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


  • ADOPTION: North Carolina recognizes equitable adoption. In Lankford v. Wright, 489 S.E.2d 604 (N.C. 1997), the court recognized the doctrine of equitable adoption and allowed a foster child to inherit from an intestate foster parent. The court limited the doctrine to situations in which an express or implied agreement to adopt, reliance, performance by the natural parent in relinquishing care of the child, partial performance by the foster parents by caring for the child and intestacy of the foster parent are all proved by clear, cogent and convincing evidence.
  • ANCILLARY PROBATE: Will may be challenged. A testator was a domiciliary of Florida, where her will was admitted to probate. The will was offered for ancillary probate in Kentucky and contested on the grounds of lack of capacity and undue influence. In Marr v. Hendrix, 952 S.W.2d 693 (Ky. 1997), the court held that the will could be challenged. Kentucky has total authority over the devolution of Kentucky real property and thus the full faith and credit clause did not require acceptance of the Florida decree, which only determined the formal validity of the will.
  • DISCLAIMERS: Subsequent gift to disclaimant does not necessarily prevent qualified disclaimer status. Beneficiaries disclaimed various interests. The person who received the property because of the disclaimers later made gifts to the disclaimants in amounts approximately equal to the property disclaimed. In Monroe Estate v. Commissioner, 124 F.3d 699 (5th Cir. 1997), the court held that the later gifts did not necessarily evidence a prior agreement that would have disqualified the disclaimers.
  • FIDUCIARY RESPONSIBILITY: Prudent person rule may require diversification. A settlor created a testamentary trust, funded almost entirely with real property, that was intended to pay income to his siblings and their children with eventual termination and distribution. The trustee retained the real property in the trust and sold it at termination for much less than the property had been worth a decade earlier. The remainder beneficiaries sued. In Estate of Maxedon, 946 P.2d 104 (Kan. Ct. App. 1997), the court held that a trustee has an implied power to sell nonwasting real property absent a prohibition in the trust instrument and that the prudent person standard includes a requirement to diversify trust investments to carry out the terms of the trust. Under the facts of this case, however, the trustee had not violated that duty.
  • INCORPORATION BY REFERENCE: Nomination of trustee in will did not change trustee of inter vivos trust. A testatrix created an inter vivos trust naming a bank as trustee. Her will devised certain property to a different trustee who sought to remove the bank as trustee of the inter vivos trust. In Lewis v. SunTrust Bank, 698 So. 2d 1276 (Fla. Ct. App. 1997), the court held that the mere nomination of a trustee in a will was not a sufficient reference to the trust to incorporate it and thus the bank continued as trustee of the inter vivos trust.
  • INTER VIVOS TRUSTS: Trust liable for post-death child support. After receiving a structured settlement arising from an auto accident, a husband was divorced and required to pay child support. He later transferred his rights to the structured settlement into a trust. The trustee refused to continue child support payments from the trust after the husband died. The court in Marriage of Perry, 68 Cal. Rptr. 2d 445 (Cal. Ct. App. 1997), held that the rule making child support payments a charge against a decedent's estate applied equally to living trusts.
  • JOINT ACCOUNTS: Survivorship rights in favor of caretaker did not raise presumption of construc- tive fraud. When the decedent went to live with his nephew, he placed his cash into a joint account with the nephew. The decedent died two months later. His executor claimed the account as an asset of the estate. In Nugen v. Simmons, 489 S.E.2d 7 (W. Va. 1997), the court held that the nephew's position as the decedent's caretaker did not give rise to a confidential or fiduciary relationship that would trigger a presumption of constructive fraud.
  • LIFE ESTATES: Life estate persists in proceeds. A beneficiary received a life estate in a testator's property. The beneficiary sold the family home and invested the proceeds in a condominium and a certificate of deposit held jointly with a niece. The beneficiary's will purported to dispose of the condominium. In Cladwell v. Walraven, 490 S.E.2d 384 (Ga. 1997), the court held that the life estate persisted in the proceeds of sale, the condominium did not pass under the will and the certificate of deposit passed to the remainder beneficiaries.
