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UNDERSTANDING
TRUSTS AND ESTATES
THIRD EDITION
By

Roger W. Andersen
Professor of Law
University of Toledo
College of Law
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This publication is designed to provide accurate and authoritative information in regard to the subject
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(Pub.00728)
Chapter 1, Lawyers, Estates, and Trusts, is reproduced
from Understanding Trusts and Estates, Third Edition,
by Roger W. Andersen, Professor of Law, University of
Toledo College of Law. Copyright © 2003 Matthew
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Chapter 1
LAWYERS, ESTATES, AND TRUSTS

§ 1 Serving the Living

You may be pleasantly surprised to learn that Trusts and Estates is not
about dead people. Rather, it is the study of ways to help living people solve
real family problems. If your clients have aging parents, if they have just
lost a spouse, if they have young children, if they seek to save taxes, if they
are anticipating their own retirement and possible disability, you can help.
You will have the opportunity to offer them a wide variety of ideas, tools
you can use together to craft a solution.
Such a task is both interesting and challenging: interesting because of
the interplay between intellectual ideas and individual personalities;
challenging because of the required attention to detail and the number of
choices faced.
Recognizing that lawyer conduct affects the living, courts have broken
down traditional defenses and held lawyers responsible to will beneficiaries
who were not their clients. In Ogle v. Fuiten, 1 for example, two nephews
brought an action for malpractice and breach of contract against the law
partner of their aunt and uncle’s then-deceased lawyer. 2
The nephews claimed that the aunt and uncle had wanted the property
to go to whichever of them survived the other by 30 days; otherwise the
nephews were to get the property. Because of a drafting error, the nephews
did not get the property, even though the aunt did not survive the uncle
by 30 days.
The lawyer’s mistake was easy to make: he left a gap in coverage when
he combined two different kinds of clauses in the wills. First, in each spouse’s
will he made the gift to the other spouse contingent on survival by 30 days.
Then, he provided that if both spouses were killed in a “common disaster”
the nephews would take. 3
As luck would have it, neither event occurred. The uncle died of a stroke,
and 15 days later the aunt died of cancer. Neither spouse survived long
enough to get the other’s property, but the nephews did not qualify to take
1
466 N.E.2d 224 (Ill. 1984).
2
The estate was also named as a defendant.
3 The common disaster clause is a particularly bad way to deal with survivorship problems.

See § 45[B][2][a], infra.

In this case, one wonders if the lawyer merely inserted the clause as standard “boilerplate,”
without discussing it with his clients. If so, the nephews might have had another ground for
recovery. See generally Roger W. Andersen, Informed Decision Making in an Office Practice,
28 B.C. L. Rev. 225 (1987).

1
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2 LAWYERS, ESTATES, AND TRUSTS CH. 1

it because there was no common disaster. 4 The lawyer had left a gap, and
the nephews lost out.
The court allowed the nephews’ claim, following a growing, but not
uniform, trend toward ignoring defenses based on lack of privity—“they
were not my clients”—and statutes of limitation—“the claim is too late
because it arose when the will was drafted, not at the later death.” 5 Courts
have recognized that unless lawyers’ duties are extended to will beneficia-
ries and unless statutes of limitation are applied from the time a mistake
is likely to be found, lawyers will escape liability for their mistakes. 6 After
all, by the time most will drafting errors are identified, the client is in no
position to complain.
Cases like Ogle are important because they remind us that we serve
people whose lives are affected by how carefully we practice our craft. As
you work your way through this text, keep in mind that the doctrine you
learn is not important in its own right, but because the use and abuse of
this doctrine can affect the lives of real people.

§ 2 An Overview of Intergenerational Wealth Transfer

This section introduces some terminology and basic concepts discussed
in later chapters. Its major purpose is to provide a “big picture,” so you will
know the context in which particular doctrines operate. After a discussion
of the probate system for transferring decedents’ property, we will examine
probate-avoidance devices, lifetime transfers that can serve as substitutes
for wills. The section closes with a word about the uniform statutes and
Restatements.
4 The estate went to other relatives under what is called an intestate statute, a topic covered

in the next chapter.

