetuities has in effect nullified the requirement that a trust have an ascertainable beneficiary, (4) the law should not discriminate against a settlor who intended to create a perpetual trust but created an irrevocable trust before repeal of the jurisdiction’s Rule Against Perpetuities, and (5) the jurisdiction’s repeal of the Rule Against Perpetuities shows a public policy favoring perpetual trusts.

The reasons against using the doctrine of equitable deviation to extend the duration of a trust include the following: (1) trust term extension hurts current beneficiaries by converting their remainder interests into lifetime interests, (2) equitable deviation exists to implement the settlor’s intent as it existed when the trust was created but it might be used in this case to reconsider the settlor’s original intent, (3) creating new future beneficiaries undermines the core trust law requirement of definite, ascertainable beneficiaries, and (4) there is too much risk of misinterpreting a deceased settlor’s intent.

After analyzing the reasons for and against utilizing the doctrine of equitable deviation to extend the terms of a trust, Dean Weisbord concludes that the arguments against extension outweigh the reasons in favor. The strongest consideration appears to be that current beneficiaries are hurt by converting their remainder interests into lifetime interests.

In Part IV, Dean Weisbord analyzes broader issues with trust term extension and its potential for misuse by corporate fiduciaries. The main issue he sees is the financial incentive of corporate trustees to lobby for trust term extension. The existence of more long-term trusts means more business for corporate trust companies, and they have a huge financial incentive to advocate for repeal of the Rule Against Perpetuities. This repeal not only extends their business interests in current trusts, but it helps their state to attract additional trust business. As mentioned, Dean Weisbord concludes that the UTC should be modified to prohibit the addition of beneficiaries who were not in the original trust instrument.

Dean Weisbord has written an interesting and thought-provoking piece. I find the argument that trust modification to extend the duration of a trust hurts current beneficiaries to be particularly compelling. At a minimum, it seems that the only time when trust modification to extend trust duration should be allowed is when all the beneficiaries provide informed consent.

Cite as: Sergio Pareja, Reviving the Dead Hand After Repeal of the Rule Against Perpetuities, JOTWELL (April 25, 2016) (reviewing Reid Kress Weisbord, Trust Term Extension, 67 Fla. L. Rev. 73 (2015)),

Making Connections

Some multi-parent families are created by law and others are created by science. California and a few other states have acknowledged that a child can have more than two legal parents. Professor Daar calls these multi-legal families or families in law. In their quest to serve their patients, physicians seek ways to enable infertile couples to have healthy children. Those doctors make their “treatment” decisions without considering the legal consequences of their actions. For example, in an attempt to lessen the possibility of a child inheriting a medical ailment from his or her mother, doctors may replace unhealthy mitochondrial with material obtained from the oocyte of a healthy female. The use of this mitochondrial manipulation technology (MMT) may result in a child being conceived using an oocyte containing mitochondrial DNA from two women. Professor Daar refers to this as a multi-genetic family or a family in genetics. Numerous articles and books have been written about multi-parent families. Most of the scholarly literature discusses the family law issues that arise because of the existence of these types of families. In her article, Professor Daar goes in a different direction. She focuses upon the impact that the recognition of multi-parent families may have on the intestacy system.

Professor Daar makes the distinction between legal parents and genetic parents. She explores the steps that can be taken in order for the intestacy system to accommodate multi-legal families. In multi-legal cases, more than two persons have been adjudicated as the child’s legal parents. The article also discusses the intestacy system’s treatment of multi-genetics families. In those situations, even though the parents and the children are related by genetics, their relationships may not be legally recognized. Professor Daar examines the manner in which the children and adults in these families may be treated under the intestacy system. Professor Daar analyzes the options of including multi-parent families under existing intestacy systems, creating new intestacy schemes to accommodate them, or excluding multi-parent families from the intestacy system. Professor Daar analyzes the treatment of multi-parent families under the existing intestacy system. As a part of that analysis, she compares multi-legal families to other nontraditional families. With regards to multi-genetic families, Professor Daar evaluates the treatment of families that are connected to the decedent by blood.

American succession law has changed to accommodate the needs of children who are part of nontraditional families. Professor Daar discusses the rules that apply to stepchildren and adopted children. In most states, stepchildren are not permitted to inherit from their stepparents. However, in a few states, stepchildren may be able to inherit if there are no genetically-related heirs in order to prevent the estate from going to the state. At least one state allows stepchildren to inherit if the stepchild-stepparent relationship started when the child was a minor and clear and convincing evidence indicates that the stepparent would have adopted the child if a legal barrier had not existed. When a child is adopted, the genetic parent-child relationship is severed and the adoptive parent-child relationship is created. Therefore, adopted children can typically only inherit from and through their adoptive parents. Nonetheless, if a child is adopted by his or her stepparent, that child may be permitted to inherit from both the adoptive and genetic parents. The Uniform Probate Code and some states also permit dual inheritance if a child is adopted after the death of both genetic parents. Professor Daar concludes that in states that permit more than two legal parents, the child would be allowed to inherit from and through all of the parents. Thus, these multi-parent children would be legally better off than stepchildren and adopted children. Unlike stepparents and parents who put their children up for adoption, parents in multi-legal families would benefit from being able to inherit from the children.