  • MEDICAID: Trust created by third person but funded by applicant deemed available resource. A Medicaid applicant's brother created a trust for her benefit and served as the trustee. The applicant assigned most of her assets to this trust. The trust was revocable by the trustee and gave the trustee sole and absolute discretion to accumulate or pay income to the applicant with the consent of her brother or his wife. The applicant also had a testamentary special power of appointment. In Masterson v. Dept. of Social Services, 1997 WL 612882 (Mo. Ct. App. 1997), the court held that the trustee had the legal obligation to make payments from the trust for the applicant's health care needs, and that trust provisions limiting trust distributions to supplement government benefits and asserting that the trust was not be regarded as an available resource were contrary to public policy.
  • NEGATIVE WILLS: Disinheritance of all heirs did not cause escheat. The testator's will left his entire estate to his brother and expressly disinherited all of his other heirs. Because the brother predeceased the testator, the state claimed his estate by escheat. In Estate of Jetter, 570 N.W.2d 26 (S.D. 1997), the court denied the state's claim by interpreting the statute allowing for a negative will (identical to UPC 2-201) as enacting the English Rule that permits disinheritance of a testator's heirs only if there are other heirs who could take.
  • NO CONTEST CLAUSE: Attack on collateral document triggered forfeiture. The decedent's estate plan included a stock redemption agreement between him and the closely held corporation for which he worked. The decedent's inter vivos trust, funded with this stock, contained a no contest clause. After his death, his widow attempted to challenge the stock redemption agreement. The court in Genger v. Delsol, 66 Cal. Rptr. 2d 527 (Cal. Ct. App. 1997), mod. on reh'g, 67 Cal. App. 4th 754B, 1997 WL 561204 (1997), held that an attack on the agreement was an attack on the estate plan and invoked the no contest clause.
  • WILL EXECUTION: Publication may be implied. A testatrix's will was challenged on the grounds that there was no evidence the testatrix signified to the witnesses that the document was her will. In Jackson v. Patton, 952 S.W.2d 404 (Tenn. 1997), the court found that the publication requirement may be satisfied by a testatrix's acts and conduct and from the circumstances surrounding the execution.
  • WILLS: Probated will is property of the state and not of legatee. On the death of baseball player "Shoeless Joe" Jackson, his will was validly probated. When Jackson's widow died, she left her estate to charitable beneficiaries who wanted to remove the will from probate so they could raise money by selling it; the will contains a rare and presumably valuable example of Jackson's signature. In American Heart Ass'n v. County of Greenville, 489 S.E.2d 921 (S.C. 1997), the court denied the request, holding that once filed for probate, a will becomes a public record and the property of the state.
  • CRUMMEY TRUSTS: Beneficiary's failure to exercise withdrawal power made the beneficiary the grantor for S corporation purposes. PLR 9745010.
  • LIFE INSURANCE: Payment of premiums on family split-dollar policy on second-to-die not a gift and proceeds not included in estate of surviving spouse. PLR 9745019. See also PLRs 9746004 and 9746006.
  • VALUATION: Contingent annuity interest did not meet Code 2702(b) requirements to be deemed a qualified annuity. PLR 9741001.
  • Art transfers. In A Collector's Guide to Art, Taxes and Charitable Deductions, Tr. & Est. (Sept. 1997) at 26, Edward Polisher and Theresa M. Peeler delineate how to achieve tax benefits for art transfers to charitable organizations.
  • Chapter 14. Martin D. Begleiter considers Estate Planning in The Nineties: Friday the Thirteenth, Chapter 14: Jason Goes to Washington, Part II, 47 DePaul L. Rev. 1 (1997).
  • Charitable trust. Jennifer I. Last asks Is It a Grantor Charitable Lead Trust or Not? How the Grantor Trust Rules Interact with the Charitable Lead Trust, 30 J. Marshall L. Rev. 1023 (1997), and explains the effects on income, estate and gift taxes of charitable lead trusts and the wisdom of their creation.
  • Closely held corporations. Peter B. Tierman explains The Significance of "Control" in Planning for a Married Couple's Closely Held Stock, 87 J. Tax'n 218 (1997), and discusses how to structure the ownership of closely held stock to maximize tax savings and pass control of the business to the next generation.