5 See Lucas v. Hamm, 364 P.2d 685 (Cal. 1961) (will beneficiaries have cause of action

against drafting attorney in both tort and contract); Auric v. Continental Casualty Co., 331
N.W.2d 325 (Wis. 1983) (will beneficiary allowed to maintain an action against attorney). But
see Miller v. Mooney, 725 N.E.2d 545 (Mass. 2000) (rejecting tort liability); Barcelo v. Elliott,
923 S.W.2d 575 (Tex. 1996) (lack of privity barred will beneficiary’s claim against drafting
attorney). See generally Martin D. Begleiter, Attorney Malpractice in Estate Planning—You’ve
Got to Know When to Hold Up, Know When to Fold Up, 38 U. Kan. L. Rev. 193 (1990); Bradley
E.S. Fogel, Attorney v. Client – Privity Malpractice, and the Lack of Respect for the Privacy
of the Attorney-Client Relationship in Estate Planning, 68 Tenn. L. Rev. 261 (2001). Helen
Bishop Jenkins, Privity—A Texas-Sized Barrier to Third Parties for Negligent Will Draft-
ing—An Assessment and Proposal, 42 Baylor L. Rev. 687 (1990); Mary Elizabeth Phelan,
Unleashing the Limits on Lawyers’ Liability? Mieras v. DeBona: Michigan Joins the Main-
stream . . . 72 U. Det. Mercy L. Rev. 327 (1995).
Some courts have abolished the privity defense in contexts not involving wills. See, e.g.,
Holsapple v. McGrath, 521 N.W.2d 711 (Iowa 1994) (allowing a claim by grantees of a faulty
deed).
The increased malpractice exposure serves as a spur to reform outmoded doctrines which
haunt this area of law. See Jesse Dukeminier, Cleansing the Stables of Property: A River Found
at Last, 65 Iowa L. Rev. 151 (1979).
6 Lawyers may also be liable for the mistakes of their employees. See John W. Wade, Tort

Liability of Paralegals and Lawyers Who Utilize Their Services, 24 Vand. L. Rev. 1133 (1971).
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[A] Probate

[1] The Process

Probate systems collect the assets of decedents, satisfy creditors, resolve
conflicts among beneficiaries, and distribute what is left to the appropriate
persons or institutions. 1 Procedural details vary from place to place, but
the basic concept of probate carries through differing approaches.
Only some property interests are “subject to probate.” Property that the
decedent held alone or as a tenant in common is subject to the system. On
the other hand, a number of sources of wealth do not pass through probate. 2
Joint tenancy (or tenancy by the entirety) property, life insurance proceeds
on the decedent’s life, and property in lifetime trusts are all outside of
probate. 3
Notice how little wealth may actually be subject to probate. A typical
married couple may hold virtually everything in joint tenancy—house, cars,
bank accounts, investments. There may be no probate assets until the
surviving spouse dies. If a wealthy family adopts a sophisticated plan, they
may have most of their property in trust—again, not subject to probate.
Despite the relatively narrow coverage, the probate system is fundamen-
tally important to the entire intergenerational wealth transfer process.
Much of the law governing wealth transfer developed in the context of
probate. Moreover, it is the ultimate “fail-safe” system. If no other theory
authorizes a shift of property from a decedent to another, the probate sys-
tem comes into play.
When a person dies and a decision is made to probate his estate,
someone—usually a family member—will petition a court 4 in the decedent’s
state of domicile to appoint a “personal representative” to handle the work. 5
If the decedent owned property in other states, a separate, “ancillary”
probate might have to be opened (and a personal representative appointed)
in each of those states. 6 Ancillary probate is designed to protect local
creditors and is particularly likely if the out-of-state asset is real property.
1 Technically, “probate” refers to the proving of a will and “administration” refers to the

