Jul 31, 2025 Goldburn Maynard
Adam Hofri-Winogradow & Mark Bennett,
Looking through Trusts, __
Osgoode Hall L. J. __ (forthcoming), available at
SSRN (Oct. 9, 2024).
The issue of whether trust beneficiaries should be treated differently from individuals who own their assets directly has been a central one in the trusts and estates world for centuries, and it shows no signs of disappearing. While it would be preferable to have a standard, across-the-board response to this matter, its intractable nature reveals a balancing of interests. The trust is a centuries-old fiduciary relationship that is not nefarious in and of itself. Much as they do with corporations, governments find themselves torn between respecting such voluntary arrangements according to their terms or setting them aside to prevent abuse. The purpose of look-through rules is to prevent trusts from undermining other policy goals, such as facilitating debt collection or restricting certain government benefits to individuals who demonstrate financial need.
In a forthcoming article, Professors Adam Hofri-Winogradow & Mark Bennett compare trust look-through approaches taken by five nations: the U.S. (and its states), Canada (and its provinces), England and Wales, Australia, and New Zealand. The authors’ focus is primarily on liability and means-testing avoidance by trust beneficiaries, which they argue is improper. To paint a picture of how weighty and emotion-provoking these issues can be in the real world, consider three examples featuring Gary, a hypothetical trust beneficiary of a $10 million trust set up by his mother Gwen before her death from a terminal illness. Gary’s father, as trustee, in entitled to make distributions to Gary in his sole discretion:
- At 18, Gary applies for food stamps and Temporary Assistance for Needy Families after being kicked out of his home by his father for smoking marijuana. Should the government consider his interest in the trust when determining if he qualifies for public benefits?
- At 21, Gary goes out drinking with friends. On his drive home he gets into an accident. Jenna, the driver of the other vehicle is left unable to walk and undergoes numerous surgeries, both lowering her quality of life. Jenna is awarded $5 million in damages for her medical costs, pain, and suffering. Should she be able to reach the trust assets to satisfy the judgment?
- At 25, Gary goes to Vegas and gets married to his high school sweetheart, Mary. Two years later, they divorce, and Mary seeks alimony and a property settlement. Should Gary’s trust assets be considered in determining settlement and alimony amounts?
Hofri-Winogradow & Bennett’s article highlights how the answers to these questions depend on the laws of the jurisdiction which govern the trust document. For example, in the U.S., most states have allowed asset protection through the use of spendthrift and discretionary trusts. The spendthrift trust restrains voluntary alienation of trust assets by the beneficiary and involuntary alienation by his general creditors. The discretionary trust protects assets because, as distributions are subject to the trustee’s discretion, the beneficiary has no vested interest in the trust and a general creditor cannot even sue to compel the proper exercise of discretion. The authors are particularly concerned with the discretionary trust and its descendant, the massively discretionary trust, in which trustees have the discretion to add or remove individuals or entities from the class of beneficiaries and even to bring the trust to an end.
Each of the five jurisdictions analyzed by the authors has a set of anti-avoidance rules to prevent trust beneficiaries from escaping liability for public policy reasons. For example, if Gary lived in Australia, he would be subject to look-through rules to ascertain how much control he had over the trust. New Zealand has comparatively weaker look-through rules in this scenario. But notably, if Gary lived in Canada, the UK or U.S., the financial eligibility rules for public assistance would likely disregard the trust assets, thus allowing him to qualify for government benefits such as food stamps or Medicaid. To some extent this makes sense since he is not guaranteed any distributions. However, if the trustee were to make distributions in a given year, those would count as a financial resource of Gary when applying for public benefits.
Jenna would probably not fare well in her claim against Gary, despite his recklessness. Although favored by some commentators, a public policy exception for tort victims seeking to reach assets contained in a spendthrift or discretionary trust exists only in a few states in the U.S.. Mary, however, would likely fare better than Jenna because most jurisdictions that otherwise recognize strong protections against creditors provide exceptions for family support claimants. Australia, for example, allows the court to disregard certain transfers in the case of divorce. Similarly, most U.S. states allow for spousal claims against spendthrift and discretionary trusts. While she would not be guaranteed success, particularly in states with domestic asset protection trusts, Mary would at least have a shot.
Hofri-Winogradow & Bennett argue that look-through rules should be strengthened to close loopholes that subvert public policy goals, like enhancing social equality. Their proposal is a draconian default presumption which would treat the entire discretionary trust as property of the beneficiary, in the absence of a showing that the trustee only intended to distribute a portion of the trust property. In Gary’s case this would mean that the entire value of the trust could be subject to inclusion. However, the authors do not expect that this would be the result. Instead, the default presumption would force trustees to disclose reasonable amounts that they plan to distribute and thus subject those amounts to claims by creditors. The trustee of Gary’s trust might provide evidence that he plans to distribute $200,000 per year to Gary. That part of the trust would then be subject to claims and countable as income for public benefit purposes. Such a rule would represent a massive change to current law and would certainly face strong opposition both from the wealthy and from jurisdictions that actively compete to attract trust business to their states.
Jul 22, 2025 Adam Hirsch
Professor Lawrence M. Friedman has had a remarkable career. Much of his work has focused on legal history, and he has served as president of the American Society for Legal History in recognition of his distinction in that field. He also helped to pioneer empirical legal studies as a subdiscipline of scholarship. And, most fortunately for those of us who work in wills-and-trusts, he has contributed to our area as well, with a stream of articles and one book, beginning in the early 1960s and continuing until today—no fewer than six decades of superb scholarship on inheritance law.
With this extended essay, Friedman returns to the expansive style of some of his early work in the field. His subject is the lengths to which people will go to leave an eternal mark upon the world. As Friedman concludes, it is a fanciful quest. Try as one might, no one can defy the laws of nature—and nothing lasts forever. Nevertheless, in a variety of ways explored in this essay, people keep on trying.
For those of sufficient means—and sufficient credulity—cryonic preservation offers the hope of resurrection in a distant future of medical miracles. Those individuals who choose to immerse their remains in liquid nitrogen often seek to freeze their assets as well, and “[s]ome perfectly respectable law firms have gone after this small but lucrative market” (P. 711) by creating cryonic preservation trusts for their clients. “Both of these actions reflect a vain hope of conquering death,” (P. 763) Friedman observes—it is the stuff of science fiction. And whereas those of lesser means cannot endeavor to preserve themselves, they can at least specify their manner of burial and set aside funds to maintain their gravesites. Because “even ordinary people have immortal longings,” (P. 738) such specifications and funds are common. Most states today allow persons to create trusts for the care of an individual gravesite in perpetuity. But this device, too, is doomed to failure. Trust funds struggle to keep up with costs and eventually “the lettering on tombstones fades into oblivion.” (P. 739.) As regards our corporal beings, we might say, death is the great leveler.