The law is not likely to treat multi-genetic parents like other non-traditional families. For instance, in cases involving children conceived using assisted reproductive technology, the person donating gametes are not considered to be legal parents of the resulting children. The person donating the mitochondria in MMT will probably be treated like an egg or sperm donor. Hence, that person will probably not be given legal parent status. Since the parent-child relationship would be based on genetics and not law, Professor Daar looks at cases where the right to inherit under the intestacy system is strictly based on genetics. In the case of remote heirs, the law gives preference to distance relatives over close friends. However, non-marital children have to be acknowledged in order to obtain the right to inherit from their fathers. Genetics alone is not enough to create the father-child relationship. Professor Daar concludes that a multi-genetic parent would probably not be treated like other genetically-related persons because it would be difficult to trace the person’s relationship to the decedent to a common ancestor.

Professor Daar examines the viability of an intestacy system that creates a special category for mitochondrial heirs. Under that proposed system, persons contributing genetic material would inherit to avoid having the property escheat to the state. The benefit of this approach would be to ensure that someone genetically-related to the decedent would take the property. This is in keeping with the intestacy system’s preference for transferring property to genetically-related persons. Professor Daar identified three shortcomings of this proposed scheme. The first weakness she points out is that only persons of a female lineage would be able to inherit because the genetic link in MMT situations is based on mitochondrial DNA that only comes from females. Thus, this intestacy scheme would lead to gender discrimination and inequality among similarly situated descendants. Professor Daar’s second concern is related to the integrity of the intestacy system. It may be difficult to identify particular heirs because the parents may not tell anyone that the child was conceived using MMT. Moreover, if someone claimed to be genetically-related to the decedent, proving that fact through testing may be complicated and expensive. Lastly, Professor Daar maintains that, giving mitochondrial families inheritance rights would directly conflict with the manner in which the law treats families created using gamete donations.

Professor Daar argues that, for intestacy purposes, a parent-child relationship should not exist between persons in multi-genetic families created using MMT. Professor Daar bases her argument on the fact that the law does not give other children conceived using assisted reproductive technology the right to inherit under the intestacy system. She also contends that giving intestacy rights to multi-genetic families does not make sense from a legal, practical or social sense. The ways in which families are formed will continue to evolve. Eventually, legislatures and courts will comprehend that the current law is not adequate to deal with the unique issues faced by those nontraditional families. Professor Daar’s article makes a valuable contribution to a conversation that will continue to be necessary as long as there is not a strong connection between the needs of multi-parent families and the intestacy system.

Cite as: Browne Lewis, Making Connections, JOTWELL (March 25, 2016) (reviewing Judith Daar, Multi-Party Parenting in Genetics and Law: A View from Succession, 49 Fam. L.Q. 71 (2015)),

How to Bolster the “Ir” in Irrevocable

Traditionally, irrevocable trusts have been, well, irrevocable. The terms of the trust are fixed and the life of the trust cannot be cut short. Whether irrevocability emanates from the trust document itself or from circumstances such as the settlor’s death or incapacity, traditional irrevocability tied the hands of those interested in modifying the trust to accommodate changes in circumstances. Irrevocability was the doctrine through which the settlor could maintain control of the trust property throughout the life of the trust. Trust law acknowledges the tension between the original intent of the settlor’s dead-hand control and the current desires of the beneficiaries. As this tension is being resolved by greater accommodation of the current beneficiaries’ desires, has the doctrine of irrevocability lost its relevance?

In his recent article entitled Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of “Irrevocable” Trusts, Dean Richard Ausness proposes a compromise. The first generation of trust beneficiaries would remain subject to the traditional rules disfavoring modification and early termination of trusts; subsequent generations of trust beneficiaries, however, would possess a liberating ability to modify a trust without court approval. The language of irrevocability would have renewed life, but only a short life.

Even under traditional trust practices, an irrevocable trust is somewhat of a false moniker. There are several avenues around true irrevocability, but each requires either the consent of the settlor or judicial approval. These avenues are, however, consistent with the norm of honoring the settlor’s wishes.

Under the Claflin doctrine, the beneficiaries of an irrevocable trust may petition for its termination when all material purposes of the trust have been satisfied. Having done what it was supposed to do, a trust under Claflin in effect no longer serves the settlor’s intended purpose. Claflin writes in an assumed premise, namely, that once the settlor’s objective in creating a trust has been accomplished, the trust need not continue. Irrevocability is merely a guarantee of the fulfillment of the trust’s purpose.

The Claflin doctrine, however, is inapplicable to several categories of trust such as spendthrift trusts and support trusts, as the continuance of such trusts is the material purpose thereof. The Claflin doctrine is also ill suited to modify trusts terminating at a set age of the beneficiary or upon a set occurrence. The purpose of the trust is, by definition, not fulfilled until such age or occurrence materializes. When faced with strict adherence to the irrevocability required by a settlor, courts at times embrace “partial termination” of the trust as a middle ground. The portion of the trust continuing intact preserves the original intent while distribution of some trust assets free of the trust accommodates the beneficiaries. Partial termination is a logical form of judicial relief when appreciation of trust assets has resulted in the overfunding of a trust relative to the trust’s purpose. True irrevocability in such cases would not add anything to the fulfillment of the settlor’s intent. The doctrine of equitable deviation offers some relief from strict adherence to the terms of an irrevocable trust, but only with respect to administrative (as opposed to distributive) provisions.

In a nutshell, traditional doctrines provide little support for modifying or terminating an irrevocable trust. Both the Uniform Trust Code and the Restatement (Third) of Trusts relax the stance on trust irrevocability. The Uniform Trust Code permits flexibility to accommodate circumstances not anticipated by the settlor. The restatement permits weighing the material purpose of the trust against the reasons for modifying or terminating the trust. However, both the Uniform Trust Code and the Restatement (Third) of Trusts require judicial involvement in trust modification and termination.