process under which assets are collected and dispersed to successors, whether there is a will
or not. See McGovern & Kurtz at 467-68. In more common usage, however, “probate” has come
to mean the entire process, and the term is used in that sense here.
2 See generally § 2[B], infra.
3
Several states allow married couples to hold property as “community property,” which is
shared equally. At death, the decedent’s one-half of the community property may pass through
probate or may pass directly to the other spouse. See generally Robert L. Mennell and Thomas
M. Boykoff, Community Property in a Nutshell (2d ed. 1988). See also § 28[A], infra.
4 The court may be called a probate court, a surrogate’s court, or even an orphan’s court.
5
The personal representative owes fiduciary duties to the estate’s beneficiaries. See
generally Chapter 14, infra.
6 See generally McGovern & Kurtz at 973-77.
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The term “personal representative” is a generic term that covers any of

the various categories of people 7 named to handle an estate. If there is a
will, 8 the first choice for a personal representative would be the person
named in the will as “executor.” 9 If there is no will, the decedent has died
“intestate,” and a state statute 10 will direct how the property is to be
distributed 11 and provide a hierarchy 12 from which to choose an “adminis-
trator.” 13
States differ in the level of judicial supervision they require. Modern
probate procedures evolved from two approaches taken in English ecclesias-
tical courts. “Common form” probate was an ex parte process. After the
validity of the will was proved, the court would allow the executor to begin
administration without further court involvement. Anyone who objected
could petition for probate in “solemn form,” which involved notice to
interested parties and court supervision. Sensing trouble ahead, an execu-
tor might simply elect the solemn form from the start. While some states
permit a variant of common form probate, 14 most states’ courts supervise
the entire process. 15
In part as a response to complaints that there is too much supervision, 16
at too high a cost, 17 the Uniform Probate Code (UPC) takes a different
7 Trust companies and trust departments of commercial banks often serve in these various

capacities as well.
8 Anyone who wants to transfer probate property at death must make a valid will. People

who make wills are called “testators” and are said to die “testate.” See generally Chapter 3,
infra.
9
In the past, the term “executrix” has been used if the personal representative was female.
Since gender has no legal consequence in this context, “trix” endings are gradually making
their way out of our language. In this text, use of the “or” suffix makes no assumption about
the gender of the person involved.
10 If a decedent owns property in different jurisdictions, different statutes may apply to

identify who inherits. Personal property is governed by the law of the decedent’s domicile, and
real property is governed by the law of its location. See generally William M. Richman &
William L. Reynolds, Understanding Conflict of Laws §§ 66, 86 & 87 (2d ed. 1993).
11 See generally Chapter 2, infra.
12
Usually the surviving spouse is first on the list, followed by other relatives and, finally,
other qualified persons.
13 Other titles sometimes indicate special circumstances. If the named executor is out of

the country for a while, it might be necessary to appoint a “special administrator” to get things
started. If the will only names people who cannot serve, a court will appoint someone who
could be called an “administrator with will annexed,” to indicate that—despite the “administra-
tor” title—there is indeed a will.
14
E.g., N.C. Gen. Stat. § 31-12.
15
Many states allow small estates to pass without court administration, or with minimal
court involvement. See, e.g., Ind. Code Ann. § 29-1-8-1; Ohio Rev. Code Ann. § 2113.03. See
also UPC §§ 3-1201 to 3-1204. A few states allow an administration independent of judicial
supervision once the will has been proved and there has been an inventory, an appraisal, and
a list of claims established. See Tex. Prob. Code Ann. § 145.
16 See Richard V. Wellman, The Uniform Probate Code: A Possible Answer to Probate

Avoidance, 44 Ind. L.J. 191 (1969).

17 See, e.g., Norman F. Dacey, How to Avoid Probate (Rev. ed. 1990).
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§ 2 OVERVIEW OF INTERGENERATIONAL WEALTH TRANSFER 5