Yet, if literal immortality is impossible, people might still pursue “vicarious immortality,” (P. 763) and it is this possibility that occupies most of Friedman’s attention. People can create trusts that survive their deaths.
Some people establish trusts for future generations of family members. Others establish trusts to provide for charitable causes. And still others (albeit only occasionally) seek to fortify either sort by accumulating, rather than distributing, income, using compound interest to build trusts, their creators imagine, of “monstrous size,” (P. 698) thereby creating “a monument (in a way)” (P. 706) to themselves.
Envisioning vicarious immortality “might provide some sort of psychological lift; some sort of satisfaction in this vale of tears.” (P. 706) But in the end, it is always futile. Directions for accumulation invite lawsuits, some of which succeed and all of which eat away at capital; and trust investments have no immunity from risk. The most famous trust of this sort—the Thellusson trust in Great Britain—ended with a value only slightly greater than when it began, sixty-three years earlier.
Trusts and foundations for charitable causes can continue in perpetuity and in that respect cater to immortal longings. Historical constraints on these entities have vanished. Nonetheless, they cannot endure in their original forms due to the cy pres doctrine, allowing courts to alter the terms of trusts when they become impossible or impractical to effectuate if settlors have a “general charitable intent”—that is, so long as settlors would prefer that the terms mutate, rather than fail with distribution back to heirs. As Friedman discerns, courts are predisposed to find general charitable intent, even when it is improbable—even when, for example, it means that trusts will no longer discriminate, despite their creators’ bigoted or segregationist convictions. And, he might have added, this judicial predisposition is now codified in the Uniform Trust Code, which presumes general charitable intent rebuttably for twenty-one years and conclusively thereafter. The result is that, in the long run, charitable trusts and foundations perpetuate only the names of their (forgotten) founders, not their visions or personalities.
As concerns trusts for descendants, the laws—and consequences—have become similar. Whereas the Rule Against Perpetuities traditionally functioned to restrict (indirectly) the duration of private trusts for individual beneficiaries, most states have now either abolished the Rule or watered it down to allow trusts of such long duration as to be effectively unlimited. Simultaneously, whereas lawmakers in the United States traditionally insisted that restrictions and conditions tacked onto private trusts remained strictly enforceable over time, modern law has relaxed this requirement, again allowing courts to modify trust terms to account for changed circumstances. These legal developments are not unconnected. Perpetual private trusts with anachronistic restrictions would be no more tolerable to the living than charitable trusts with antiquated provisions. Vicarious immortality is unachievable, even in historical time. In geological time, billions of years from now, “the solar system [will] explode[],” (P. 753) and that will be that.
Now in his 90s, Friedman continues to write insightfully, with singular gracefulness and wit. This essay offers a shining example of his work, to which this brief review hardly does justice. If Friedman’s scholarship proves not quite immortal, it will continue to enthrall readers for many years to come.
Jun 24, 2025 Reid Weisbord
When legal scholars identify and analyze a social problem, they usually conclude with law reform recommendations for potential adoption by courts or legislatures. In The Dark Side of Codifying U.S. Trust Law, Professor Thomas Gallanis reboots that familiar template by reversing the inquiry: This superb article evaluates how a reformer’s choice of institutional forum—court versus legislature—can impact the effectiveness of legal intervention. Gallanis presents an intriguing case study that documents the plight of several well-intended trust law reforms which Gallanis contends inadvertently created fertile ground for legislative capture by special interests. Gallanis describes how the political influence of special interests ultimately persuaded state legislatures to alter model legislation in ways that undermined the reformers’ original policy goals.
The article begins by surveying the modern trend of American trust law toward “codification,” which refers to the replacement of traditional judicial doctrines with statutory reforms. Model legislation drafted by the Uniform Law Commission has proven especially impactful. Notable examples of codification include the Uniform Trust Code (2000) (adopted in 35 states), the Uniform Powers of Appointment Act (2013), the Uniform Trust Decanting Act (2015), the Uniform Directed Trust Act (2017), and the updated Uniform Fiduciary Income and Principal Act (2018). As Gallanis explains, “U.S. trust law now is heavily statutory.” (P. 287.)
The trend that Gallanis characterizes as the “dark side” of trust law codification happens between the promulgation of model legislation and a subsequent enactment by state legislatures. When special interest groups, such as bar associations, corporate fiduciaries, and bankers, object to provisions of a uniform act, they lobby state legislatures for changes that protect their respective constituencies. Gallanis thus contends that the Uniform Law Commission’s decision to propose model legislation for any given rule can open the door to political tinkering of time-tested judicial doctrine that might have otherwise been left alone.
Gallanis explains that courts lack the institutional capacity to enact sweeping legal reforms under the influence of political lobbying. Unlike legislatures, courts must confine their decisions to the case at hand, they cannot accept policy input from non-party lobbyists, and they must respect binding precedent. Thus, because restatements of the law are intended for consideration by courts rather than legislatures, the American Law Institute’s restatement of any particular judicial rule or doctrine poses a lower risk of uninvited tinkering than model legislation. As Gallanis explains, “the process by which a draft statute, such as a uniform act, becomes enacted is more open to capture by a state bar association or other state-based interest group than the process by which a Restatement rule becomes part of a state’s decisional law.” (P. 305.) Gallanis illustrates his thesis by presenting detailed examples from the trenches of trust law reform.
In the first of three examples, Gallanis describes the evolution of general powers of appointment from their common law origins to their recent codification by state legislatures influenced by special interests. A power of appointment is a donative transfer in which a donor grants the donee (the powerholder) power to decide who ultimately receives the appointive property and when. If the donee can exercise the power for the donee’s own benefit, then the power is “general.” If the power does not permit the donee to exercise it for the donee’s own benefit, then the power is “nongeneral” (or “special”). Thus, as Gallanis explains, a “general power of appointment is akin to ownership.” (P. 291.)
