chevron-down Created with Sketch Beta.

Probate & Property

May/Jun 2023

Keeping Current—Probate

Prof. Gerry W. Beyer


  • Cases include breach of turst: Monthly account statements begin running of statute of limitations.
  • New in literature Adult Guardianship: In Adult Guardianship Privacy, Redaction, and Professional.
  • In legislation, New York clarifies the operation of statutory short-form power of attorney. 2022 Sess. Law News of N.Y. Ch. 784.
Keeping Current—Probate
EvgeniyShkolenko via Getty Images

Jump to:

Keeping Current—Probate offers a look at selected recent cases, tax rulings and regulations, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.


Breach of Trust

Monthly account statements begin running of statute of limitations. Adopting language from the Uniform Trust Code, Mich. Comp. Laws § 700.7905(1)(a) establishes a one-year statute of limitations on actions for breach of trust for beneficiaries against trustees beginning after the trustee sends the beneficiaries “a report” sufficient to disclose the existence of a potential claim and informs the beneficiaries of the one-year period. In Kilian v. TCF National Bank, No. 358761, 2022 WL 12073427 (Mich. Ct. App. Oct. 20, 2022), the court held that a monthly account statement including notice of the one-year limit was sufficient to begin the running of the statute and expressly rejected the argument that the statement was inadequate because it did not include information on benchmarks, projected gains and losses, and information on why investment decisions were made.

Inheritance Tax

Substance rather than form determines if a transfer was intended to take place at death. Parents executed two deeds conveying farmland to their child. After the parents’ deaths, a dispute arose between the child and the executors (other children of the decedents) over whether the land was subject to Nebraska inheritance tax because the transfers, although absolute on their face, were intended to take place after death. The county court held that tax did not apply, and the Supreme Court of Nebraska reversed on appeal in In re Estate of Lofgreen, 981 N.W.2d 585 (Neb. 2022), because the grantors continued to pay expenses related to and taxes on the property, leased out the property to another child, received income they reported for tax purposes, maintained insurance on the property, and when grantee eventually did pay expenses and taxes, the grantors reimbursed the grantee.


California law determines parentage although family resided outside of the state. The decedent died a resident of California, and under California law, the heirs were the descendants of the decedent’s grandparents. An individual claimed to be an heir through a presumed parent-child relationship between the individual and the decedent’s mother’s sibling. In affirming the probate court’s finding that the individual was an heir, the court in Wehsener v. Jernigan, 302 Cal. Rptr. 3d 916 (Cal. Ct. App. 2022), held that the individual’s status would be determined under California law even though the presumed parent and the child never lived in California, that clear and convincing evidence supported the finding of presumed parentage, that the administrator offered no facts to rebut the presumption, and that it could not be rebutted on alleged public policy considerations alone.

Pro Se

Lay trustees may not act pro se for a trust. The purchaser at a sheriff’s sale brought a quiet title action to strike a deed a trust recorded. The trustees defaulted and later filed a pro se petition to reopen the matter, which was denied. The trustees then filed a pro se notice of appeal. Denying the purchaser’s application to quash, the Pennsylvania Superior Court in Delaware Valley Landscape Stone, Inc. v. RRQ, LLC, 284 A.3d 459 (Pa. Super. Ct. 2022), held as a matter of first impression that trustees who are not lawyers may not represent the trust in legal proceedings but that the notice of appeal filed by the trustees is not a nullity and the court, therefore, may exercise jurisdiction over the appeal. The brief filed by the trustees was stricken, and the trustees were directed to obtain counsel if they wished to proceed.

Racketeer Influenced and Corrupt Organizations Act

RICO claim related to probate proceeding does not require federal abstention. In the course of a prolonged dispute in the Rhode Island courts over the administration of a parent’s estate, one of the children-beneficiaries brought a proceeding in federal district court including allegations of violations of RICO based on the actions of the executors and other children-beneficiaries. The district court dismissed for lack of subject matter jurisdiction based on the probate exception to federal jurisdiction. On appeal, the First Circuit reversed in Glassie v. Doucette, 55 F.4th 58 (1st Cir. 2022). Although the federal suit covers much the same ground as the state proceedings, those proceedings are unlikely to resolve completely the issues in the federal proceeding, particularly the RICO claim, and abstention is not required on that ground. Nor is specific probate abstention required because the calculation of damages might require a valuation of estate assets or because some of the claims involve allegations of breach of fiduciary duty. Any problems can be resolved by coordination between the state and federal courts.