There are various roundabout ways of terminating or modifying a trust without involving the courts. First, the settlor may vest the trustee with the power giving to terminate or modify the trust. A trustee with this authority may act without court intervention unless the trustee abuses his discretion or acts unreasonably. Second, in the trust instrument, the settlor could authorize the trustee to “decant” the trust. This option involves transferring the trust property to a separate trust, created for the beneficiaries. And finally, the settlor could designate a trust protector who has the power to modify or terminate the trust. A trust protector is “a person, other than the settlor or a trustee, who is authorized to exercise one or more powers over the trust.” Despite the fact that trust protectors are separate and distinct from trustees, they still owe a fiduciary duty to the beneficiaries of the trust.

Dean Ausness proposes a chronological limitation on the settlor’s dead hand control by requiring adherence to the settlor’s intent with respect to first generation trust beneficiaries. This acknowledges the settlor’s “right to control the trust property during the lives of persons who are personally known to him.” However, Dean Ausness recognizes that the duration of dead hand control must be limited to protect the legitimate interests of beneficiaries. He thus suggests that members of succeeding classes of beneficiaries – i.e., the settlor’s grandchildren – should be able to freely modify or terminate the trust. Those beneficiaries who do not wish to terminate their interest in the trust may request that their share be placed in a separate sub-trust. This solution “strike[s] a reasonable balance between the rights of the deceased settlor (the dead hand) and those living beneficiaries.”

Cite as: Lynda Wray Black, How to Bolster the “Ir” in Irrevocable, JOTWELL (March 11, 2016) (reviewing Richard C. Ausness, Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of “Irrevocable” Trusts, 28 Quinnipiac Prob. L.J. 237 (2015)),

Enforceability of Predispute Arbitration Provisions

Mary F. Radford, Predispute Arbitration Agreements Between Trustees and Financial Services Institutions: Are Beneficiaries Bound?, 40 ACTEC L. J. 273 (2014).

Disputes are a persistent reality of trust law and even the most meticulously-drafted and expertly-administered trust can be embroiled in litigation, often involving trust investments. In an effort to avoid litigation, many investment advisors and banks include in their routine account agreements, provisions requiring arbitration in the event of any dispute. When a trustee opens an account that contains a mandatory arbitration provision, are the beneficiaries also bound?

Professor Mary Radford delves deep into the practice, cases, and theory of predispute arbitration provisions. Her discerning and experienced eye expertly distills the essence of a trustee’s fiduciary responsibilities with the practical realities of investing in the 21st century. This article appealed to me because it offers a thoughtful, sophisticated, and wide-ranging look at an increasingly common provision. At a time that arbitration clauses are under review, the article connects trust law to the wider world; it is a good example of the law as “seamless web.”

Part I presents the background of predispute arbitration agreements, with a focus on those used in the securities industry. Professor Radford marshals this material in a clear and concise fashion to provide the necessary starting point for the analytical framework going forward. Noting the longstanding federal policy favoring arbitration for the resolution of disputes, it is the SEC and the Financial Industry Regulatory Authority (FINRA) that developed the rules that actually govern these account agreements. The still-controversial rules became widespread after the Supreme Court effectively upheld the enforceability of the provisions in the late 1980s. This securities industry perspective, however, must be reconciled with a trustee’s fiduciary duties. Radford concludes that a trustee does have the authority to enter into these agreements, but that does not necessarily answer the question as to the beneficiary’s rights.

Part II reviews the cases that consider whether a nonsignatory trust beneficiary can be bound by the trustee’s agreement to arbitrate. The cases are few in number and weigh in favor of upholding the arbitration provision. Because the cases tend to be in state court proceedings and some are unpublished opinions, Radford wisely uses the cases, not as precedent, but as illustrations of the range and depth of the legal theories courts use in upholding the arbitration provision.

Part III is the legal center of the article. It discerns and examines the main theories courts have used in determining whether to enforce the arbitration provision against nonsignatory beneficiaries. Estoppel theory, a common approach, simply provides that a person cannot assert a claim that is based on an agreement and then disavow another portion of that agreement. Third party beneficiary is the second theory that courts have used and its focus is on the intent of the parties. Agency theory is also applicable given the contractual nature of the transaction. Often the agreement will include a provision that extends the agreement to the signatory’s successors and assigns. Finally and returning to the basics, courts note that there is a strong federal and state policy favoring arbitration of disputes. Radford provides a useful template for evaluating the impact of predispute arbitration provisions, agreed to by a trustee, on the nonsignatory beneficiaries.

Part IV discusses the current landscape of arbitration agreements. It starts by pointing up the flaws in the cases that allow nonsignatory beneficiaries to avoid arbitration. One court premised its refusal to enforce the provision because the beneficiary had no knowledge of the agreement. Radford points out that this theory would create a “dangerous” precedent. A beneficiary would only need to deny knowledge of the contract in order to avoid the contract. She rightfully points out that it would be far better to allow a beneficiary to proceed against the trustee on grounds of failing to keep the beneficiary reasonably informed than to fail to enforce contracts properly entered into by the trustee. Another court attempted to make the financial services institution a fiduciary to the nonsignatory beneficiaries separate and apart from the account. This is “troublesome” as Radford points out because without the account agreement there is no connection to the nonsignatory beneficiaries. While there may in some circumstances be some duty, it is necessary to first find a relationship between the parties in order to define the duty. Duties do not just exist in the ether.

