55 Pages Posted: 1 Sep 2016 Last revised: 2 Feb 2017
Date Written: August 31, 2016
The rules that govern the creation of an estate plan are in flux. Courts once demanded strict adherence to the Wills Act. Yet this legacy of hyper-vigilance is waning, as the Uniform Probate Code, the Restatement (Third) of Property, and ten states have adopted the harmless error rule. Meanwhile, trusts, which need not comply with the Wills Act, have eclipsed wills as the dominant method of posthumous wealth transmission.
This Article explores three budding topics that threaten to further complicate this area. First, there are anecdotal accounts of decedents trying to make electronic wills. In both strict compliance and harmless error jurisdictions, e-wills raise thorny issues about the meaning of “signed” and “writing” in the Wills Act, and when, if ever, courts should be able to overlook violations of the statute. Second, despite the received wisdom that trusts are less formal than wills, a rising number of settlors are failing to observe the arcane principles that govern the transfer of property into a trust. Third, most state legislatures have adopted or are currently considering statutes that give fiduciaries access to the contents of a decedent’s email, text messaging, and social media accounts. But the precise steps necessary to convey these cutting-edge forms of property after death is unclear.
The Article tries to help courts and policymakers regulate these matters by offering a fresh perspective on the purpose of mechanical, bright-line principles in the realm of estate planning. As conventionally framed, this debate revolves around what the Article calls the “intent paradigm”: the idea that execution doctrines should be gauged primarily by whether they facilitate or frustrate the wishes of individual decedents. Conversely, the Article explores a different virtue of formalism: its ability to prevent decedents from imposing spillover costs. The Article demonstrates how some unyielding principles limit the burden on courts, survivors, trustees, the trustee’s creditors, purchasers of trust property, and other third parties. It then explains how recognizing this anti-externality function can pay dividends in wills law, trust law, and emerging niches such as the inheritability of digital assets.
Keywords: wills, trusts, formalism, Gulliver, Tilson, estate plan, electronic wills, digital assets, Fiduciary Access to Digital Assets Act, Privacy Expectations and Afterlife Choices Act
Suggested Citation: Suggested Citation
Horton, David, Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism (August 31, 2016). Boston College Law Review, Vol. 58, Forthcoming; UC Davis Legal Studies Research Paper No. 503. Available at SSRN: https://ssrn.com/abstract=2833019