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 For Tamara, my partner and heir apparent.
I will be forever grateful that you agreed to integrate our household
production functions and to sponsor joint franchisees.
—RHS
 SUMMARY OF CONTENTS
Contents
List of Illustrations
Preface
Acknowledgments

Chapter 1 INTRODUCTION: FREEDOM OF DISPOSITION

Chapter 2 INTESTACY: AN ESTATE PLAN BY DEFAULT
Chapter 3 WILLS: FORMALITIES AND FORMS
Chapter 4 WILLS: CAPACITY AND CONTESTS
Chapter 5 WILLS: CONSTRUCTION
Chapter 6 TRUSTS: CHARACTERISTICS AND CREATION
Chapter 7 NONPROBATE TRANSFERS AND PLANNING FOR
INCAPACITY
Chapter 8 LIMITS ON FREEDOM OF DISPOSITION:
PROTECTION OF THE SPOUSE AND CHILDREN
Chapter 9 TRUSTS: FIDUCIARY ADMINISTRATION
Chapter 10 TRUSTS: ALIENATION AND MODIFICATION
Chapter 11 TRUSTS: CHARITABLE PURPOSES, CY PRES, AND
SUPERVISION
Chapter 12 TRUSTS: POWERS OF APPOINTMENT
Chapter 13 TRUSTS: CONSTRUCTION AND FUTURE INTERESTS
Chapter 14 THE RULE AGAINST PERPETUITIES AND TRUST
DURATION
Chapter 15 WEALTH TRANSFER TAXATION

Table of Cases
Author Index
Index
 CONTENTS
List of Illustrations
Preface
Acknowledgments

Chapter 1 INTRODUCTION: FREEDOM OF DISPOSITION

A. The Power to Transmit Property at Death
Lawrence M. Friedman, Dead Hands: A Social History
of Wills, Trusts, and Inheritance Law
1. Freedom of Disposition and the Dead Hand
Shapira v. Union National Bank
2. Justifying Freedom of Disposition
a. The Donor’s Prerogative
Adam J. Hirsch & William K.S. Wang, A
Qualitative Theory of the Dead Hand
Daniel B. Kelly, Restricting Testamentary
Freedom: Ex Ante Versus Ex Post
Justifications
b. Concentrations of Wealth
Wojciech Kopczuk, What Do We Know About
the Evolution of Top Wealth Shares in the
United States?
Edward N. Wolff & Maury Gittleman,
Inheritances and the Distribution of Wealth or
Whatever Happened to the Great Inheritance
Boom?
c. Human and Cultural Capital
Stephen J. McNamee & Robert K. Miller, Jr.,
The Meritocracy Myth
 d. A Question of Tax Policy?
3. From Feudalism to a Constitutional Right
4. Posthumously Created Property Rights
Shaw Family Archives Ltd. v. CMG Worldwide, Inc.
B. The Mechanics of Succession
1. Probate and Nonprobate Property
2. Probate Terminology
3. Probate Administration
a. Opening Probate and Choice of Law
b. Common Form and Solemn Form Probate
c. Formal and Informal Probate
d. Supervised and Unsupervised Administration
e. Barring Creditors
f. Closing the Estate
4. Can Probate Be Avoided?
C. Professional Responsibility
1. Duties to Intended Beneficiaries
Simpson v. Calivas
2. Joint Representation
A. v. B.