When the donee of a general power dies, the appointive property is generally includible in the donee powerholder’s estate (thus potentially subjecting the property to estate taxation) but the property’s basis as a capital asset resets to fair market value when inherited by the object of the power (thus reducing the tax on the object’s capital gain when the inherited property is later sold). Thus, the powerholder’s unrealized capital gain escapes taxation but may be subject to the estate tax. But the possibility of estate taxation is remote because, with the historically high exemption from federal estate and generation skipping transfer (GST) taxes ($13.99 million in 2025), only a miniscule number of estates are now large enough to generate federal estate or GST tax liability. So, for the vast majority of estates that are unlikely to generate any federal transfer taxation, general powers of appointment have become a popular way of reducing capital gains tax liability without the potential downside of estate tax liability. Gallanis notes: “As one estate planner confessed to me privately, general powers are now ‘sprinkled like candy.’” (P. 295.)
Crucially, however, powers of appointment were never intended to provide the powerholder with asset protection against creditors’ claims. As Gallanis notes, at common law and under the Restatement (Third) of Property, “property subject to a general power of appointment is subject to the claims of the powerholder’s creditors.” (P. 291.) Likewise, the Uniform Powers of Appointment Act § 502(a) provides that property subject to a general power of appointment is subject to creditors’ claims against the powerholder if the power is presently exercisable or the powerholder’s estate is insufficient to satisfy all liabilities. (P. 292.) That rule, however, was met with a frosty reception in many state legislatures, as Gallanis explains: “To avoid the consequences of ownership—such as creditor access—bar and other associations successfully have lobbied to change the statutory rule on creditors’ rights in nine of the twelve state enactments of the Uniform Powers of Appointment Act.” (P. 295.) In four states, appointive property is reachable only to the extent the power is exercised. But Gallanis reports that, in another four states, “[p]roperty subject to a general power is exempt from claims of the powerholder’s creditors even if the power is exercised.” (P. 295.) (Italics in original). Gallanis opines that “[t]his latter result would have been hard to imagine as a matter of decisional law. The door to this outcome was opened by the process of codifying the law of powers of appointment in the Uniform Powers of Appointment Act.” (P. 296.)
Drawing upon his deep experience as reporter for multiple law reform projects sponsored by the American Law Institute and the Uniform Law Commission, Gallanis concludes by urging the Uniform Law Commission to recognize “the possibility that the codification itself of the common law can open the door to outcomes inimical to what the Commission seeks to achieve.” (P. 315-16.) (Italics in original). In this beautifully written article, which effortlessly explains even the most technical nuances of trust law in clearly understandable prose, Gallanis presents a compelling case for a minimalist approach to codifying the common law. Sometimes, indeed, less is more.
Jun 10, 2025 Sarah Waldeck
In The Curious Case of the James Brown Estate, Lee-ford Tritt explores how certain provisions of the Copyright Act of 1976 can upend an artist’s estate plan. Professor Tritt makes a persuasive case for legal reform and documents a messy disconnect between the fields of copyright law and estates law. This disconnect is particularly unfortunate because the havoc-wreaking provisions of the Copyright Act were enacted to help ensure that artists are fairly compensated for their creations. Congress could not have intended a loss of testamentary freedom—and in some cases, prolonged and expensive estate litigation—to be the price artists pay for this protection.
Professor Tritt writes that many copyright experts are unaware of relevant estate planning techniques, and that many estates experts are unaware of the termination rights provided in the Copyright Act. (P. 778.) Prior to reading Professor Tritt’s article, I fell into the second category. The same may be true of some of the readers of this review, so let’s start with the Copyright Act of 1976.
Artists can transfer the physical manifestation of their creations as tangible property and their intangible copyright interest as intellectual property. With respect to the copyright interest, the Copyright Act gives the artist a termination right that attaches to all assignments except for those that the artist makes by will. (P. 779.) For a transfer of a copyright interest executed after January 1, 1978, artists have a non-waivable five-year termination period that begins 35 years after the transfer. During this period, the artist has the right to terminate the transfer of their copyright and reclaim the intellectual property as their own. (P. 778) These termination rights are inalienable, so an artist’s attempt to transfer the rights will be ineffective. (P. 782.) Termination rights work a bit differently for transfers executed before 1978, but those are not the focus of Professor Tritt’s article.
Professor Tritt explains that by providing termination rights, Congress sought to give artists a second opportunity to benefit from their works. Congress recognized that the entrepreneurs and art patrons interested in acquiring copyrights usually have a bargaining position superior to the artist. Because artists have no way of knowing how successful their work will become, they often license their copyright interest for minimal compensation. Recognizing that this power imbalance would regularly cause artists to negotiate contracts that would prove to be unfavorable to them, “Congress conceptualized a recapture system that permits the author, originally in a poor bargaining position, to renegotiate the terms of the grant once the value of the work has been tested.” (P. 776.)
Now for the messy intersection of copyright law and estates law. If an artist dies before the termination period begins, or once the period has opened but before the artist has exercised termination, the termination rights descend to heirs identified in the Copyright Act. Those heirs include spouses, children, and grandchildren, who generally take in the order and proportion dictated by traditional rules of descent. The artist may not give or bequeath termination rights to anyone outside the statutorily defined class of heirs and cannot divest the heirs of the termination rights that descend under the Act.
Because the artist cannot prevent termination rights from descending to heirs, and because termination rights attach to all transfers of copyright except those made in the artist’s will, federal copyright law creates what Professor Tritt dubs “estate-bumping” (P. 787). If an artist doesn’t survive long enough to exercise their termination rights, any lifetime assignment of the copyright can be “bumped” by the statutorily defined class of heirs. As Professor Tritt explains, “[T]ermination rights curtail donative freedom and have the potential to undermine otherwise well-crafted estate plans…. Although estate-bumping does not apply to transfers by Wills per se, estate-bumping could nevertheless undermine other contemporary estate planning techniques. Moreover, for charitably inclined copyright creators…termination rights undermine lifetime gifts of their copyrights to charities.” (P. 787.)
And what about the Godfather of Soul? At the beginning of the article, Professor Tritt hooks readers with the story of James Brown’s estate plan. Brown devised $2 million for the education of his grandchildren, but he wanted to use most of his estate to provide opportunities for poor children—the kind of opportunities that Brown’s own childhood lacked. To this end, Brown left his adult children only personal property and directed that the bulk of his estate would fund a charitable trust for underprivileged children in South Carolina and Georgia. (P. 765.) Despite what Professor Tritt describes as a “fastidious” estate plan, chaos ensued after Brown’s death. There was the possibility of a pretermitted child; the question of whether an on-again, off-again love interest was Brown’s surviving spouse; allegations that Browns’ personal funds had been misappropriated; and settlements that were overturned by the South Carolina Supreme Court as a “dismemberment” of James Brown’s estate plan. I’m skipping over much of the drama—if you want to learn more, you’ll need to read Professor Tritt’s article—but after “fourteen and a half years and tens of millions in legal fees,” all litigation was finally settled. (P. 769.)