Trust Jurisdiction

Court has no jurisdiction because trustee’s conduct not directed at state. The trustee of an Illinois trust living in Florida was sued in the Nevada courts by the life beneficiary, who lived in Nevada. The lower courts denied the trustee’s motion to dismiss for lack of personal jurisdiction, and on appeal the Supreme Court of Nevada reversed in Matter of Paul D. Burgauer Revocable Living Trust, 521 P.3d 1160 (Nev. 2022). The court held that because the beneficiary’s claims involved intentional torts, under US Supreme Court precedent, such as Calder v. Jones, 465 U.S. 783 (1984), the “effects test” applied. Under that test, there was no personal jurisdiction because the trustee had not purposefully directed the trustee’s conduct to Nevada. The only connection with the state was the beneficiary’s residence, and no independent action occurred in Nevada.

Uniform International Wills Act

Will executed abroad deemed valid under the Act and under conflicts of law principles. A United States person domiciled in Maryland executed a will in Portugal in 2006. When the testator died in 2020, the probate estate consisted only of real property in Nevada. The will was offered for probate in Nevada and admitted. On appeal, the intermediate appellate court affirmed in Matter of Estate of Sweet, 520 P.3d 827 (Nev. Ct. App. 2022), holding that the will complied with the Nevada codification of the uniform act because the Portuguese notary who signed the will and supervised execution is an “authorized person” under the statute. The will also was admissible because it was valid under the law of the place of execution and the law of the testator’s domicile at that time.

Tax Cases, Rulings, and Regulations

Tax Deficiency

Res judicata prevents wife from raising innocent spouse defense. The taxpayer and her husband petitioned the Tax Court in a deficiency case for the years 2000 to 2004. The husband hired an attorney. Before the Tax Court decided the case, however, the husband died. The husband’s estate, of which his wife and a business colleague served as co-executors, was substituted as a party for the husband in the deficiency case. The Tax Court determined that no deficiencies existed from 2000 to 2003 but that the husband and his business partner had failed to report income in 2004. The wife then filed Form 8857 Request for Innocent Spouse Relief from the joint and several 2004 liability. The wife petitioned the Tax Court after the IRS denied the request, arguing that an exception to res judicata applied because she did not meaningfully participate in the deficiency case. The Tax Court in Kechijian v. Comm’r, T.C. Memo 2022-127, held that she meaningfully participated through her attorney and that even if the litigation had been controlled by her husband before his death, the situation changed after he died. After he died, for 18 months she was a party both individually and as co-executor to her husband’s estate. Although she delegated the handling of the deficiency case for 18 months to her co-executor and her attorney, she made that choice and was responsible for the resulting ramifications.


Adult Guardianship

In Adult Guardianship Privacy, Redaction, and Professional Responsibility, 48 ACTEC L.J. 77 (2022), Alberto Lopez explains how a simple oversight like failing properly to redact information in adult guardianship can violate the Rules of Professional Conduct and cause irreparable harm to the client. Although modern software may make redaction quicker, he stresses the need to always double-check for redaction before submitting adult guardianship papers to courts.


In Privacy, Probate, and Nazi-Plundered Art, 48 ACTEC L.J. 83 (2022), Alex Swanson suggests that as public documents, probate records can be the potential tools to finally locate Nazi-looted art and secure restitution for the victims’ families. He explains how privacy provided by non-probate transfers complicates the current efforts to find the missing art, and he suggests a public recording system for transfers of what he calls “suspect artworks” as a solution.

Assisted Reproduction

In Functional Siblings, Donor-Conceived People and Intestacy, 48 ACTEC L.J. 5 (2022), Naomi Cahn examines the legal rights of donor-conceived people and the legal developments to address the needs of modern families, including the Uniform Parentage Act and the 2019 revisions of the Uniform Probate Code. Although there are still many unresolved issues regarding donor-conceived people in trusts and estates, she calls for greater clarity in this murky area of law.