Chapter 2 INTESTACY: AN ESTATE PLAN BY DEFAULT

A. An Estate Plan by Default
1. Why Do So Many People Die Intestate?
2. The Purpose of Intestacy Statutes
3. Heirship and the Expectancy of an Heir Apparent
4. Applicable Law and the Uniform Probate Code
Uniform Probate Code §§ 2-101, 2-102, 2-103, 2-
105
B. The Structure of Intestate Succession
1. Surviving Spouse
a. The Spouse’s Share
b. Unmarried Cohabiting Partners
c. The Problem of Simultaneous Death
2. Descendants
 a. Representation
b. Representation in Wills and Trusts
3. Ancestors, Collaterals, and Others
a. Parents
b. Other Ancestors and Collaterals
c. Laughing Heirs
d. Stepchildren and In-Laws
e. Half-Bloods
f. Escheat
4. Disinheritance by Negative Will
C. Transfers to Children
1. Adopted Children
a. Formal Adoption
Hall v. Vallandingham
b. Adult Adoption
c. Adoption and Wills and Trusts
Minary v. Citizens Fidelity Bank & Trust Co.
d. Equitable Adoption
O’Neal v. Wilkes
2. Posthumous Children
3. Nonmarital Children
4. Reproductive Technology and New Forms of
Parentage
a. Posthumously Conceived Children
Woodward v. Commissioner of Social Security
b. Posthumously Conceived Children and Wills and
Trusts
c. Surrogacy and Opposite-Sex Married Couples
d. Assisted Reproduction and Same-Sex Couples
e. The 2008 Amendments to the UPC
5. Advancements and Hotchpot
a. Advancements at Common Law
b. Hotchpot
c. Advancements in Modern Law
Uniform Probate Code § 2-109
6. Guardianship and Conservatorship of Minors
a. Guardian of the Person
 b. Property Management Options
D. Bars to Succession
1. The Slayer Rule
In re Estate of Mahoney
The Unworthy Heir
2. Disclaimer
a. From Common Law to Statutory Law
b. Avoiding Taxes
c. Avoiding Creditors
d. Disclaimers to Qualify for Medicaid

Chapter 3 WILLS: FORMALITIES AND FORMS

A. Execution of Wills
1. Attested Wills
a. The Core Formalities
Uniform Probate Code § 2-502
b. The Functions of Formalities
John H. Langbein, Substantial Compliance
with the Wills Act
c. The Strict Compliance Rule
Stevens v. Casdorph
The Meaning of “Presence”
The “Signature” Requirement
d. Interested Witnesses and Purging Statutes
(1) From Disqualification to Purging
(2) The Trend Away from Purging
e. Model Execution Ceremony
The Self-Proving Affidavit
Safeguarding a Will
f. Ad Hoc Relief from Strict Compliance
In re Pavlinko’s Estate
In re Snide
g. The Substantial Compliance Doctrine
The Unfulfilled Promise of Substantial
Compliance
 From Substantial Compliance to Harmless
Error: Australia’s National Experiment
h. The Harmless Error Rule
Uniform Probate Code § 2-503
In re Estate of Hall
In re Probate of Will and Codicil of Macool
Writings, Documents, and Electronic or
Digital Wills
In re Estate of Javier Castro
2. Notarized Wills
Lawrence W. Waggoner, The UPC Authorizes
Notarized Wills
3. Holographic Wills
a. Discerning Testamentary Intent
Ashbel G. Gulliver & Catherine J. Tilson,
Classification of Gratuitous Transfers
In re Kimmel’s Estate
b. Preprinted Will Forms
In re Estate of Gonzalez
c. Signature and Handwriting
(1) Signature
(2) The Extent of the Testator’s Handwriting
d. Extrinsic Evidence
In re Estate of Kuralt
B. Revocation of Wills
1. Revocation by Writing or by Physical Act
Uniform Probate Code § 2-507
a. Express and Implied Revocatory Writings
b. Formality in Revocation by Writing or Physical
Act
Thompson v. Royall
c. Presumption of Physical Act Revocation
Harrison v. Bird
Lost Wills and the Presumption of Revocation
d. Harmless Error in Revocation
In re Estate of Stoker
e. Partial Revocation by Physical Act
 2. Dependent Relative Revocation
LaCroix v. Senecal
Restatement (Third) of Property: Wills and Other
Donative Transfers § 4.3
3. Revival of Revoked Wills
Uniform Probate Code § 2-509
4. Revocation by Operation of Law
a. Divorce
Uniform Probate Code § 2-804
b. Marriage
c. Birth of Children
C. Components of a Will
1. Integration
In re Estate of Rigsby
2. Republication by Codicil
3. Incorporation by Reference
a. Existing Writings
Uniform Probate Code § 2-510
Clark v. Greenhalge
b. Subsequent Writings and Tangible Personal
Property
Uniform Probate Code § 2-513
4. Acts of Independent Significance
Uniform Probate Code § 2-512
D. Contracts Relating to Wills
1. Contracts to Make a Will
Uniform Probate Code § 2-514
2. Contracts Not to Revoke a Will
Keith v. Lulofs