But, as Professor Tritt explains, the saga of the James Brown estate isn’t over yet. During his lifetime, Brown signed contracts that transferred ownership of his copyrights (more than 900!) to music companies in exchange for fees. Those fees are central to funding the charitable trust that was at the heart of James Brown’s estate plan. But because of federal copyright law, the termination rights in these copyrights have descended to his adult children, as well as to the love interest if she actually was his legal spouse. The heirs can eventually exercise those termination rights to strike deals that will benefit them instead of the underprivileged children that Brown intended to help.
To illustrate the extent to which inherited termination rights can interfere with donative intent, Professor Tritt discusses estate planning techniques that include revocable trusts, lifetime transfers designed to minimize tax exposure, family holding companies, and charitable giving. Through carefully crafted examples, Professor Tritt illustrates how estate-bumping can effectively undo each of these common estate planning strategies.
Professor Tritt’s article makes a compelling case that Congress should amend federal copyright law so that inherited termination rights do not interfere with donative intent and testamentary freedom. His article also illustrates the wealth of knowledge necessary to be a good estate planner. If James Brown is the client—or Paul McCartney, or Ray Charles, or any of the other big-name artists Professor Tritt mentions—the value of the copyright interests should be apparent to any lawyer. But Congress gave artists termination rights because it is impossible to know how successful a work will become. This means that lawyers who draft estate plans for all the artists whose work has not yet gained an audience—and maybe never will—also need to think about copyright law and termination rights. Hopefully Professor Tritt has sparked a conversation that will culminate in legal reform that protects artists without compromising their donative freedom.
May 26, 2025 Allison Anna Tait
Masayuki Tamaruya,
Trust Law and Colonialism,
in The Oxford Handbook of Comparative Trust Laws (Adam S. Hofri-Winogradow et al. eds, forthcoming), available at
SSRN (Sept. 1, 2024).
Tethered to and inextricably linked with the absence or decline of democratic governance, there has always been empire. Empires rise and fall, as they say, but the imperial impulse is perennial and new iterations of old empires emerge with dismal regularity, showing us that imperial formations are hard to erase.
The relationship between empire and trust law is one that is gaining increased attention, particularly in the context of offshore financial centers and the inescapable historical force of British colonialism. Popular books like Butler to the World and, more recently, The Hidden Globe have brought the topic of colonialism into a wider conversation about wealth inequality and legal imperialism. Both historians and sociologists have dug into the subject, with excellent results like those of Vanessa Ogle and Brooke Harrington. And legal scholars are also joining the conversation, talking about colonial aftermaths and the ghosts of colonialism that persist in our systems of wealth transfer.
A new contribution to the literature—and our understanding—of trust law and colonialism is Masayuki Tamaruya’s chapter in the forthcoming Oxford Handbook of Comparative Trust Laws, aptly entitled Trust Law and Colonialism. Tamaruya takes the reader on a historical adventure through diverse empires and their spheres of influence. Tamaruya focuses in particular on the British empire, the Americas, and Asia explaining that “distinct patterns of colonialism naturally engender different dynamisms in using trust and trust laws.”
The Sun Never Sets on the British Empire
The development and fate of trust law varied across the British empire and was often tied to the fate of chancery courts that historically held jurisdiction over trusts. In Canada, for example, the “Chancery jurisdiction exercised by the colonial governor and later-established authorities was viewed with suspicion.” In what is presently Ontario, the Court of Chancery was not established until 1837, before which time trusts were enforced in a haphazard fashion, sometimes by the common law court and sometimes “with the intervention of the legislature.” New Zealand, on the other hand, had courts and a Supreme Court that was more willing to “adjust their equity jurisprudence” and—particularly after the Testator’s Family Maintenance Act of 1900—exercise judicial discretion to enforce both wills and trusts.
In India, a country with a longstanding legal tradition that included “trust-like devices” such as the Hindu benami and the Islamic waqf, trust law under the British empire built on these legal understandings, producing the Indian Trust Act of 1882. This Act, drawing from various sources, also relied on the New York Civil Code of 1865 and English treatises. Tamaruya remarks that even after the enactment of the Trust Act, however, “Indian judges routinely made recourse to English case law” up to and even after Indian independence
Traveling east and south-east, Singapore and Hong Kong were both jurisdictions that absorbed English common law and equity, as well as British statutes “largely intact,” and both developed trust legislation that was modelled after the U.K. Trustee Act of 1925, rendering their trust law “largely consistent with developments in the U.K.” More recently, both locales have “solidified their positions as Asian financial and wealth management centres” by offering boutique trust services and innovative wealth preservation services. In this sense, Singapore and Hong Kong resemble some of the offshore financial centers, which are either former or present British colonies such as the Cayman Islands and British Virgin Islands. Since colonization, English lawyers working with trust companies have drafted the trust codes of these jurisdictions just as they have trained the practitioners and judges in an attempt to attract global capital.
Traveling Through the Americas
Moving on to a discussion of the Americas, focused primarily on North America and in particular the United States, Tamaruya observes that “unlike the general alignment” seen in the British colonies, (both former and current), the history and state of trust law in the Americas is “marked by a departure from the English tradition.” In the United States, this departure from English law post-revolution was grounded in both a suspicion of chancery as it had been used in the English context as well as a conceptual rejection of aristocratic forms of property. Nevertheless, despite this desire to separate from English trust law, the industrialists of the late-nineteenth century still sought mechanisms to preserve and protect the extreme wealth that they created and in the United States the spendthrift trust prospered, as did the commercial trust.
Tamaruya remarks that, through the use of the commercial trust and related variants like the mortgage trust, “the US departure [from English trust law] has been influential worldwide.” In Latin American countries, the civil law tradition was strong and therefore trusts were not a core part of the legal history. But Latin American governments in the early twentieth century were interacting in international financial markets and “using corporate debentures and mortgage trusts” adopted from North American practice. The 1920s saw the adoption of trust law legislation in Panama (1925), Chile (1925), and Mexico (1926). Two decades later, jurisdictions in Central America, including Columbia, Honduras, and Costa Rica, adopted trust law legislation as did Venezuela and Brazil followed by South American jurisdictions, including Bolivia, Ecuador, Peru, Argentina, and Paraguay in the 1950s. In these jurisdictions, commercial trusts were predominant, while private family trusts were less commonly utilized.