Taking on the big picture, Radford asks the basic question: what is it that we lose when we force a securities arbitration on a nonsignatory? Radford addresses two major issues to the beneficiary – costs and fairness, and the larger societal issue of the negative impact on the development of trust law. There are no easy answers here. The differential in costs between an arbitration and litigation will depend on a number of factors and cannot be answered definitively. Fairness is equally elusive. Investors are skeptical of the overall fairness in FINRA arbitrations. There is a sense, supported by scholarship, that arbitration favors the “big guys” over the “little guys.” There is also the perception that arbitrators have an industry bias. Interestingly and in response to this criticism, a recent change in FINRA procedures allows customers with claims of $100,000 or more to choose a panel composed entirely of public arbitrators (that is, arbitrators who are not associated with the financial services industry), rather than a mixed panel. A study in 2013 showed that customers who used an all public panel were successful 62% of the time, compared to a 44% rate when a mixed panel was used. This corresponds favorably with a 60% success rate generally for plaintiffs in trials. Finally, there is the policy concern that FINRA arbitrations are not required to give reasons for the decisions. While the result in any particular arbitration may be understandable to the participants, the lack of a reasoned decision means that the “development and the evolution of theories in this area of the law cannot occur” because the “decisions are made under a shroud of secrecy.”

In the conclusion, Radford acknowledges that she has ”grappled with the issues” and “has not been very successful in coming up” with workable solutions. This is not a failure, this is a generous recognition that as long as Congress does not prohibit the predispute arbitration provision, there is little that can be done from the trust law perspective. To prohibit trustees from signing these agreements would likely foreclose trustees from using most financial services institutions; that is simply not practical. Similarly labelling these agreements as a breach of fiduciary duty is equally impractical and runs afoul of the prudent investor standard. Most promising and original is the author’s proposal to amend FINRA rules in cases involving a trust beneficiary. If the panel of arbitrators could include arbitrators who have knowledge of trust law, the “subtleties of the trust-related claims” would not be lost in the arbitration process. This could address the bias perception and perhaps reduce the need to pursue a secondary action against the trustee in court.

Radford’s article is a reminder that in understanding trust law, it is as important to have a sense of the practical realities in which a trust operates, as it is to know the history and theory of the law.

Cite as: Anne-Marie Rhodes, Enforceability of Predispute Arbitration Provisions, JOTWELL (February 25, 2016) (reviewing Mary F. Radford, Predispute Arbitration Agreements Between Trustees and Financial Services Institutions: Are Beneficiaries Bound?, 40 ACTEC L. J. 273 (2014)),

Mapping Chinese Trusts with a Patrimony Compass

Kai Lyu, Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis36 Loy. L. A. Int'l & Comp. L. Rev. 447 (2015).

Kai Lyu explains some of the unique characteristics of Chinese trust law in Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis. China’s civil law basis makes for a strange soil in which to transplant (and codify) a common law concept such as the law of trusts, which owes its origins to Medieval England. But other jurisdictions (Japan and South Korea, for example) have adopted trust law without generating the odd mutations that China has. What happened and how can one approach an understanding of the unique creation that is Chinese trust law?

The two principle unorthodoxies with trust law in China are the ambiguous title to the trust res and the almost unrestrained retained powers of a settlor that the 2001 trust act (enacted by the National People’s Congress after two false starts in 1996 and 2000) generated. Lyu grounds the thinking of the Chinese legislators in the law of contracts, and identifies how contract law falls short as a theory in explaining trusts, even—or perhaps especially—Chinese trusts. Instead, Lyu proposes, Roman law’s patrimony theory provides a lens for understanding the unique characteristics of Chinese trust law.

The Anglo-American trust model contemplates that in most cases the settlor will exit the stage after conveying property to a trustee with the trustee’s acceptance of the res. Following the conveyance, the trustee holds legal title while the trust beneficiary holds equitable title; a bifurcation of legal and equitable title in the property formerly held by the settlor occurs when a trust is created. Following the settlor’s conveyance of property to the trustee, the settlor typically retains little or no further involvement. The tension between the fiduciary duties and expansive property management powers of the trustee and the rights—but rather limited powers—of beneficiaries, creates a dynamic which supports the common law trust and its administration.

Chinese trust law stands some of these basic principles on their heads. Chinese trusts are “shapeless,” according to another recent article by Professor Adam Hofri. Some scholars (e.g., Lusina Ho) hold that the settlor continues to own trust property in a Chinese trust, while others (e.g., Zhen Qu) support the trustee-owned model. Others have concluded that the beneficiaries own trust property, or that the settlor and trustee, or even the settlor, the trustee and the beneficiary, co-own trust property.

Indeed, as Lyu points out, Chinese trust law does not even require a settlor to convey property to a trustee; the settlor can retain possession and merely “entrust” (weituo, 委托) her property to the trustee, invoking perhaps, something more in the nature of a bailment than a trust. The settlor of a Chinese trust does not want to let go; Chinese trust law contemplates trusts where settlors retain extensive rights: the right to accountings and information relative to the administration of the trust; the right to revoke and amend the trust or to intervene and correct a trustee’s actions; the right to dismiss and replace the trustee; the ability to approve self-dealing transactions and trustee fees; and the status of a remainderman upon trust termination.