Chapter 4 WILLS: CAPACITY AND CONTESTS

A. Capacity to Make a Will
1. Mental Capacity
In re Wright’s Estate
Wilson v. Lane
2. Insane Delusion
 In re Strittmater’s Estate
Breeden v. Stone
B. Undue Influence
1. What Is Undue Influence?
2. Undue Influence in the Cases
In re Estate of Sharis
Presumptions and Burden Shifting in Undue
Influence Cases
In re Will of Moses
Lipper v. Weslow
Bequests to Lawyers and Fiduciary Appointments
3. Planning for and Avoiding a Will Contest
a. Warning Signs
b. Strategies
C. Duress
Latham v. Father Divine
Interference with Inheritance, Restitution and Unjust
Enrichment, and Constructive Trust
D. Fraud
E. Tortious Interference with an Expectancy
Schilling v. Herrera

Chapter 5 WILLS: CONSTRUCTION

A. Mistaken or Ambiguous Language in Wills
1. Plain Meaning and No Reformation
Mahoney v. Grainger
In re Estate of Cole
2. Ad Hoc Relief for Mistaken Terms
Arnheiter v. Arnheiter
In re Gibbs’ Estate
3. Openly Reforming Wills for Mistake
Uniform Probate Code § 2-805
In re Estate of Duke
B. Death of Beneficiary Before Death of Testator
1. Lapsed and Void Devises
 In re Estate of Russell
2. Antilapse Statutes
Uniform Probate Code § 2-605
a. Presumed Intent
b. Scope
c. Default Rules
d. Words of Survivorship
Ruotolo v. Tietjen
3. Class Gifts
a. What Is a Class?
Restatement (Third) of Property: Wills and
Other Donative Transfers §§ 13.1, 13.2
Dawson v. Yucus
b. Application of Antilapse Statutes to Class Gifts
4. Summary Diagram
C. Changes in Property After Execution of Will
1. Ademption by Extinction
In re Estate of Anton
Uniform Probate Code § 2-606
2. Stock Splits and the Problem of Increase
3. Satisfaction of General Pecuniary Bequests
4. Exoneration of Liens
5. Abatement

Chapter 6 TRUSTS: CHARACTERISTICS AND CREATION

A. The Trust in American Law
1. Origins of the Trust
2. Sources of Law
Max M. Schanzenbach & Robert H. Sitkoff, The
Prudent Investor Rule and Trust Asset Allocation:
An Empirical Analysis
3. Vocabulary, Typology, and Illustrative Uses
4. Bifurcation of Ownership
5. A Trust Compared with a Legal Life Estate
a. Legal Life Estate
b. Equitable Life Estate—A Trust
 6. Business Trusts
7. Foreign Trust Law
B. Creation of a Trust
1. Intent to Create a Trust
a. Testamentary Trust
b. Deed of Trust
Jimenez v. Lee
c. Declaration of Trust
Hebrew University Ass’n v. Nye (1961)
Hebrew University Ass’n v. Nye (1966)
2. Trust Property
Unthank v. Rippstein
3. Ascertainable Beneficiaries
a. The Beneficiary Principle
Clark v. Campbell
b. Pet and Other Noncharitable Purpose Trusts
In re Searight’s Estate
4. A Written Instrument?
a. Oral Inter Vivos Trusts of Personal Property
Uniform Trust Code § 407
In re Estate of Fournier
b. Secret Testamentary Trusts and the Wills Act
Olliffe v. Wells
c. Oral Inter Vivos Trusts of Land and the Statute of
Frauds