Asian Empires and the Slow Growth of Trust Law
Asia represents, in Tamaruya’s organization, “the third sphere of colonialism” subject to both Western powers as well as Japanese colonial power. Surveying this third geography, Tamaruya first discusses Thailand and Japan, finding that trusts became available in Thailand in the mid-nineteenth century on “the basis of English practice” but that they were subsequently prohibited when the Civil and Commercial Code was introduced in 1935. It was not until 2008 that trusts were once again authorized, and only then for investment purposes.
In Japan, the adoption of trusts did not happen until the early 1900s, starting with mortgage trusts. A Trust Act in 1922 enabled more modern business purposes, drawing on both the Indian Trust Act and legislation from the United States. Taiwan and Korea, both subject to Japanese colonialism, followed Japanese law. Trusts companies opened their doors in these jurisdictions during the 1910s and 1920s and Japanese trust regulations applied in both colonies, facilitating primarily commercial trusts.
Finally, in China, the Civil Code in 1929-1931 “laid groundwork” for certain uses of trust law, in the Japanese tradition, but these laws were eliminated by the Communist Party when it came to power. After the Second World War, commercial trusts re-emerged and state-owned trust investment companies were put into place in order to generate funds for provincial governments. More recently, elite Chinese families with substantial business and personal wealth have started “onshoring” their family trusts rather than settling them in Hong Kong or Singapore but, as Tamaruya states, Chinese law provides little clear guidance for managing family inheritances through trust.
*****
In this enticing taste of colonial history and trust law, Tamaruya demonstrates that patterns of colonial conquest have shaped trust law and its adoption and usage across the globe and that “different conceptions and rules of trust have been devised in response to local and colonial conditions and shifting uses and circumstances.” Perhaps even more unexpectedly, Tamaruya also shows that that, “[c]ollectively, settlers, lawyers, judges, policymakers, bankers, and merchants on the colonial periphery may have been just as innovative as the judges of the English Court of Chancery.” Bringing these ebbs and flows of colonial power to light, this chapter is an important contribution to our understanding of trust law, its migrations, and its mobility.
Cite as: Allison Anna Tait,
Trust Law and the Tides of Colonialism, JOTWELL
(May 26, 2025) (reviewing Masayuki Tamaruya,
Trust Law and Colonialism,
in The Oxford Handbook of Comparative Trust Laws (Adam S. Hofri-Winogradow et al. eds, forthcoming), available at SSRN (Sept. 1, 2024)),
https://trustest.jotwell.com/trust-law-and-the-tides-of-colonialism/.
Apr 25, 2025 Michael Yu
Jonathan G. Blattmachr writes, “This Article primarily will deal with how the wealth transfer tax system might be used to provide reparations for descendants of people enslaved in the United States as part of the system of chattel slavery. It will not discuss other potential reparations such as for Native Americans among others.” (P. 297, dagger note.) The term “wealth transfer tax system” refers to the estate, gift, and generation-skipping transfer taxes imposed by Subtitle B of Title 26 of the United States Code. (P. 297, note 1.) Blattmachr’s specific proposal is that “a refundable estate tax credit (perhaps, up to a certain limit of wealth or using a scaled credit) could be allowed for the estates of descendants of enslaved persons.” (P. 309.) Blattmachr contributes to the literature of wealth transfer taxes, wealth inequality, racial wealth disparity, and reparations with his thoughtful proposal.
The core of Blattmachr’s proposal is the “refundable estate tax credit.” For any decedent dying in 2024, the estate tax credit currently stands at $5,389,800. (This jot focuses on the estate tax credit of $5,389,800 because Blattmachr’s article focuses on the estate tax credit—often, discussion centers on the estate tax exemption amount ($13,610,000 for a decedent dying in 2024), which is, generally, the amount that can be transferred estate tax-free to persons other than one’s spouse and other than to charities.) That relatively high estate tax credit is slated to sunset at the end of 2025 and revert to a lower estate tax credit unless Congress enacts new legislation. Before we discuss the mechanics and merits of a refundable estate tax credit, we should note that Blattmachr does not propose unequivocally that $5,389,800 be refunded to each estate of descendants of enslaved persons. Instead, Blattmachr explains that the amount of the refundable credit could be limited or scaled. (P. 309.)
Summarizing the wealth transfer tax regime is beyond the scope of this jot, but a brief overview may be useful for readers unfamiliar with this system. Three related taxes apply to the voluntary, gratuitous transfer of property/wealth: the estate, gift, and generation-skipping transfer taxes. The basic idea is that a tax is imposed upon voluntary, gratuitous transfers of property other than to a spouse or charity (“taxable transfers”)—whether the transfer occurs when the transferor is alive or upon the transferor’s death. This integrated approach to taxing lifetime gifts and deathtime transfers from a decedent’s estate led to terms such as the unified gift and estate taxes and the unified credit against the gift and estate taxes.
For example, let’s assume that a decedent died in 2024 having made lifetime and deathtime taxable transfers of $13,610,000. Such an estate would yield an initial gross estate tax computation of $5,389,800. However, after applying the estate tax credit of $5,389,800, there would be no estate tax owed on the decedent’s lifetime and deathtime taxable transfers of $13,610,000. Estate taxes would become due only if a 2024 decedent had made lifetime and deathtime taxable transfers greater than $13,610,000. As Blattmachr writes, “only the wealthiest of Americans and their estates pay estate or related taxes.” (P. 300.)
Blattmachr’s thought-provoking proposal is a refundable estate tax credit. Let’s assume that the United States has enacted his proposal but has limited and scaled the refundable estate tax credit to $2,000,000 for descendants of people enslaved in the United States. Let’s also assume that a decedent has an initial estate tax calculated to be $500,000. Applying the refundable estate tax credit of $2,000,000 means that the decedent’s estate would receive $1,500,000 (which is the refundable estate tax credit of $2,000,000 minus the initial estate tax calculation of $500,000). Of course, if a different decedent’s initial estate tax is calculated to be $2,800,000, applying the refundable estate tax credit of $2,000,000 means that this other decedent’s estate must still pay an estate tax of $800,000.
How would the federal government pay for such a refundable estate tax credit? Blattmachr writes, “Arguably, the wealth transfer taxes are the appropriate source for funding reparations because those taxes are to be paid by those who have most greatly benefitted from America’s economy which benefitted, in part, from labor of enslaved people.” (P. 306.) Along the way, Blattmachr discusses some pros and cons of other ways to raise revenue for reparations, including increasing taxes on the transfer of wealth, earmarking wealth transfer taxes to pay for reparations, a special tax for reparations, and reducing wealth transfer taxes on descendants of enslaved people. (Pp. 306-309.)