Augmented Estates and Spouses

 In Augmented Estates and Spouses, Nat’l Coll. Prob. Judges L.J. (Fall 2022), Michael Lentz and Brianna Pickhardt explore how many states, like Maryland, are using an “augmented” estate to protect surviving spouses and the complications that probate courts face with this decision. Maryland’s 2020 Augmented Spousal Elective Share Law includes virtually all of a decedent’s current and former assets in calculating a spouse’s elective share. This raises complications for probate courts, forcing them to decide whether non-probate assets should be included in the elective share calculation.

Business Trusts

In Common Law Business Trusts, Anonymity, and Inclusion, 48 ACTEC L.J. 21 (2022), Eric Chaffee analyzes the trade-offs between transparency and privacy in business entities. Under the recently enacted Corporation Transparency Act, the identity of those who own an interest in an entity must be disclosed, but this legislation has an inherent trust exception. He argues in favor of retaining the trust exception because the benefits of allowing “socially stigmatized” individuals to enjoy privacy will result in greater diversity and inclusion in the United States.

Celebrity’s Right of Publicity

In An Estate Plan for Kanye West, 39 Cardozo Arts & Ent. L.J. 195 (2021), Thomas E. Simmons analyzes Kanye West’s property interest in his name, image, and likeness with significant commercial value. In California, this publicity right survives a celebrity’s death and can be transferred to beneficiaries. Simmons proposes a noncharitable purpose trust as a means by which Kanye West can support his family through the economic returns his right of publicity generates and safeguard his image on his own terms.

Common Law Divorce

In Common Law Divorce, 74 Ala. L. Rev. 365 (2022), Michael Higdon offers suggestions to courts, legislators, and policymakers to institute more meaningful access to divorce for marginalized communities who often choose to informally separate rather than formally divorce. Informal divorces often undermine important state interests like safeguarding the economic interests of current spouses and protecting those who are victims of domestic violence and children. Instituting meaningful access to divorce, therefore, provides greater agency to those seeking to dissolve unsuccessful marriages while protecting state interests.


David F. Johnson provides a detailed analysis of the “advantages and drawbacks to using a co-trustee structure to administer a trust” in The More the Merrier? Issues Arising from Co-trustees Administering Trusts, 15 Est. Plan. & Comm. Prop. L.J. 35 (2022).


In The Wills of COVID-19: The Technological Push for Change in New York Trusts and Estates Law, 95 St. John’s L. Rev. 951 (2021), Olivia Visconti argues that to ensure testators’ abilities to execute their wills safely, New York should adopt a form of the Uniform Electronic Wills Act, which defines electronic wills and offers a model for electronic will legislation. As the overall trend of will formalities in the United States leans toward an acceptance of modern technological alternatives, Visconti highlights the need for New York to do the same and bring New York Trusts and Estates Law into the twenty-first century.


In Privacy in Plain Sight: How Blockchain Assets and Decentralized Technology Can Increase Privacy in Inheritance, 48 ACTEC L.J. 31 (2022), Tye Cressman explains the “blockchain privacy paradox” for inheritance planning and ponders the question, “How does this developing technology impact the role of a post-mortem fiduciary as it pertains to the inheritance of Blockchain assets?”

Double Basis Step-up Rule

In Geographic Income Tax Marriage Equality: A Proposal to Expand the Double Basis Step-Up, 55 Mich. St. L. Rev. (2022), Daniel Durst argues that surviving spouses in community property states benefit from a significant, but unintended, tax advantage over surviving spouses in other states because of the current double basis step-up at death rule. To eliminate this geographic inequality, there should be a national eligibility for double basis step-up for every surviving spouse’s “marital property,” instead of a state law defined “community property.” This solution would create geographic equality and be easily incorporated into long-standing basis rules.