Chapter 7 NONPROBATE TRANSFERS AND PLANNING FOR

INCAPACITY
A. The Rise of Nonprobate Succession
John H. Langbein, Major Reforms of the Property
Restatement and the Uniform Probate Code:
Reformation, Harmless Error, and Nonprobate Transfers
B. Revocable Trusts
1. The Wills Act and a Present Transfer
2. Abandoning the Present Transfer Fiction
Uniform Trust Code § 603
 Fulp v. Gilliland
3. Revoking or Amending a Revocable Trust
Uniform Trust Code § 602
Patterson v. Patterson
4. The Subsidiary Law of Wills
State Street Bank and Trust Co. v. Reiser
Clymer v. Mayo
5. Revocable Trusts in Contemporary Practice
a. The Pour-Over Will
b. Statutory Validation of a Pour Over into an
Unfunded Revocable Trust
c. Deathtime Considerations
d. Lifetime Considerations
C. The Other Will Substitutes
1. Life Insurance
Cook v. Equitable Life Assurance Society
2. Pension and Retirement Plans
a. The Growth in Pension and Retirement Plans
John H. Langbein, The Twentieth-Century
Revolution in Family Wealth Transmission
b. Types of Pension and Retirement Plans
c. Succession Issues for Pension and Retirement
Accounts
Nunnenman v. Estate of Grubbs
Egelhoff v. Egelhoff
3. Pay-on-Death and Transfer-on-Death Contracts
Uniform Probate Code § 6-101
Multiple-Party Bank and Brokerage Accounts
Varela v. Bernachea
4. Nonprobate Transfer of Real Property
D. Planning for Incapacity
1. Property Management
a. Conservatorship
b. Revocable Trust
c. Durable Power of Attorney
In re Estate of Kurrelmeyer
2. Health Care
 a. Default Law
b. Advance Directives
c. Physician Aid in Dying
3. Disposition of the Body
a. Post-Mortem Remains
b. Organ Donation

Chapter 8 LIMITS ON FREEDOM OF DISPOSITION:

PROTECTION OF THE SPOUSE AND CHILDREN
A. Protection of the Surviving Spouse
1. The Elective Share of a Separate Property Surviving
Spouse
a. Economic Partnership or Support Obligation?
Uniform Probate Code Article II, Part 2,
General Comment
b. Unmarried Cohabiting Partners
c. Variation Across the States
d. Nonprobate Property
(1) Judicial Responses
Sullivan v. Burkin
(2) Statutory Reform
In re Estate of Myers
e. The Uniform Probate Code
f. Waiver by Premarital or Postnuptial Agreement
Uniform Premarital and Marital Agreement
Act § 9
Reece v. Elliott
2. Community Property
a. The Spread of the Community Property System
b. Management and Disposition of Community
Property
3. Migrating Couples and Multistate Property Holdings
a. Moving from Separate Property to Community
Property
b. Moving from Community Property to Separate
Property
 4. Miscellaneous Additional Rights
a. Social Security
b. Pension and Retirement Accounts
c. Homestead
d. Personal Property Set-Aside
e. Family Allowance
f. Dower and Curtesy
B. Intentional Omission of a Child
1. American Law
2. The Family Maintenance System of the
Commonwealth
Lambeff v. Farmers Co-operative Executors &
Trustees Ltd.
C. Protection Against Unintentional Omission
1. Spouse Omitted from Premarital Will
Uniform Probate Code § 2-301
In re Estate of Prestie
2. Unintentional Disinheritance of a Child
Uniform Probate Code § 2-302
Gray v. Gray
In re Estate of Jackson

Chapter 9 TRUSTS: FIDUCIARY ADMINISTRATION

A. From Limited Powers to Fiduciary Administration
1. From Conveyance to Management
John H. Langbein, Rise of the Management Trust
2. Trustees’ Powers
3. Fiduciary Governance
Robert H. Sitkoff, Trust Law as Fiduciary
Governance Plus Asset Partitioning
B. The Duty of Loyalty
Hartman v. Hartle
In re Gleeson’s Will
In re Rothko
C. The Duty of Prudence
1. The Distribution Function
a. Discretionary Distributions
Marsman v. Nasca
b. Sole, Absolute, or Uncontrolled Discretion
c. Exculpation Clauses
d. Mandatory Arbitration
2. The Investment Function
a. From Legal Lists to the Prudent Investor Rule
Uniform Prudent Investor Act §§ 1, 2, 3, 4
Max M. Schanzenbach & Robert H. Sitkoff,
The Prudent Investor Rule and Market Risk:
An Empirical Analysis
b. Recurring Problems in Applying the Prudent
Investor Rule
(1) The Duty to Diversify and Inception Assets
In re Estate of Janes
Compensatory Damages for
Imprudent Investment
(2) The Terms of the Trust
Wood v. U.S. Bank, N.A.
3. The Custodial and Administrative Functions
a. Duty to Collect and Protect Trust Property
b. Duty to Earmark Trust Property
c. Duty Not to Mingle Trust Funds with the
Trustee’s Own
d. Duty to Keep Adequate Records of
Administration
e. Duty to Bring and Defend Claims
4. Trustee Selection and Divided Trusteeship
a. Choosing a Trustee
b. Delegation by a Trustee
Uniform Trust Code § 807
c. Division by a Settlor
(1) Co-Trustees
(2) Power of Appointment
(3) Directed Trusts
d. Private Trust Company
 D. The Duty of Impartiality
1. Due Regard and the Terms of the Trust
2. The Principal and Income Problem
In re Heller
E. The Duty to Inform and Account
Uniform Trust Code § 813
1. Responding to a Request for Information
Uniform Trust Code § 105
Wilson v. Wilson
2. Affirmative Disclosure
Allard v. Pacific National Bank
3. Accountings and Repose
a. Judicial Accountings
National Academy of Sciences v. Cambridge
Trust Co.
b. Informal Accountings and Release