Blattmachr suggests the following advantages and arguments supporting a refundable estate tax credit. First, because the estate tax credit applies only when an individual dies, “the ‘payment’ of these reparations” is postponed until eligible individuals die, thereby possibly reducing the present value cost of the reparations. (P. 309.) Second, the estate tax credit “might avoid publicly identifying the individual[s] who benefit from the refundable credit.” (P. 309.) Third, although the delayed payment of reparations would postpone their impact, “it is at least arguable that paying the reparations over time would increase the probability of their closing the wealth gap between Black Americans and others.” (P. 310.) Fourth, Blattmachr writes, “A rational case can be made that providing reparations . . . would help close the racial gap between those descendants and other Americans.” (P. 311.) Fifth, payment of reparations “seems likely to boost the United States economy for all.” (P. 311.) Finally, sixth, a refundable estate tax credit, because it is paid over time as opposed to all at one specific date, “might increase the political likelihood of reparations being paid.” (P. 311.)
Blattmachr’s proposed refundable estate tax credit is interesting. It might accomplish (or help to accomplish) many goals, including addressing past wrongs, reducing current racial wealth gaps, and boosting the economy. I learned much from Blattmachr’s article and will continue to reflect on his proposal.
Mar 28, 2025 Katheleen Guzman
James Toomey,
Executor Discretion, 110
Iowa L. Rev. __ (forthcoming, 2025), available at
SSRN.
I hereby grant my executor the power to alter my will to reflect my most likely recent intent.
Notwithstanding the mysteries that can attend multiple aspects of estate planning, some things—such as the precepts that deeds are not wills, revocation is permitted, and takers must survive—seem plain. The near-absolute supremacy of Testator Intent fits within this rough set of axioms. Cases instruct that, elusive though it may be, it is that intent alone that matters, and not that of any judge, jury, or creditor; disappointed spouse or disinherited heir. Indeed, the principle has become the rhetorical stuff of earth and sky both, with the Testator’s intent cast as the cornerstone, the lodestar, the keystone, the polestar, the crown jewel, the very light that guides. Less often questioned is just how far and brightly that North Star actually shines, and at what temporal and comparative remove.
Professor James Toomey seeks consistency and tests fidelity to Testator Intent in Executor Discretion, admonishing that lawmakers should be every bit as aggrieved by the effectuation of will terms that reflect expired intent as reformers have been, for decades, about the rejection of intended wills on formalistic technicalities. “Whenever a will is probated [that . . .] no longer represents what the testator would have wanted, wills law fails on its own terms.” (P. 1.) If and where so, the autonomy, identity, and freedom that testamentary intent captures also fail, and stars fall to earth.
Preliminary confessions. Article titles can be as deceptive as book covers. Here, I first (and wrongly) assumed that Executor Discretion would catalogue existing but rarely flagged de jure or facto administrative space where it already operated—e.g. deciding between distribution in cash or in kind, through power of sale—then urge extension, retrenchment, or justification. That seemed intriguing, especially could such hidden discretion prove powerful enough to undermine or uphold wholistic views of the estate plan’s intent, including work at gray margins to remediate the ill-effects of planning neglect. But Executor Discretion is much more direct. It attacks the stale will by affording executors rights to react to expired intent by adding to, subtracting from, or altering the will itself, post-death, where the will itself so authorized. When I realized this far greater project, I instinctually blanched. This version of “executor discretion” seemed oxymoronic, a sense aided, perhaps, by the traditional role reinforcement found in the very language of wills. On its face, a “Last Will and Testament” already reflects the recency, primacy, and intent of its author—the testator—relegating executors to supporting roles as discretion-less functionaries merely “executing” the hope/wish/intent—the will—of another. Further reading forced deeper thought.
Prof. Toomey carefully grounds expired intent failures within theory and practice, including what he sees as their inexorable exacerbation given such sociocultural changes as heightened volatility in property values and the cognitive debilities (thus reduced capacity to amend) posed by increased life expectancies. This discussion is insightful, as are his observations about the inadequacy of alternate planning techniques or presumptions about revisions of intent stemming from discrete changes of circumstance. His work reminds readers that even fixes that work “most of the time” and with efficiency should pale against those that may appear startling but permit a sharper view of intent (assuming acceptable costs, but more on that later). Highlighting the near-sacrosanct nature of the intent core while taking seriously the difficulties of an approach directed by what this testator (not most of them) would have wanted could she have expressed it validates the piece. But Executor Discretion works even harder by encouraging a different and deeper question than how much discretion executors should hold. By replacing a call for potentially time-consuming, difficult, and costly objective reform—e.g. legislative safe harbors or an enhanced set of presumptions—with an explicitly subjective grant of discretion within the subject will itself, Prof. Toomey also forces readers to confront how much intent-driven freedom the law is actually willing to afford to those who write them.
“I hereby grant my executor the power to change my will to align with my most recent and likely intent; I love and trust my executor, and really, really mean it.” Readers might be torn over how to react, and that is exactly the point. Not all scholarship need yield incontrovertible answers to all questions or proffer unassailable cures. Reading that sort can feel like being shoved through a cow chute with no room for creative detour or wonder. There are many questions prompted (and many but not all answered) here, which is part of why the piece keeps singing in the ear.
But while it is always critical to foreground Testator Intent, it is also worth considering what it is set against and at what cost. Assuming the travesty or at least peril of expired intent: who is and should be its least cost avoider, and how; might directed trusts, careful decanting, or outright gifts coupled with hopes to the loved and trusted work as well or better; could this “cheap, fast and easy” intent-based proxy create more problems than it solves, more litigation than it avoids, more costs than it saves, a lengthier process for probate, just another technique for the undue who overstep. What effect could this hold for Parol Evidence, the Statute of Wills, the Statute of Frauds, the secret trust; would requiring periodic re-ups for or imposing a shelf life upon wills feasibly avoid or ameliorate matters, or at least, improve estate planning; could this sort of blanket clause absolve lawyers and clients from the hard work of doing better? Whether or not one agrees with its conclusion, that Executor Discretion evokes as well as answers, and inspires ongoing thought, is part of its power and its joy.