approach. Although the traditional approach of full supervision is avail-

able, 18 administration also may be largely unsupervised. The court can be
called upon as needed. An interested party who feels that a low appraisal
should be reviewed, for example, can obtain court supervision of that one
controversy without generating supervision of all other questions. 19
In addition, the UPC offers the choice of universal succession, which skips
administration entirely and gives title to the heirs 20 or residuary devi-
sees, 21 subject to the claims of creditors and any other devisees. 22
The discussion that follows assumes a court’s continuing supervision.
Upon appointment of the personal representative, the court issues
appropriately titled “letters” to evidence the individual’s authority. Armed
with official copies of letters and of death certificates, the personal represen-
tative can contact banks, stock transfer agents, and the like, to collect the
decedent’s assets. 23
An inventory is then filed.
While the personal representative is collecting assets, she also should be
notifying creditors. The traditional method of giving such notice (and
thereby starting fairly short statutes of limitation running against the as-
sertion of any claims) had been publication in a local newspaper. All that
changed in 1988 when the U.S. Supreme Court ruled, in Tulsa Professional
Collection Services, Inc. v. Pope, 24 that more was required.
In Pope, the executor (the widow) published appropriate notices in the
local paper, giving creditors two months to file their claims. The hospital
in which the decedent died did not file in time, so the local court denied
the claim. On appeal, the hospital argued that notice-by-publication was
insufficient under the due process clause. 25 The Supreme Court distin-
guished this situation from mere “self-executing” statutes of limitation not
subject to due process notice requirements, 26 because in the probate context
18
UPC § 3-501.
19
See UPC § 3-107 (comment).
20 The “heirs” are those who would take under the intestate statute if there were no will.
21 Historically, the term “devisee” meant someone who took real property by will. The UPC

expands that term to include anyone who takes real or personal property by will. UPC
§ 1-201(10), (11). The “residuary devisees” are those who would take under a will clause which
follows any gifts to individuals or groups and reads: “I give all the rest of my property to . . .”
22 See UPC §§ 3-312 to 3-322. See also Eugene Scoles, Succession Without Administration:

Past and Future, 48 Mo. L. Rev. 371 (1983).

23 For an example of a personal representative that failed to meet its obligation to exercise

due care in this context, see In re First Nat’l Bank of Mansfield, 307 N.E.2d 23 (Ohio 1974),
discussed in § 56[B], infra.
24 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988). See generally Sarajane Love, Estate

Creditors, The Constitution, and the Uniform Probate Code, 30 U. Rich. L. Rev. 411 (1996).
25 Pope also illustrates the folly of not being thoughtful (or at least wary) of others involved

in the probate process. Here, the executor and the hospital each knew of the death and pending
bill, yet neither bothered to contact the other in the context of settling the estate. Instead,
they spent substantial funds litigating.
26 See Texaco, Inc. v. Short, 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982).
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6 LAWYERS, ESTATES, AND TRUSTS CH. 1

there is significant state action throughout the process. Harkening back

to Mullane v. Central Hanover Bank & Trust Co., 27 the Court held that
due process requires actual notice (like mail) to known or reasonably
ascertainable creditors before their claims can be cut off.
Once the assets are assembled and the creditors have been contacted,
estate administration enters a holding period. Appraisals are made; tax
forms are filed; sometimes property is sold to pay creditors or because no
one wants it. If there is a will that an interested party 28 believes should
not be enforced, there may be a will contest. 29 If there is a dispute about
the will’s meaning or whether a substantive rule (like the Rule Against
Perpetuities) has been violated, there may be litigation.
Traditionally, the scope of a personal representative’s duty to protect the
estate’s assets during this period fit the short-term nature of estate
administration: the focus was on supervision and preservation. 30 Because
courts have been moving toward treating personal representatives in much
the same way as trustees, we will discuss the duties of each after we have
examined the law of trusts. 31
Once assets have been assembled, creditors paid, and problem areas
addressed, the personal representative closes the estate by distributing the
remaining property to those entitled to it. Distributions might be to
individuals, to charities, to trustees of already existing trusts, or to trustees
of trusts created by the decedent’s will.

[2] Is Probate Necessary?

We sometimes assume that because the probate system is available, it
must be used. Instead, in each case, we ought to be recalling the functions
of the system and asking whether this particular probate is necessary.
Imagine that Marge Gorski comes into your office to tell you of the death
of her husband, Ed. Ed was recently retired from Monroe Tool Works;
Marge still works for Ace Hardware. They owned a house in joint tenancy,
and had joint checking and savings accounts, and a car titled in both names.
27 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950). In Mullane, the Court announced due

process standards for adequate notice, which now apply to both in personam and in rem actions.
28 In this context, an “interested party” is someone who would benefit from the will being