In many ways, Chinese trust law’s default provisions describe what Anglo-American law would characterize as a revocable or “living” trust with the settlor in essence retaining ownership of trust assets and the trustee merely idling, at least until the trust later becomes irrevocable.

The contract paradigm for Chinese trust law helps explain a 2004 decision by the Shanghai High Court, Huabao Trust Investment Co. v. Shanghai Yanxin Shiye Investment Co. which is explicated and criticized by Lyu. There, a trust was created for commercial purposes (as indeed all Chinese trusts are at present) with the settlor transferring funds to the trustee which was directed to buy shares of the corporate settlor. The settlor transferred its interests to a third party, intending that its assignee step into its shoes. The trustee refused to recognize the transfer and litigation resulted.

The court held—consistent with contract law—that the settlor could assign its rights as a settlor (as well as its rights as a beneficiary) with the consent of the other contractual party, the trustee. Absent the trustee’s consent, however, the assignment was invalid. Thus, the trustee prevailed. The holding contravenes two principles of Anglo-American trust law which would characterize the settlor’s position in a trust as one of status and not contractual right (one’s status cannot be assigned or transferred) and maintain that absent a spendthrift provision a beneficiary’s interest is freely assignable without any requirement of trustee consent.

Lest one conclude that Chinese trusts are not trusts at all, Lyu explains that a trustee’s creditors’ cannot reach assets held in trust. Trust assets are also segregated from the settlor’s separate assets; a settlor cannot truly retain ownership since a bankruptcy of the settlor will not affect trust property. Moreover, the Chinese law imposes genuine duties on trustees to distribute to beneficiaries, account to beneficiaries, protect the confidentiality of beneficiaries, and avoid conflicts of interest.

Into this troubled doctrinal thicket, Lyu introduces patrimony, a Roman law concept which describes the collection of all movable, immovable, real and personal property rights, debts and obligations of a person; their estate. As the French jurist Pierre Lepaulle asserted in the 1930s, special or separate patrimony is a rubric by which common law trusts in a civil law jurisdiction can be explained. A trust, Lepaulle claimed, is an ownerless special patrimony independent of the settlor, the trustee and the beneficiary.

Lyu concludes by showing that separate patrimony theory can explain why a trust can have its own creditors but retain immunity from the creditors of the settlor and the trustee. “The trust patrimony is like a juristic person to some degree,” Lyu notes.

Lyu’s article provides a comprehensive overview of Chinese trust law. Extensive footnotes provide ample support for the article’s conceptualizations as well as its details. Theoretical confusion is often the product of an examination of an area of the law thick with confusion. But Lyu’s article dispels more cobwebs than it spins.

Cite as: Tom Simmons, Mapping Chinese Trusts with a Patrimony Compass, JOTWELL (January 28, 2016) (reviewing Kai Lyu, Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis, 36 Loy. L. A. Int'l & Comp. L. Rev. 447 (2015)),

Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion

Bridget J. Crawford and Anthony C. Infanti, A Critical Research Agenda for Wills, Trusts, and Estates, 49 Real Prop. Tr. & Est. L.J. 317 (2014), available at SSRN.

A Critical Research Agenda for Wills, Trusts, and Estates by Professors Bridget J. Crawford and Anthony C. Infanti is a ”must read” for wills, trusts, and estates practitioners and scholars. The authors highlight key contributions in the category they loosely refer as “critical trusts and estates scholarship” and challenge each of us to add our voices to these important issues. Some of the works that Crawford and Infanti highlight were written by trusts and estates professors, others were penned by professors who teach in other areas of the law, and some are even authored by non-lawyers.

Crawford and Infanti remind us that issues of race, gender, sexual orientation, socio-economic class, and disability should not be relegated to just a passing reference in scholarly works. As both scholars and practitioners, we need to examine how and why the law has developed the way that it has, and how historically disenfranchised groups have been affected. The variety of works highlighted by Crawford and Infanti reminds us that even in the “money” area of law—“tax and wills,” there are critical issues that need to be discussed inside and outside of the legal academy.

There is often talk about the relevance of legal scholarship and whether it is valued or useful to those outside of the legal profession. Further, with blogs, social media and other outlets for voicing critical viewpoints, the traditional law review article may need some new energy. Crawford and Infanti have provided us with a useful roadmap. It is now up to us to start researching and writing.

We cannot talk about American property law without discussing race. Historians and legal scholars have provided scholarship in this area. We know that European settlors claimed Native American land and African American slaves were treated as property rather than human beings. However, Crawford and Infanti remind us that “there is so much more to discover about the intersection of race with wills, trusts, and estates.” Some examples they suggest are as follows: how cultural factors influence planning for incapacity and death, how race affects attitudes about wealth and inheritance, and mapping the judiciary’s responses to charitable trusts. Also race, is far more complex than black and white and the authors point out that legal scholarship is almost non-existent in the area of Latino, Asian-American and Native American testation.

Gender issues also permeate the law of wills, trusts and estates. Crawford and Infanti reference articles where scholars have studied the differences between men’s wills and women’s wills, how gender informs estate planning and how probate courts have interpreted wills and treated men and women differently. The authors suggest additional topics worth exploring include “gender differences in attitudes about investment” and “the practical impact of legal reform on how men and women organize their finances.” They even suggest that the study of the legal profession should not be avoided. Has the field accommodated women? Does the lack of gender diversity impact reforms?