Discretion simultaneously suggests future action and traces back to intent, itself never unabridged. No matter how clearly expressed, testators cannot demand crimes or flout public policy. The spouses they exclude still may elect; the guardians they name are only suggestions; the personal representatives they select will fail if disqualifying facts emerge; the abuse of discretion they excuse is a nullity and the murder they excuse is, too. But one wonders what the law should allow testators to both want and accomplish in extension of self, and how far their power to extend discretion, post-death, should extend. This particular grasp—a grant of testamentary authority to the executor—may well exceed its reach. But agree with Prof. Toomey or not, the care with which he considers outcomes and constructs his case is undeniable. This suggests that outright rejection even to consider his proposal may rest more with basic distrust of human nature than with that which he has built. How much testamentary freedom is free? The conversation is worth having.
Cite as: Katheleen Guzman,
Discretioners, JOTWELL
(March 28, 2025) (reviewing James Toomey,
Executor Discretion, 110
Iowa L. Rev. __ (forthcoming, 2025), available at SSRN),
https://trustest.jotwell.com/discretioners/.
Feb 24, 2025 Victoria J. Haneman
Would you rather have government decisions made by artificial intelligence or by a presidential administration that you loath? The concept of the villainous AI overlord became part of the zeitgeist with the Terminator movie franchise, but the reality is that the greatest threat to the future of humanity may be itself. AI decision-making has demonstrated remarkable reliability and efficiency, often outperforming human decision-making in various domains. The ability of AI to quickly process immense amounts of data, identify patterns, and make decisions based on objective analysis minimizes the impact of biases and emotions that can cloud human judgement. As AI technology continues to progress, there is a growing possibility that AI may eventually displace humans in governing and decision-making positions. It is estimated that AI may soon replace 300 million jobs, or 9.1% of jobs worldwide. Jobs with a higher level of exposure to AI tend to be in higher paying fields, where education and critical reasoning skills are required. Prof. Lee-ford Tritt’s article, The Use of AI-Based Technologies in Arbitrating Trust Disputes, considers whether it is appropriate or feasible to supplant or support human decision-making with AI technology in the context of trust litigation.
This is less science fiction and more science fact, as China has already started to use AI-based courts to resolve legal disputes. The central question undergirding Prof. Tritt’s examination is the degree to which the experience of being human should control or guide dispute resolution. AI has several possible applications to arbitration, generally. It may assist arbitrators in the performance of their job, with tasks such as case management and fact gathering. AI may also assist with decision-making. One study demonstrated that artificial intelligence is able to predict the vote of individual Supreme Court justices with more than 70% accuracy, which far exceeds the reliability of human predictions. AI is less accurate with predictions involving factually similar cases, which may mean either that AI is less likely to identify legal nuances or that human factfinders are inconsistent in the application of the law. If the latter, we may find that AI decision-making is more equitable because of the precision with which the technology applies the law. We may also find that running our decisions through AI to ensure the fairness of the decision is a useful and supportive tool.
Professor Tritt’s article is the first to consider the role that AI may play in arbitration within a specific area of law. Trust disputes may be external (disputes between trustee and creditors) or internal (disputes between settlor, beneficiary, or trustee), with the latter arising far more frequently. Internal trust disputes involve either administration or management of the trust, or the validity of the trust itself. Trust administration issues may involve questions of fiduciary breach (care, loyalty, or impartiality) or actions to modify or reform the trust. The disputes often involve “pre-trial motions, a cascade of witnesses, and a mountain of documentary evidence,” as well as separately represented parties. As with any disputes involving family and money, emotions run high. Prof. Tritt notes that AI may not be ideally suited to resolving these types of claims.
The article stands out by focusing on the compatibility of AI-based arbitration in trust disputes, offering insights that could inform future developments in this area of law. By highlighting the potential challenges and opportunities of integrating AI into trust dispute resolution, the article makes a unique and valuable contribution to the broader discourse on AI in legal decision-making processes. But perhaps the most important contribution made by the article is to frame a nuanced discussion of supportive, substitutive, and disruptive use of AI. While the idea of AI governing society and assuming decision-making roles raises ethical concerns and challenges related to accountability and transparency, the potential benefits of leveraging AI merits careful consideration and exploration. Professor Tritt’s article is the start of an important conversation.
Jan 27, 2025 Solangel Maldonado
Fetal personhood statutes—laws that grant the same legal protections to embryos as to live children—have been the subject of significant discussion since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal constitutional right to abortion. The impact of these laws was magnified by the Alabama Supreme Court’s recent decision in LePage v. Ctr. for Reprod. Med., P.C., holding that frozen embryos are children for purposes of Alabama’s Wrongful Death of a Minor Act and must be treated the same as children born alive regardless of “developmental stage, physical location, or any other ancillary characteristics.” While the impact of fetal personhood statutes on abortion, contraception, and assisted reproduction may be rather obvious, their effects on trusts and estates law or tax law are more speculative. Yet, this is the focus of Bridget Crawford’s and her students’ (Alexis C. Borders and Katherine Keating) article, Unintended Consequences of Fetal Personhood Statutes: Examples from Tax, Trusts, and Estates, which demonstrates how fetal personhood laws have the potential to destabilize the transmission of property at death, specifically the rules governing intestacy, trust administration, trust duration, and the generation-skipping wealth transfer tax.
The article demonstrates how fetal personhood statutes might disrupt settled understandings of who may inherit under intestacy laws. It points out that if an embryo is treated as a person under the rules of intestacy, then it has the same rights to inherit from a parent and through a parent (from a grandparent, aunt or uncle, for example) as a living child. The article illustrates how such a right could present challenges when distributing an intestate decedent’s estate since it might require determining whether any surviving family members had pregnant partners when the decedent died. It explains:
[A]ssume that Helen, a widow, dies intestate survived by her adult daughter Jane and her adult son Joe. At the time of Helen’s death, Joe’s partner is pregnant with their first child. Just a few days after Helen dies, Joe himself is killed in a tragic accident. Helen’s intestate heirs are Jane and the zygote-embryo-fetus in gestation. Unless the personal representative inquires whether Joe’s partner was pregnant, the personal representative might erroneously believe that Jane is Helen’s sole surviving heir and distribute the entire estate to Jane. (P. 1178.)
The article further illustrates the potential inconsistency created by fetal personhood statutes that confer greater rights to an embryo than to a living child who was posthumously conceived through assisted reproduction. Most states do not recognize a posthumously-conceived child as the child of the deceased parent for purposes of intestacy based solely on a genetic connection but may instead require evidence that the decedent affirmatively consented to posthumous conception and to financial support of the child. In contrast, states have yet to address whether similar rules and restrictions would apply to embryos.