Dynasty 529 Plans

 In Dynasty 529 Plans and Structural Inequality, 61 Washburn L.J. 497 (2022), Victoria Haneman argues that current educational incentives, like 529 plans, often entrench rather than mitigate class divisions. To bridge this gap, Haneman recommends three important changes: (1) create limits to discourage dynastic use; (2) change the definition of “qualified education expense” to exclude K-12 education; and (3) cap the amount of income that may accrue without tax.

Electronic Wills

In Legacies of a Pandemic: Remote Attestation and Electronic Wills, 48 Mitchell Hamline L. Rev. 826 (2022), Richard Storrow examines how the coronavirus pandemic has propelled many states to institute remote attestation on an emergency basis and the unforeseen problems that have resulted in an environment that is still largely unreceptive to electronic wills. Storrow explains that this unexpected change presents both difficulties and opportunities. He predicts that the current experiment with remote attestation will speed the enactment of electronic-will legislation and make estate planning more accessible in the modern digital age.


Christine Vanderwater argues in her Comment, Don’t Risk, Don’t Dwell: How Employers’ ERISA Benefit Plan Offerings, or Lack Thereof, Routinely Fail LGBTQIA+ Employees and Solutions for Employers, 15 Est. Plan. & Comm. Prop. L.J. 175 (2022), that employers should keep equity, rather than equality, in mind as they enact policy changes to their ERISA plans because “equal treatment does not always produce an equitable result.”

Financial Secrecy

In Joining the Global Community in the Fight Against Financial Secrecy: Congress Enacts the Corporate Transparency Act to Mandate Beneficial Ownership Reporting in the United States, 48 ACTEC L.J. 49 (2022), Glenn Fox, Raj Malviya, Michael Breslow, and Kevin Shepherd consider the significant step the United States made in improving financial transparency with the recently enacted Corporate Transparency Act.

Grantor Trusts

In Grantor Trusts: The MVP of the IRC, 15 Est. Plan. & Comm. Prop. L.J. 91 (2022), Kelly M. Perez “focuses on the current legislative standing of grantor trusts as well as some of the more detailed nuances of grantor trust planning.”

Heirs Property

In Heir Property Owners and Federal Disaster Aid Programs: Opportunities for a More Equitable Recovery When Disaster Strikes, 30 J. Affordable Housing & Community Dev. L. 467 (2022), Heather Way and Ruthie Goldstein discuss the historic struggles that Black and Latinx communities face when living on heir property and trying to access disaster relief programs due to the onerous ownership verification requirements. In an era of climate change, Way and Goldstein share major obstacles and offer recommendations for additional legal and policy reforms to allow these disaster survivors to get the help they need to rebuild their homes.


Adam Hirsch examines the public policy of anti-lapse statutes, assessing them by undertaking the first survey of popular preferences concerning the matter in When Beneficiaries Predecease: An Empirical Analysis, 72 Emory L.J. 307 (2022). He hopes that this empirical data will help lawmakers better align default rules to probable intent and thus advance the equity of estate planning.

Maine—Adult Guardianship Reform

In her Comment, Revisiting the Visitor: Maine’s New Uniform Probate Code & The Evolving Role of the Court-Appointed Visitor in Adult Guardianship Reform, 74 Me. L. Rev. 141 (2022), Lisa Rosenthal explains the critical role a court-appointed visitor plays in helping a judge understand the circumstances of a guardianship. As Maine continues to reimagine its probate court system, Rosenthal argues that a robust visitor program is one of the only ways to ensure that all alternative methods have been exhausted before resorting to the appointment of a guardian.

Minor Guardianship

In Minor Guardianship, Nat’l Coll. Prob. Judges L.J. (Fall 2022), Deborah Cochelin explains the history of minor guardianship and stresses the need for uniformity of minor guardianship laws to better safeguard children in our constantly growing and mobile society.

Pet Euthanasia

In Unleashing Pets from Dead-Hand Control, 22 Nev. L.J. 349 (2021), Kaity Emerson and Kevin Bennardo address the validity of pet euthanasia provisions in decedents’ wills and propose the anti-waste doctrine as a simple and sufficient rationale for courts to find pet euthanasia provisions unenforceable.