Chapter 10 TRUSTS: ALIENATION AND MODIFICATION

A. Alienation of the Beneficial Interest
1. Discretionary Trusts
a. Pure Discretionary Trust
b. Support Trust
c. Discretionary Support Trust
d. Collapsing the Categories
Uniform Trust Code § 504
e. Protective Trusts
2. Spendthrift Trusts
Uniform Trust Code §§ 502, 503
Scheffel v. Krueger
3. Self-Settled Asset Protection Trusts
Federal Trade Commission v. Affordable Media,
LLC
4. Trusts for the State Supported
a. Self-Settled Trusts
b. Trusts Created by Third Parties
B. Modification and Termination
 1. Consent of the Beneficiaries
a. English Law
b. The Claflin Doctrine
In re Estate of Brown
c. The UTC and the Restatement (Third) of Trusts
Uniform Trust Code § 411
2. Deviation and Changed Circumstances
a. Traditional Law
b. Extension to Dispositive Provisions
Uniform Trust Code § 412
In re Riddell
c. Tax Objectives
3. Trust Decanting
Harrell v. Badger
C. Trustee Removal
Uniform Trust Code § 706
Davis v. U.S. Bank National Association

Chapter 11 TRUSTS: CHARITABLE PURPOSES, CY PRES, AND

SUPERVISION
A. Charitable Purposes
Shenandoah Valley National Bank v. Taylor
B. Cy Pres and Deviation
1. Cy Pres
a. Illegal, Impossible, or Impracticable
In re Neher’s Will
b. Wasteful
San Francisco Chronicle: The Buck Trust
2. Deviation
Philadelphia Story: The Barnes Foundation
3. Discriminatory Trusts
C. Enforcement of Charitable Trusts
1. Traditional Law
2. Settlor Standing
Smithers v. St. Luke’s-Roosevelt Hospital Center
 3. Local Politics
The Sweetest Place on Earth: Hershey’s Kiss-Off
4. Persons with a Special Interest in the Trust
5. Federal Supervision
Hawaii Journal: The Bishop Estate

Chapter 12 TRUSTS: POWERS OF APPOINTMENT

A. Purposes, Terminology, and Types of Powers
1. Terminology and Relationships
a. The Parties
b. Creation
c. General and Nongeneral Powers
d. Time and Manner of Exercise
e. Ownership Equivalence
f. A Fiduciary Power of Appointment?
2. Tax Considerations
a. General and Nongeneral Powers
b. Flexibility Without Estate Tax Liability
3. Creditor Rights
Irwin Union Bank & Trust Co. v. Long
B. Exercise of a Power of Appointment
1. Manifestation of Intent
Beals v. State Street Bank & Trust Co.
2. Formal Requirements Imposed by the Donor
a. The Nature of the Instrument
b. Specific Reference Requirement
Uniform Probate Code § 2-704
3. Permissible Exercise of the Power
a. Appointment to an Object
Timmons v. Ingrahm
b. Appointment in Further Trust
Brown v. Miller
c. Creation of a New Power of Appointment
d. Exclusive and Nonexclusive Powers
e. Salvage Doctrines: Allocation and Capture
(1) Allocation
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