The article further illustrates the challenges that fetal personhood statutes may create for trust administration. It explains that if a trust requires payments to the grantor’s descendants, and embryos have the same rights to distributions as descendants born alive, the trustee may need to discover the existence of all of the embryos (including frozen embryos that have not been implanted) before making payments. The trustee might also need to figure out how to make distributions to an embryo without the benefit of instruments available to transfer property to a child, such as the Uniform Transfers to Minors Act, which envision payments to a child born alive.
The article also uncovers how fetal personhood statutes could extend well-settled time limits on the duration of a trust if a frozen embryo (which may remain frozen in perpetuity) is treated as a “life in being” for purposes of determining how long the trust can continue. Thus, fetal personhood statutes may facilitate the creation and maintenance of perpetual trusts and allow wealthy families to avoid paying taxes due when the trust terminates. The article illustrates how fetal personhood laws could also facilitate avoidance of the generation-skipping transfer tax.
After outlining the potentially far-reaching and unintended effects of fetal personhood laws, the article considers several reforms to limit their reach. While it suggests that legislators should amend their state’s fetal personhood statute to prevent the destabilization of well-established rules governing the transmission of property at death, it acknowledges that given political constraints, such action is unlikely. Consequently, the article turns to the courts and proposes rules of construction that judges should adopt to limit the effect of fetal personhood statutes on inheritance laws and trust administration. Specifically, it proposes that, unless a contrary intent is expressed in a will or trust, judges should conclusively presume that the testator or settlor/grantor did not intend for an embryo to be a beneficiary. The article further proposes that a frozen embryo not be treated as a measuring life for purposes of determining the time limit on the duration of the trust. Finally, the article addresses embryo adoption which, in my view, may increase if more states adopt fetal personhood laws and prohibit destruction of embryos, thereby forcing individuals with more embryos than they plan to implant to either freeze them indefinitely or donate them to individuals seeking to adopt and implant them. The article proposes that judges treat an embryo who is adopted before it develops into a living child as the child of the adoptive parents for purposes of the generation-skipping transfer tax.
Fetal personhood laws threaten the lives of pregnant persons and deny individuals seeking to grow their families access to assisted reproduction. Given these dire effects, readers may wonder why Crawford, a well-established feminist scholar, would choose to focus on the trust and estates consequences of these laws rather devote all of her energies to advocating for eradication of fetal personhood laws. The answer—pragmatism— is one that more scholars should adopt if they want their work to have an impact regardless of the political environment. Dobbs is unlikely to be overturned in the foreseeable future and fetal personhood laws are unlikely to be abolished. Therefore, as the article explains, “drawing attention to the unintended, far-reaching, and disruptive consequences of fetal personhood statutes is a pragmatic and parallel (if incrementalist) line of advocacy and scholarship advancing gender justice.” (P. 1184.)
I will be teaching trusts and estates for the first time in almost a decade and have been thinking about how to engage my students—the majority of whom are in their last semester of law school and are mainly taking the course for the bar exam. Students do not expect to discuss fetal personhood laws in a trusts and estates course, but I plan to use this article to illustrate how the laws they are discussing in courses on reproductive justice, family law, constitutional law, health law, and gender and the law, for example, also affect estates and trusts. I am confident students will be quite engaged that day.
Dec 9, 2024 David Horton
Adam J. Hirsch,
Beyond Privity of Blood: Intestacy and Charity, 76
UC L.J. __ (forthcoming, 2025), available at
SSRN (March 16, 2024).
Adam Hirsch’s new article, Beyond Privity of Blood: Intestacy and Clarity, argues that intestacy statutes should sometimes give a share of the decedent’s property to charity. To be honest, when I read his abstract, I found the idea far-fetched. But Professor Hirsch is one of the most-cited scholars in the field for a reason. By the time I’d finished scrolling through his draft, I’d seen the appeal of his creative thesis.
Calls for intestacy reform are common. Some authors have suggested that intestacy laws, which typically favor spouses and children, no longer reflect what most decedents want. Others have explored the idea of “personalizing” distributions based on factors such as the decedent’s gender, age, or lifestyle choices. Both proposals urge lawmakers to use empirical evidence to update the rudimentary assumptions that underlie intestacy regimes.
Professor Hirsch takes this debate in a surprising new direction. He starts with a great hook: if intestacy laws are supposed to carry out decedents’ preferences, and testators often leave money to charity, why don’t intestacy statutes follow suit? He then argues that policymakers should consider allocating a portion of the estate to a charity when a decedent fits one or more of the following descriptions: they were (1) wealthy, (2) had no kids, (3) donated to charities during life, or (4) left no known relatives.
Professor Hirsch supports these claims with findings from surveys of dispositive preferences. For example, tax data reveals that, at least in some years, testators worth at least $20,000,000 gave a staggering average of 49% of their property to charity. Likewise, the Health and Retirement Study, which polls 20,000 Americans, reported that nearly half of all respondents aged 55 or over who owned $1,276,500 or more and had no children made charitable bequests. In the same vein, researchers discovered that 50% of childless individuals who’d recently donated $500 or more to charities also named charities as beneficiaries in their wills. And finally, a 2018 Qualtrics study determined that a healthy plurality of people making over $100,000 per year would rather that charities inherited their assets than friends or distant kin. This data supports the counterintuitive conclusion that, for intestate decedents in Professor Hirsch’s four cohorts, allocating a share to charity would be majoritarian.
So how would the probate court select charities? Professor Hirsch’s ideas here are especially imaginative. He explains that people typically give to the same causes throughout their life. Thus, he proposes delegating the task of identifying which charities should be heirs to the administrator of the estate, who, after all, is already duty-bound to pore over the decedent’s finances.
Professor Hirsch also observes that there is precedent for permitting charities to be intestate heirs. He notes that twenty-eight American jurisdictions transmit escheated property to benevolent institutions. Some states even tailor these rules to specific decedents: for instance, Massachusetts provides that escheated property left by certain servicemembers flow to state-operated veterans’ homes. Accordingly, his proposal would be less of a departure than it first seems.
Finally, Professor Hirsch observes that states once excluded nonmarital children, “half-blooded” siblings, and even widows. Thus, as he puts it, “[c]haritable heirs could be only the beginning.”
Editor’s note: Reviewers choose what to review without input from Section Editors. Jotwell Trusts & Estates Section Editor Adam Hirsch had no role in the editing of this article.
Cite as: David Horton,
Charities as Heirs, JOTWELL
(December 9, 2024) (reviewing Adam J. Hirsch,
Beyond Privity of Blood: Intestacy and Charity, 76
UC L.J. __ (forthcoming, 2025), available at SSRN (March 16, 2024)),
https://trustest.jotwell.com/charities-as-heirs/.