invalidated. Most commonly, challengers are persons who would take under an earlier will
or under the intestate statute if there were no valid will.
29 The most common grounds for contest are that the testator (will maker) lacked mental

capacity, was subject to undue influence, or failed to follow technical rules regarding the will’s
execution. See Jeffrey A. Schoenblum, Will Contests—An Empirical Study, 22 Real Prop. Prob.
& Tr. J. 607 (1987). See generally Chapter 3, infra.
Procedures for contesting wills vary. In some jurisdictions, a contest may be brought in the
probate court. In others, it must be in the court of general jurisdiction. See generally Page
ch. 26.
30 For a good illustration of the problems a personal representative might face, see Estate

of Baldwin, 442 A.2d 529 (Me. 1982).

31 See Chapter 13, infra.
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§ 2 OVERVIEW OF INTERGENERATIONAL WEALTH TRANSFER 7

Ed’s retirement plan names Marge as the next beneficiary, and there is
some life insurance, again payable to Marge. They have no other assets
beyond clothes, jewelry, and furniture. The only debts are pending charge
card bills. Ed’s will gives everything to Marge; the children are making no
claims.
On these facts, there is no good reason to bother probating Ed’s estate.
The only assets Ed owned alone (the tangible personal property) are already
in the house, so there is no problem with assembling estate assets. Marge
fully intends to pay off the charge cards, so creditors are not a worry. Since
Marge’s survivorship interest gives her the house, there is no potential title
problem.
The example suggests some situations that could call for probate. If a
bank account were in Ed’s name alone, letters of authority from a probate
court might be the only way to get the bank to release the money. On the
other hand, perhaps something else could be worked out informally. If Ed
had owned a business, cutting off creditor’s claims might be important.
Though the Pope case, discussed above, would require reasonable efforts
to find and notify creditors, going through probate would provide some
security against creditors who appeared later. Before deciding, you would
want to know how likely their appearance would be. If children from a
former marriage are questioning the will’s validity, you may need a hearing,
but you may be able to reach a settlement. If the house had been in Ed’s
name alone, probate probably would be necessary to vest a clear title in
Marge. Some title insurance companies, however, might be willing to insure
a title in Marge’s name on the strength of affidavits, instead of requiring
a probate court order. For any number of reasons, you may want to advise
Marge to use the probate process, but you ought to have reasons.
When someone has died, we need to collect the assets, take care of
creditors, resolve any disputes among claimants, and get clear title into the
hands of the right survivors. If we need the probate system to accomplish
one of those tasks, we should use it. If not, we shouldn’t.

[B] Lifetime Transfers

We now turn to devices that effectively transfer wealth at someone’s
death, but that are not subject to the probate system. For this reason, they
are often called “will substitutes.” Principal among them is the trust, which
we will cover in detail later. 32 This section introduces the trust concept and
some terminology, and then describes other nonprobate transfers. 33
Be sure to distinguish probate avoidance from tax avoidance. Many forms
of wealth that do not pass through probate are nonetheless subject to tax. 34
32 See Chapter 4, infra.
33 See generally Chapter 5, infra.
34 The federal gift and estate tax system is discussed in Chapter 14, infra.
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[1] Trusts
Because trusts are so flexible, they are the most useful single estate
planning device. Professor Scott, the dominant figure of 20th century trust
law, reminds us that “[t]he purposes for which trusts can be created are
as unlimited as the imagination of lawyers.” 35 Scott challenges us to use
trusts creatively to meet the needs of our clients. Trusts are flexible because
the essential elements are so few: (1) an intention to create a trust with
(2) property (sometimes called the res) (3) held by someone (the trustee)
(4) to benefit someone else (the beneficiary). The property serves as the
principal (or corpus) of the trust, invested to generate income for the
beneficiaries. Of course, there must be someone to create the trust. This
person might be called the settlor, donor, trustor, or testator, depending
upon the situation and local custom.
One person can assume any number of different roles, just so long as the
trustee owes a duty to someone else. The settlor could be a trustee, by
announcing that property she owned was now being held in trust for the
benefit of others. One of those beneficiaries could even be the settlor/trustee
herself. The only limit is that one person cannot be both trustee and sole
beneficiary. 36 Of course, different people might assume each of those roles.
It is quite common, for example, for a settlor to give money to a bank as
trustee to invest for members of the settlor’s family.
A trust may be created by lifetime transfer or by will. If a trust is created
during the life of the settlor, it is called a “living” (or “lifetime” or “inter
vivos”) trust. If a trust is created by will, it is called a “testamentary” trust.
Questions involving living trusts can be resolved in courts of general
jurisdiction, but there is no ongoing judicial supervision. Testamentary
trusts are typically subject to the continuing jurisdiction and supervision
of the probate court.
To see when a trust might be appropriate, consider a couple who want
to provide for their young children if the parents die while the children are
minors. Each of the parent’s wills could give everything to the surviving
parent. If one died but the other survived, the survivor would continue to
care for the children. If there were no surviving parent, 37 however, the will
could give everything in trust to the local bank to manage for the children.
In addition, life insurance might be made payable to the trustee. While the
children were young, the income (and perhaps principal) from the trust
would help support them. Once the children reached adulthood, the trustee
could distribute the principal. Later we will examine some of the variations
35 1 Austin W. Scott & William F. Fratcher, The Law of Trusts 4 (Little, Brown 4th ed.