Probate Avoidance

In Fringe Inheriting: Probate Avoidance at Both Ends of the Wealth Spectrum, 48 ACTEC L.J. 95 (2022), Allison Tait examines why low-income and high-wealth families transfer wealth outside of the public process of probate courts. Though their personal experiences differ, low-income and high-wealth earners share a similar distrust of the probate process. Redefining this process could provide significant benefits for low-income families. Additionally, pushing high-wealth families from more private wealth transfers toward a system of increased transparency, like probate, might lead to more comprehensive societal benefits.

Publicity—Planning Techniques

In The Post-Mortem Right of Publicity: Defining It, Valuing It, Defending It, and Planning for It, 48 ACTEC L.J. 63 (2022), Sharon Klein and Jenna Cohn share new developments on the post-death right of publicity and provide a helpful comparative chart to reflect the states’ differences. They also discuss tax-minimization techniques considering evolving state law affecting estate planning for the rich and famous on this issue.

Publicity—Policy Considerations

In Identity Appropriation and Wealth Transfer: Twain, Cord, and the Post-Mortem Right of Publicity, 48 ACTEC L.J. 41 (2022), Alyssa DiRusso and Timothy McFarlin encourage policymakers and private institutions to consider how inequalities have affected and may continue to affect the control of identity and inheritance of wealth from the right of publicity. They argue the importance of critically considering race and gender when evaluating this commercially valuable post-death right of publicity.


In Of Privacy and Publicity: Symbiotic Rights (Or Wellspring of Obfuscation), 48 ACTEC L.J. 13 (2022), Jeffrey Carson and Trace Brooks explore significant estate planning opportunities to help clients preserve commercially valuable publicity rights using Tennessee’s unique trust law. Though untested (to the author’s knowledge), Tennessee’s right of publicity has a 10-year term that resets after the commercialization of the right, creating an opportunity for a never-ending right of publicity.

Ranch Owners

In Estate Planning for Ranch Owners, 15 Est. Plan. & Comm. Prop. L.J. 1 (2022), Tanya E. Feinleib explains how planning for ranch owners “involves a complex interplay of real estate law, federal and state tax laws, business law, family law, and employment law” and provides valuable planning advice.

Same-Sex Couples

Elizabeth Brenner provides “practical suggestions for working with LGBTQ clients” in Estate Planning and Probate for Same-Sex Couples, 86 Tex. B.J. 88 (2023).

Space Mineral Rights

In her Comment, The Private Space Race: Applying Private Space Mineral Rights to Texas State Property and Estate Planning Law, 15 Est. Plan. & Comm. Prop. L.J. 137 (2022), Kinsee Tumlinson analyzes the need for legislation “governing the use, rights to, [and] ownership of natural resources from outer space once they are brought to Earth.”

Sweden—Inheritance Reform

In Changing Property Rights in the Family: Evidence from an Inheritance Reform, 65 J.L. & Econ. 343 (2022), Gustaf Bruze and Emma von Essen provide the first economic evaluation of a Swedish 1988 inheritance reform that reassigned property rights in the extended family. Before the 1988 reform, children inherited the estate of a deceased married parent and, afterward, the estate is inherited by the surviving spouse. This study rejected the idea that if parents are altruistic toward children, a change of property rights in the family has no effect on the consumption of parents and children. Results showed that the inheritance reform increased the surviving spouse’s overall standard of living and had minimal effect on the children.


In From Illinois to Delaware, Ill. B.J., Aug. 2022, at 26, Ira N. Helfgot provides “a primer on trust collection for creditors” by describing a variety of techniques creditors may use to reach trust assets to satisfy their claims.


New York clarifies the operation of statutory short-form power of attorney. 2022 Sess. Law News of N.Y. Ch. 784.

Ohio  provides (1) that disability cannot serve as a basis upon which a person may be denied the ability to serve as a guardian for a minor, (2) modernized procedures whereby a body may be disinterred, and (3) a permissible procedure for trustees who are concluding their administration of an irrevocable trust because they are resigning, they are being removed, or the trust is terminating, which, if complied with in good faith and by serving of a notice described in the statute, will bar subsequent claims against the trustee. 2022 Ohio Laws File 152.