Bankruptcy Proceedings for Insolvent Decedents\u27 Estates

Under present law, bankruptcy proceedings cannot be instituted by or against insolvent decedents\u27 estates. Creditors of insolvent decedents must look to state probate laws for satisfaction. But these laws are more concerned with the control of solvent estates than with the affairs of the impecunious. Also, transfers of wealth at death by nonprobate means are coming to be the rule rather than the exception, and it is frequently very difficult for creditors of decedents to obtain satisfaction of unsecured claims from nonprobate assets. This article advocates the extension of bankruptcy laws to insolvent decedents\u27 estates and explores problems and solutions that might be involved if this recommendation is accepted

The Joint and Survivor Account in Michigan-Progress Through Confusion

Legal writers have been intrigued for years by the challenge of classifying and identifying the resulting incidents of the joint and survivor bank deposit when an attempt is made to use it as a mode of effectuating a donor depositor\u27s intention to confer benefits on a donee co-depositor. Much in their discussions is useful to one who is concerned with the concept that has evolved in Michigan, where a 1909 statute states that some co-depositors are presumed to be joint tenants. Michigan judges and practitioners must determine, however, whether comment about national trends is applicable here, for in many respects the starting assumptions with which they have had to work seem different from those applicable elsewhere. The use in the Michigan statute of the joint tenancy concept, together with the state\u27s traditional resistance to enforcing contracts on behalf of third-party beneficiaries, has directed the dialogue in Michigan along lines of property rather than contract concepts. However, the statute, because it speaks of a present co-tenancy, is an awkward starting point when it is used to effectuate a purpose to make a transfer at death, a purpose that many depositors seek to implement through joint and survivor accounts

The Uniform Probate Code - Some Problems and Prospects

Based on remarks by Professor Wellman, Chief Reporter, Uniform Probabte Code, at a meeting sponsored by students of the School of Law, University of California, Davis, January, 1971. The probate field must be unique. At least, I cannot identify any area of law where the rules impact on the affairs of so many in such an unfortunate way. People want and should have assurance from the system that property they have not consumed by the time of their death will go to the natural objects of their bounty without question or inconvenience. Peace of mind about financial matters at death is an important part of life. The affluence of our life insurance industry tells us as much

Uniform Probate Code

Excerpts from remarks by Richard V. Wellman, Project Director, before Committee of the Whole, National Conference of Commissioners on Uniform State Laws in Honolulu, August 4, 1967 After more than five years of preliminary work, the reporters for the Uniform Probate Code Project are pleased to introduce a comprehensive draft of a complete . code dealing with estates of deceased and disabled persons and with transfers effective at death

A Possible Answer to Probate Avoidance

Excerpts from speech at annual meeting of the Indiana State Bar Associat But, succession, or probate as it\u27s more likely to be called, is currently quite controversial. This fact, though possibly useful to would-be speech makers, is unfortunate. There should not be any controversy about the rules protecting individual freedom in regard to personal savings. The fundamental principles; e.g., the premise of private property that a decedent\u27s unused savings should go as he indicates in his will, or to his heirs if he leaves no will, are not disputed or disputable. Nor can the troubles of the area be attributed to contentiousness of survivors and other claimants. Wills are rarely challenged, and the occasional challenges are usually unsuccessful. Creditors of decedents, protected in many situations by security or insurance, if not by survivors concerned about family credit ratings, are not a notable source of controversy. Indeed, the controversy arises from the charge that we have more rules than we need. ion, October 24, 1968. The subject I want to cliscuss this evening should not be a topic for post-banquet speech making. It concerns the law of succession to property at death. The topic should be as dull as the alphabet

Punitive Surcharges Against Disloyal Fiduciaries--Is \u3cem\u3eRothko\u3c/em\u3e Right?

This Article criticizes the award of a penalty surcharge in the name of appreciation damages. Contrary to the statements in the Rothko opinions, neither precedent nor treatises offers clear support for the shocking awards made against Rothko\u27s disloyal executors. Furthermore, even if appreciation damages were to be viewed, against the thesis here advanced, as an appropriate remedy for some kinds of fiduciary breach, the measure is inappropriate for cases which, like Rothko, involve hidden conflicts of interest. This is so because the threat of severe penalties in hidden-conflict cases adds unacceptable legal costs to honest administrations-costs that cannot be justified as a means of deterring undesirable conduct. Finally, Rothko illustrates how a court that surcharges a disloyal fiduciary for a sum exceeding amounts causally related to the breach or justified by the principle of restitution may unintentionally punish a merely negligent fiduciary. In sum, this Article urges that other courts repudiate Rothko: surcharges for disloyalty should not be governed by unique standards

Recent Developments in the Struggle for Probate Reform

The two Als being honored by this issue have honored me with years of precious friendship and many words a!!-d acts of support and encouragement. In return, they and their friends and others who may peruse these pages prepared as they near retirement really deserve better reading than can be expected of an article that wallows in the dreadful details of legislation dealing with probate procedure. Conard and Smith are old hands when it comes to efforts at improvement of law and legal institutions. They know better than to immerse themselves deeply in a piece like the one that follows, realizing that what is developed here will make sense, if at all, only to a relatively small audience of lawyers who will play some role in reshaping a legal institution that has been allowed to become an embarrassment to the nation\u27s legal community. Others less experienced may be forewarned. This Article describes some of the last decade\u27s moments of progress and defeat for a movement, now extended to more than thirty years, to improve probate law. The University of Michigan Law School and the Michigan Law Review, with which Alfred F. Conard and Allan F. Smith have had long and distinguished associations, have played large roles in this movement