Although same sex marriage is now legal in all 50 states, there are still issues worthy of scholarly dialogue. As the traditional family of mom, dad and two children declines, perhaps default rules should be revised so that the “multiplicity of family forms” are addressed. Also worth exploring are the attitudes of attorneys who advise LGBT clients. Cultural awareness and sensitivity of practitioners and judges is important. Can such individuals be trained to be sensitive to the needs of nontraditional families?

Like the authors, I find it surprising that scholars have not written more frequently about class based issues in the area of wills, trusts and estates. The authors suggest future research that explores the obstacles faced by low and middle income testators as they create estate plans.

Finally, the authors look at the issue of disability and how it intersects with race, gender, class, gender identity and sexual orientation in the area of wills, trusts and estates.

After reading this article, I was inspired to take out a pen and begin to write. Lawyers are the change agents of our society. Although we would like to think of inheritance law as a private matter, Crawford and Infanti remind us that it is not. The law needs to be “evaluated for bias”. When the law safeguards those who have or continue to be disadvantaged, we are all in a better place.

I look forward to the critical scholarship that is written as a result of this article.

Cite as: Camille Davidson, Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion, JOTWELL (December 15, 2015) (reviewing Bridget J. Crawford and Anthony C. Infanti, A Critical Research Agenda for Wills, Trusts, and Estates, 49 Real Prop. Tr. & Est. L.J. 317 (2014), available at SSRN),

Theoretical and Practical Concerns in Moving to a Federal Inheritance Tax

Wendy C. Gerzog, What’s Wrong with a Federal Inheritance Tax, 49 Real Prop., Tr. & Est. L.J. 163 (2014), available at SSRN.

Professor Wendy Gerzog has written a thought-provoking article reviewing inheritance tax systems both in the United States and abroad, and then Professor Lily Batchelder’s proposed comprehensive inheritance tax (CIT).1 Professor Gerzog has three principal criticisms of inheritance tax systems: (1) they inequitably tax the recipient based on the closeness of relationship to the donor or decedent (which rationale is “neither a good measure of ability to pay nor an effective means of wealth redistribution,”); (2) they lack a gift tax back-up; and, (3) they apply to more individuals, increasing administrative costs and decreasing compliance rates. (P. 200) As to Professor Batchelder’s CIT, Professor Gerzog supports its elimination of the “disparity of burdens for some beneficiaries under the current transfer system” and its solving “the problems of timing and valuation abuses that involve actuarial problems,” but Professor Gerzog contends that the CIT “engenders its own problems”: (1) increased family wealth; (2) increased valuation abuse; (3) increased recordkeeping costs; (4) increased compliance problems; and, (5) increased complexity. (P. 201.) Professor Gerzog concludes that “the transfer tax system works relatively well and has significant practical and theoretical advantages over a federal inheritance tax or a CIT.” (P. 201.)

Professor Gerzog believes that basing tax rates on a decedent’s relation to a beneficiary is “objectionable on fairness considerations.” (Pp. 164-165.) Given that most wealthy decedents leave their property to other wealthy individuals and the majority of beneficiaries are the decedent’s close relatives, there are comparatively few estates with non-relative heirs, and “no policy rationale supports subjecting those few unrelated individuals to either a higher or a lower tax rate.” (P. 165.) Professor Gerzog contends that an inheritance tax with greater tax rates when there are “a fairly small number of the beneficiaries” or “a distant familial relationship … of the decedent’s beneficiaries” “cannot realistically achieve the reduction of concentrated family wealth and its associated power.” (P. 166.)

Professor Gerzog’s second principal criticism of inheritance tax systems in general is that they lack a gift tax back-up on inter vivos transfers. (P. 166.) Professor Gerzog notes that, because inheritance taxes generally do not apply to gifts over which the decedent retained control until (or shortly before) the decedent’s death, wealthy individuals might avoid an inheritance tax by making lifetime gifts while retaining control over the property, which “contrasts sharply to the inclusion of such transfers under the current estate tax provisions.” (P. 167.) Professor Gerzog’s criticism is apt. An inheritance tax, however, need not stand alone—in Professor Batchelder’s proposal, for example, her Comprehensive Inheritance Tax aggregates a recipient’s gifts and bequests.

Professor Gerzog’s third principal criticism of inheritance tax systems in general is that, because an inheritance tax focuses on the decedent’s beneficiaries rather than just the decedent alone, more individuals being subject to the tax increases administrative costs, decreases compliance rates, and “results in a lifetime of unreported cash and untracked property transfers among family members.” (P. 200.) Professor Gerzog’s other criticisms include: (1) increased complexity because any new inheritance tax system “would likely need to borrow or replicate much of the law and language of the current transfer tax system,” (2) the valuation distortion questions and abuses in the transfer tax area would resurface in an inheritance tax, and (3) “fractional interests discounts would proliferate.” (P. 168)

Professor Gerzog then discusses Professor Batchelder’s proposed CIT. Professor Batchelder “suggests merging transfer taxes into the income tax system when gifts or bequests received by an individual aggregate to more than $1.9 million” and, beyond that amount, “the donee’s excess would be subject to income tax inclusion at a 15% surtax above the donee’s income tax rate,” imposed “to replicate the effect of the payroll tax.” (P. 187)

Professor Batchelder, in her proposal, cites several times to her (and Surachai Khitatrakun’s) estimate that “about 22% of heirs burdened by the U.S. estate tax have inherited less than $500,000, while 21% of heirs who inherit more than $2,500,000 bear no estate tax burden” (P. 170.) Professor Gerzog argues that Professor Batchelder’s numbers “do not explain to what extent this onus is the result of the decedent’s design, or is the result of the applicable apportionment statute, or is the consequence of a lack of progressivity in our current flat transfer tax rate or an estate planning technique.” (P. 170.)