  • Commercial trusts. John H. Langbein reveals The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107 Yale L.J. 165 (1997), including the development, use and benefits of commercial trusts.
  • Contingent bequest. Ted D. Englebrecht and Monica E. Selmonoski delineate planning suggestions to obtain estate tax deductions for contingent gifts in Contingent Bequest and Estate Tax Charitable Deductions, Tr. & Est. (Sept. 1997) at 40.
  • Domicile change. In Beware, Migrating Spouses, Texas Lacks a Quasi-Community Property Probate Statute: It Could Be a Long Cold Winter, 3 Tex. Wesleyan L. Rev. 91 (1996), Mark Evans Harden and Barbara A. Lindsay-Smith discuss the lack of protection from total disinheritance that exists when spouses move to Texas from common law marital property jurisdictions.
  • Durable power of attorney. In Revoking Durable Powers of Attorney for Property_Protecting Clients from Themselves, 85 Ill. B.J. 555 (1997), Karen Johnson Guilde discusses various drafting techniques to prevent revocation of a durable power of attorney when the principal's competence is in doubt. In The Case of the Benevolent Fiduciary: A Primer for the Unwary, 2 Clinical L. Rev. 523 (1996), Suzanne J. Levitt illustrates the danger of a power of attorney in the wrong hands.
  • Future interest. Laura E. Cunningham examines The Hazards of Tinkering with the Common Law of Future Interests: The California Experience, 48 Hastings L.J. 667 (1997), and disputes the wisdom of changing the common law presumption in favor of vested remainders.
  • Malpractice. In Nightmare on Main Street: Estate Planning and the Probate Pitfalls, 85 Ill. B.J. 497 (1997), Anne E. Thar specifies common malpractice mistakes and how to avoid them.
  • Minors. Debra L. Stetter discusses the need to provide for the care, custody and financial support of minors in Planning for Life: Guidelines For When Children Are Involved, Tr. & Est. (Sept. 1997) at 57.
  • Nonmarital children. Karen A. Hauler focuses on Inheritance Rights for Extramarital Children: New Science Plus Old Intermediate Scrutiny Add Up to the Need for Change, 65 U. Cin. L. Rev. 891 (1997), examining recent advances in paternity testing and how these advances affect inheritance right discrimination against nonmarital children.
  • Right to refuse medical treatment. Christine H. Nooning reviews Surrogate Health Care Decision Making: The Pennsylvania Supreme Court Recognizes the Right of an Individual in a Permanent Vegetative State to Refuse Life-Sustaining Measures Through a Surrogate Decision Maker, 35 Duq. L. Rev. 849 (1997).
  • Taxpayer Relief Act. Jonathan G. Blatmachr and Howard M. Zaritsky examine Estate Planning After the Taxpayer Relief Act of 1997, 87 J. Tax'n 133 (1997). Bernard Barnett looks at Fiduciary Income Tax Planning After the "Taxpayer Relief Act," Tr. & Est. (Oct. 1997) at 56.
  • Trust termination. Eun C. Han, in Premature Judicial Termination of Non-Spendthrift Trust: Reconciling a Dead Settlor's Intent With a Living Beneficiary's Needs, 3 Tex. Wesleyan L. Rev. 191 (1996), discusses the un- reasonableness of court refusal to terminate a non-spendthrift trust if all beneficiaries agree and all trust purposes have been fulfilled.
  • California revises its law relating to the share of a surviving spouse and children omitted from pre-marriage or pre-birth/adoption wills. 1997 Cal. Legis. Serv. ch. 724.
  • New Jersey revises fees a qualified bank acting as a fiduciary may charge under certain circumstances. 1997 N.J. Sess. Law Serv. ch. 250.
Keeping Current_Probate Editor: Gerry W. Beyer, Professor, St. Mary's University School of Law, One Camino Santa Maria, San Antonio, TX 78228. Contributing editors: Dave L. Cornfeld, Vionette Douglas, William P. LaPiana and Kendra Lashawn McCartney.

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