The Superwill Debate: Opening the Pandora's Box?
31 Pages Posted: 5 Dec 2005
The superwill concept has sparked interest as commentators and legislators have sought to provide increased flexibility to testators in the disposition of their nonprobate assets. The basic premise underlying the superwill is that a testator may, by executing one testamentary document, dispose of both testamentary as well as nonprobate assets. The superwill thus is a substantial departure from existing law, under which a testator generally may not dispose of nonprobate assets through a will.
This Article explores the significant issues raised by the superwill's adoption. It examines questions relating to the mechanics of the superwill such as what type of nonprobate assets should be governed by a superwill and whether a testator should be able to make initial dispositions of nonprobate assets through the use of a superwill. It then focuses on how adoption of the superwill affects the content of the probate estate from the standpoint of subjecting the assets disposed of in a superwill to the claims of the decedent's creditors, surviving spouse and pretermitted heirs. Also, it explores the issues pertaining to the revocation and revivial of superwills. Finally, it treats the appropriate degree of protection for financial institutions, beneficiaries, and other third parties. This Article demonstrates that the superwill can be a beneficial tool and that any difficulties created by its adoption can be resolved through careful drafting of propsed superwill legislation.
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