Professor Gerzog, in responding to Professor Batchelder’s criticism that the present transfer tax system taxes inherited wealth less than earned income, concedes that “the current transfer tax may well under-tax wealth” but argues that “any inheritance tax advocating a high exemption level per recipient is open to that same criticism.” (Pp. 187-188.) Professor Gerzog proposes that “Congress more easily could accomplish the same result [that the 15% surtax does] by raising estate and gift tax rates or by lowering the exemption level.” (P. 188.) Professor Gerzog contends, “For the majority of recipients, the CIT has no significant policy objective and may well decrease the taxation of wealth” and that, because of the $1.9 million per donee exemption, “family wealth concentration would persist.” (P. 188.)

Professor Gerzog suggests that “Professor Batchelder’s information may simply argue for reinstituting a more progressive rate structure into the current flat transfer tax rates.” (P. 172.) Professor Gerzog, noting that the then-current, 2014 current estate and gift tax exemptions ($5.34 million combined) are larger than “the $1 million gift tax and the $3.5 million aggregate transfer tax exemption in 2009 when Professor Batchelder published her CIT proposal,” writes that “the skewed burden Professor Batchelder addresses more likely affects a small minority of heirs today.” (Pp. 172-173.) Following Professor Gerzog’s argument, I wonder whether the portability of any unused exemption (available now but not in 2009) also reduces the existence of that skewed burden.

Another problem Professor Gerzog identified in the inheritance tax is that “focusing on beneficiaries rather than on the decedent multiplies the number of taxpayers involved in reporting transactions that are inherently difficult to police.” (P. 174.) She writes, “Compliance rates would decrease significantly under an income-inclusion or CIT system, and administrative costs would increase.” (P. 174.) Professor Gerzog contends that, to the extent that increased complexity “falls on lower income taxpayers, whom Professor Batchelder aims to assist, the CIT would increase those taxpayers’ tax return preparation costs.” (P. 191.) I would submit that, given Professor Batchelder’s CIT allowance to spread bequests “over the current year and the previous four years,”2, the CIT would likely increase those taxpayers’ costs to prepare multiple tax returns, or, at least, to obtain tax advice on whether to file multiple tax returns.

The carryover basis feature of the CIT, to me, also increases complexity and cost for the decedent’s personal representative and for the decedent’s beneficiaries. Professor Lawrence Zelenak (addressing carryover basis systems in general3 and Professor Laura E. Cunningham and Professor Noël B. Cunningham4 have expressed concerns about carryover basis, among them: (1) fiduciaries must equitably apportion among the beneficiaries both value and basis5, (2) fiduciaries must “increase the basis of appreciated carryover property by the death taxes (federal and state estate taxes, and state succession tax)”6 and, under the CIT, both the decedent’s “adjustment for CIT taxes” on the decedent’s death and the beneficiaries’ “own adjustment for CIT taxes on unrealized appreciation” at decedent’s death7, and (3) basis must be accounted for over one or more generations.8. (On a side note, Professor Batchelder’s article proposing the CIT appears not to address decedents’ differing levels of income tax basis to be carried over to beneficiaries—I assume in large part because of the difficulty to obtain such information.) Cleverer people than I could think of more elegant solutions, but I wonder whether a decedent, in an attempt under decedent’s will or trust to reduce potential complexity and cost from carryover basis under the CIT, might have the decedent’s estate (and not decedent’s beneficiaries) realize gain by providing: (1) mandatory or discretionary authority to decedent’s personal representatives to sell decedent’s property, or (2) pecuniary bequests under decedent’s will or trust.

In her piece, Professor Gerzog comprehensively discusses inheritance tax systems in general and Professor Batchelder’s CIT in particular. The goals of any inheritance tax system usually include allocating tax burdens according to ability to pay, redistributing wealth, and providing an ostensibly more equitable and efficient tax system. For any inheritance tax system to achieve those goals and to improve upon the existing transfer tax system, Professor Gerzog writes persuasively about several theoretical and practical issues that must first be addressed.

  1. Lily Batchelder, What should Society Expect from Heirs? The Case for a Comprehensive Inheritance Tax, 63 Tax L. Rev. 1 (2009). []
  2. Batchelder, supra note 1, at 64. []
  3. Lawrence Zelenak, Taxing Gains at Death, 46 Vand. L. Rev. 361, 368 (1993). []
  4. Addressing Professor Batchelder’s CIT in Laura E. Cunningham and Professor Noël B. Cunningham, Realization of Gains under the Comprehensive Inheritance Tax, 63 Tax L. Rev. 271 (2009). []
  5. Id. at 276, citing to Zelenak, supra note 3, at 368. []
  6. Zelenak, supra note 3, at 368. []
  7. Cunningham and Cunningham, supra note 4, at 277. []
  8. Zelenak, supra note 3, at 368; Cunningham and Cunningham, supra note 4, at 277. []
Cite as: Michael Yu, Theoretical and Practical Concerns in Moving to a Federal Inheritance Tax, JOTWELL (November 18, 2015) (reviewing Wendy C. Gerzog, What’s Wrong with a Federal Inheritance Tax, 49 Real Prop., Tr. & Est. L.J. 163 (2014), available at SSRN),

Injecting Class into Trusts and Estates

Trusts and estates scholarship typically focuses on the rich. This is not surprising, as the field primarily concerns itself with wealth transmission, and the wealthy are the ones who have wealth to transmit. In Making Things Fair, Professor Naomi Cahn and Amy Ziettlow inject class into the field by examining how lower-income individuals understand the wealth transmission process. This is a valuable and much-needed intervention, both for its empirical methodology and its focus on the lived experiences of lower-income Americans.