1987-1991).
36 The basic notion is that without someone to enforce a trustee’s duties, there are no duties.

Technically, we may say there is no separation between legal title (held by the trustee) and
equitable title (held by the beneficiaries). For discussion, see §§ 12[B], [C], [D], infra.
37 Suppose a car crash, or deaths from different causes but close in time, as in Ogle, discussed

in § 1, supra.
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§ 2 OVERVIEW OF INTERGENERATIONAL WEALTH TRANSFER 9

available to shape the trust to the needs of particular families. For now,
concentrate on understanding the trust’s basic structure.

[2] Other Lifetime Transfers

While the trust is the most complex probate-avoidance device, others are
more common. You will recall from your Property course how the surviving
joint tenants own the entire property when one joint tenant dies. This
survivorship feature makes joint tenancy holdings extraordinarily popular,
especially among persons of modest means. Real estate, bank accounts,
stocks, and bonds can all be held in “joint with survivorship” form. Because
the survivor no longer shares ownership with the one who has died, the
decedent effectively has transferred wealth at death. Because of the legal
theory that the survivor has owned the property all along, however, no will
is required.
The law of contracts supplies another way around probate. Funds paid
by a third party at the death of someone are often treated as contract rights
of the beneficiary, rather than property of the one who died.
Life insurance is the most common example of this way of giving money
at death. Though the industry has developed a wide array of products in
recent years, they commonly fall into one of two basic categories. Term
insurance covers the risk of someone dying during the term of the policy. 38
Other products incorporate an investment feature as well. 39
Death benefits from life insurance bypass the probate system because
courts do not consider, for purposes of transferring title, those benefits as
property of the decedent. In recent years, the use of “payable-on-death” and
“transfer-on-death” accounts has expanded significantly. Statutes have
authorized bank accounts and, more recently, mutual funds, other securi-
ties 40 and even land, 41 to be held in these forms. The explosion of retire-
ment plans also has produced a new way of accumulating wealth and leav-
ing it to survivors outside of probate. 42
Professor John Langbein has noted how these developments have pro-
found implications for the law of wealth transfer. 43 On the one hand, the
law of wills could learn from the law that has developed around these other
devices. On the other, what Langbein calls the subsidiary law of wills—
rules about how to interpret documents in various situations—holds many
38
If there is a death, the company pays the face amount to the beneficiary.
39
If the insured dies while the policy is in force, the beneficiary is paid. Because of the
investment feature, however, the owner has the option of drawing out the built-up value of
the policy before death.
40 See Richard V. Wellman, Transfer-on-Death Securities Registration: A New Title Form,

21 Ga. L. Rev. 789 (1987).

41 Ohio Rev. Code § 302.22-.23.

42 Sometimes retirement benefits are created by contract and sometimes the trust form is

used, but the probate avoidance result is the same.

43 See John H. Langbein, The Nonprobate Revolution and the Future of the Law of

Succession, 97 Harv. L. Rev. 1108 (1984).

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10 LAWYERS, ESTATES, AND TRUSTS CH. 1

lessons for nonprobate transfers. For example, if someone makes a will in

favor of a spouse whom he later divorces, the will provision commonly is
treated as revoked. 44 Should we not get the same result if the gift had been
in trust? The notion that we should have an integrated wealth-transfer
system, which depends more on substance than on form, is gaining increas-
ing attention. As we consider the various doctrines discussed in this text,
we will be asking whether good reasons support the different approaches
traditionally taken toward these various devices.

[C] The Uniform Codes and the Restatements

Law reform engines have significantly affected the law of trusts and
estates. The Uniform Probate Code (UPC) and the Uniform Trust Code
(UTC) offer statutory language and commentary to state legislatures
considering reform (and indirectly influence court decisions). The Restate-
ments of Property and of Trusts provide guidance to courts (and indirectly
influence legislatures). This subsection briefly introduces these vehicles for
reform.
In 1969, the Commissioners on Uniform State Laws promulgated the
UPC as a comprehensive statute covering a broad range of issues related
to family wealth transfers: jurisdiction, intestacy, wills, probate procedure,
guardianship, trust administration. 45 Since then, a number of revisions
have been made, most notably in 1990. 46
The UTC was approved in 2000 and is being considered in a number of
states. 47 The act codifies an area of law traditionally established by court
decisions that necessarily left large gaps in some jurisdictions. 48
The UPC is a continually evolving document, sheparded by the Joint
Editorial Board for the Uniform Probate Code (JEB-UPC). This group of
44
See, e.g., UPC (pre-1990) § 2-508. See generally 45[B][1], infra.
45
For brief discussions of the process of creating and marketing uniform laws, see John
H. Langbein & Lawrence W. Waggoner, Reforming the Law of Gratuitous Transfers: The New
Uniform Probate Code, 55 Alb. L. Rev. 871, 875-899 (1992), and Lawrence H. Averill, Jr., An
Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 Alb. L. Rev. 891, 901-906
(1992).
46 Many of the changes are analyzed in an extensive symposium. See Symposium on the

Uniform Probate Code: Reflections on Recent Revisions, 55 Alb. L. Rev. No. 4 (1992). See also
Mark L. Ascher, The 1990 Uniform Probate Code: Older and Better, or More Like the Internal
Revenue Code, 77 Minn. L. Rev. 639 (1993); Mary L. Fellows, Traveling the Road of Probate
Reform: Finding the Way to Your Will (A Response to Professor Ascher), 77 Minn. L. Rev. 659
(1993); Bruce H. Mann, Formalities and Formalism in the Uniform Probate Code, 142 U. Pa.
L. Rev. 1033 (1994). The Uniform Laws Annotated lists 16 adopting states of various UPC
versions: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota,
Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota and Utah.
8 U.L.A. 1 (2002 Pocket Part).
47 Iowa’s new trust code is based on a UTC draft. See Martin D. Begleiter, In the Code We

Trust—Some Trust Law for Iowa at Last, 49 Drake L. Rev. 165 (2001).
48 See generally David M. English, The Uniform Trust Code (2000): Significant Provisions

and Policy Issues, 67 Mo. L. Rev. 143 (2002).

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academic lawyers and practitioners monitors how the UPC is working and
recommends both piecemeal and comprehensive (as in 1990) revisions.
Facilitated by overlap of interest and personnel, the JEB-UPC has worked
cooperatively with groups revising the Restatement of Property and the
Restatement of Trusts.
Those Restatements, like others you have learned about, are the product
of the American Law Institute, an organization of judges, lawyers and law
professors founded in 1923 to clarify, simplify and otherwise reform the law.
Two projects are particularly relevant to our topic: The Restatement (Third)
of Property (Wills and Other Donative Transfers) and the Restatement
(Third) of Trusts. Both are ongoing efforts, but the directions in which they
are moving can guide us as to how the law of the future—the law you will
be using—will look.
As unlikely as it may seem, the law of wills and trusts is full of life. Its
subject matter is people, and its doctrine is in the process of reforming to
take advantage of newly developed approaches and to meet new needs.