This article contributes on three fronts. The first contribution is empirical. The investigators recruited study participants by searching Baton Rouge newspaper obituaries, from which they compiled the names of children and step-children of recently deceased individuals under the age of 70 within a 7-month period in 2011. Of these 2,700 individuals, they gathered reliable contact information for 1,500 of them, and invited these to participate in the study by snail mail, email, and telephone. Their final sample size was sixty-three, appropriate to a qualitative and exploratory study of this type. The study used semi-structured interviews to delve into family dynamics, the dying process, and wealth transmission.

This qualitative methodology allows the authors to probe into how people experience the wealth transmission process, and the data serve to confirm two maxims of trusts and estates scholarship and practice: advance planning is good, and the law must keep up with changing family structures. On these two points, it appears that there is little difference between lower-income and upper-income families. Other themes emerge, however, that are less emphasized in the scholarship. For instance, for many families money is not necessarily the sole or primary driver of the post-death property division process. Objects that have sentimental worth because of the memories they hold, such as an old jacket or truck, may become centrally important in spite of their lack of economic value. This type of insight provides a nice contrast with the attention-grabbing estate battles that appear in the news headlines. Too often those stories focus on quarrels by distant relatives over large estates, such as those of the reclusive copper heiress Huguette Clark or the anonymous street photographer Vivian Maier.

The most important empirical finding, however, is how absent the law is from the property distribution process for lower-income Americans. As a matter of knowledge, people do not know the law, even though they might think they do. As a matter of planning, people do not take advantage of willmaking, the primary way in which the law allows people to sort out their affairs in advance. Even as a matter of actual property distribution, people often settle things informally without any active use of the law.

The authors, however, do not stop at reporting their empirical findings. The article’s second contribution is theoretical, attempting to understand more abstractly the role of law at death. Cahn and Ziettlow posit four possibilities, drawing on existing literature on the functions of law. First, the law could be seemingly irrelevant, just as it was in Robert Ellickson’s famous study of communal norms among sheep ranchers. Second, the law could just be a series of default rules with legal override mechanisms, implemented by the judiciary. Third, the law might serve a channeling function, reinforcing social norms. Fourth, the law could be a strategic resource, deployed as needed in situations of conflict. Cahn and Ziettlow found evidence for all of these understandings of the law in their data. As each family represented a separate “microcosmic community of norms,” the law was used differently by its constituent members based on disparate needs and goals.

The article’s third contribution is in the grab-bag of legal reforms it suggests. The authors note that in their interviews they did not see avoidance of planning due to fear of death or the complexities of preparing a will. Instead, study participants simply seemed ignorant of the importance of planning. Thus, they argue for making planning easier by presenting more opportunities for it, accompanied by information to help individuals through the process. The primarily example provided is statutory form wills. These would be offered at the various points in time when people interact with the government (tax time, renewing a driver’s license, registering to vote) or experience crucial life events (marriage/divorce, birth of children).

In addition to this soft manipulation of choice architecture, Cahn and Ziettlow suggest a host of changes in substantive inheritance doctrines, based on the factual scenarios they encountered in their interviews. For example, they endorse functional parenthood for inheritance purposes. This is to address non-adopted step-children, who they see as deserving some form of inheritance despite being outside children. In addition, they would weaken the presumption of revocation upon divorce for probate and nonprobate assets, perhaps limiting it only to stale provisions that are dated ten years prior to divorce or death. This speaks to the situation they found in several interviews of ex-spouses reentering the picture during the dying process, providing caregiving services and supporting an adult child. The authors reason that the decedent may want to thank such ex-spouses for this work, despite the divorce.

Lastly, the authors would enact reforms to protect nonprobate assets that might be particularly important after death but also particularly vulnerable to loss. They would require greater and recurring disclosures about the nature of life insurance, protections against lapse of said policies, and more stringent protections against using life insurance as the basis for a loan. For other nonprobate assets, such as retirement accounts, the authors focus on having clear and standardized beneficiary forms, which might list beneficiaries by relationship rather than by name, to allow for flexible updating once family changes occur.

Because of its multiple contributions, Making Things Fair is valuable on several fronts. The empirical contribution diversifies trusts and estates scholarship, which lacks a robust empirical tradition. At the same time, it helpfully highlights the blind spot of class in the field. The theoretical contribution is more modest, providing a useful compilation of legal theories and applying them to the situation of death in an empirically informed way. The law reform ideas are intriguing, and many of them may be worth pursuing. Some of the reforms, however, may need a stronger empirical basis than this study provides before they are adopted. This, of course, only points to the need for more empirical scholarship! Thus, this article has succeeded in beginning a conversation about what we need to know before we can make things fair.

Cite as: Alexander Boni-Saenz, Injecting Class into Trusts and Estates, JOTWELL (October 14, 2015) (reviewing Naomi Cahn & Amy Ziettlow, “Making Things Fair”: An Empirical Study of How People Approach the Wealth Transmission System, 22 Elder L. J. 325 (2015)),