Wills, Trusts & Estates


Wills, Trusts & Estates

Page 2 of 190

Walk by Faith; Serve with Abandon

✅Expect to Win!

Page 3 of 190

Page 4 of 190

The Advocacy Foundation, Inc.

Helping Individuals, Organizations & Communities

Achieve Their Full Potential

Since its founding in 2003, The Advocacy Foundation has become recognized as an effective

provider of support to those who receive our services, having real impact within the communities

we serve. We are currently engaged in community and faith-based collaborative initiatives,

having the overall objective of eradicating all forms of youth violence and correcting injustices

everywhere. In carrying-out these initiatives, we have adopted the evidence-based strategic

framework developed and implemented by the Office of Juvenile Justice & Delinquency

Prevention (OJJDP).

The stated objectives are:

1. Community Mobilization;

2. Social Intervention;

3. Provision of Opportunities;

4. Organizational Change and Development;

5. Suppression [of illegal activities].

Moreover, it is our most fundamental belief that in order to be effective, prevention and

intervention strategies must be Community Specific, Culturally Relevant, Evidence-Based, and

Collaborative. The Violence Prevention and Intervention programming we employ in

implementing this community-enhancing framework include the programs further described

throughout our publications, programs and special projects both domestically and



ISBN: ......... ../2017

......... Printed in the USA

Advocacy Foundation Publishers

Philadelphia, PA

(878) 222-0450 | Voice | Data | SMS

Page 5 of 190

Page 6 of 190



Every publication in our many series’ is dedicated to everyone, absolutely everyone, who by

virtue of their calling and by Divine inspiration, direction and guidance, is on the battlefield dayafter-day

striving to follow God’s will and purpose for their lives. And this is with particular affinity

for those Spiritual warriors who are being transformed into excellence through daily academic,

professional, familial, and other challenges.

We pray that you will bear in mind:

Matthew 19:26 (NLT)

Jesus looked at them intently and said, “Humanly speaking, it is impossible.

But with God everything is possible.” (Emphasis added)

To all of us who daily look past our circumstances, and naysayers, to what the Lord says we will



- The Advocacy Foundation, Inc.

Page 7 of 190

Page 8 of 190

The Transformative Justice Project

Eradicating Juvenile Delinquency Requires a Multi-Disciplinary Approach

The Juvenile Justice system is incredibly

overloaded, and Solutions-Based programs are

woefully underfunded. Our precious children,

therefore, particularly young people of color, often

get the “swift” version of justice whenever they

come into contact with the law.

Decisions to build prison facilities are often based

on elementary school test results, and our country

incarcerates more of its young than any other

nation on earth. So we at The Foundation labor to

pull our young people out of the “school to prison”

pipeline, and we then coordinate the efforts of the

legal, psychological, governmental and

educational professionals needed to bring an end

to delinquency.

We also educate families, police, local businesses,

elected officials, clergy, schools and other

stakeholders about transforming whole communities, and we labor to change their

thinking about the causes of delinquency with the goal of helping them embrace the

idea of restoration for the young people in our care who demonstrate repentance for

their mistakes.

The way we accomplish all this is a follows:

1. We vigorously advocate for charges reductions, wherever possible, in the

adjudicatory (court) process, with the ultimate goal of expungement or pardon, in

order to maximize the chances for our clients to graduate high school and

progress into college, military service or the workforce without the stigma of a

criminal record;

2. We then endeavor to enroll each young person into an Evidence-Based, Data-

Driven Transformative Justice program designed to facilitate their rehabilitation

and subsequent reintegration back into the community;

3. While those projects are operating, we conduct a wide variety of ComeUnity-

ReEngineering seminars and workshops on topics ranging from Juvenile Justice

to Parental Rights, to Domestic issues to Police friendly contacts, to Mental

Health intervention, to CBO and FBO accountability and compliance;

Page 9 of 190

4. Throughout the process, we encourage and maintain frequent personal contact

between all parties;

5 Throughout the process we conduct a continuum of events and fundraisers

designed to facilitate collaboration among professionals and community

stakeholders; and finally

6. 1 We disseminate Monthly and Quarterly publications, like our e-Advocate series

Newsletter and our e-Advocate Monthly and Quarterly Electronic Compilations to

all regular donors in order to facilitate a lifelong learning process on the everevolving

developments in both the Adult and Juvenile Justice systems.

And in addition to the help we provide for our young clients and their families, we also

facilitate Community Engagement through the Transformative Justice process,

thereby balancing the interests of local businesses, schools, clergy, social

organizations, elected officials, law enforcement entities, and other interested

stakeholders. Through these efforts, relationships are built, rebuilt and strengthened,

local businesses and communities are enhanced & protected from victimization, young

careers are developed, and our precious young people are kept out of the prison


Additionally, we develop Transformative “Void Resistance” (TVR) initiatives to elevate

concerns of our successes resulting in economic hardship for those employed by the

penal system.

TVR is an innovative-comprehensive process that works in conjunction with our

Transformative Justice initiatives to transition the original use and purpose of current

systems into positive social impact operations, which systematically retrains current

staff, renovates facilities, creates new employment opportunities, increases salaries and

is data-proven to enhance employee’s mental wellbeing and overall quality of life – an

exponential Transformative Social Impact benefit for ALL community stakeholders.

This is a massive undertaking, and we need all the help and financial support you can

give! We plan to help 75 young persons per quarter-year (aggregating to a total of 250

per year) in each jurisdiction we serve) at an average cost of under $2,500 per client,

per year. *

Thank you in advance for your support!

* FYI:

1 In addition to supporting our world-class programming and support services, all regular donors receive our Quarterly e-Newsletter

(The e-Advocate), as well as The e-Advocate Quarterly Magazine.

Page 10 of 190

1. The national average cost to taxpayers for minimum-security youth incarceration,

is around $43,000.00 per child, per year.

2. The average annual cost to taxpayers for maximum-security youth incarceration

is well over $148,000.00 per child, per year.

- (US News and World Report, December 9, 2014);

3. In every jurisdiction in the nation, the Plea Bargaining rate is above 99%.

The Judicial system engages in a tri-partite balancing task in every single one of these

matters, seeking to balance Rehabilitative Justice with Community Protection and

Judicial Economy, and, although the practitioners work very hard to achieve positive

outcomes, the scales are nowhere near balanced where people of color are involved.

We must reverse this trend, which is right now working very much against the best

interests of our young.

Our young people do not belong behind bars.

- Jack Johnson

Page 11 of 190

Page 12 of 190

The Advocacy Foundation, Inc.

Helping Individuals, Organizations & Communities

Achieve Their Full Potential

…a compendium of works on

Wills, Trusts & Estates

“Turning the Improbable Into the Exceptional”




John C Johnson III

Founder & CEO

(878) 222-0450

Voice | Data | SMS


Page 13 of 190

Page 14 of 190

Biblical Authority



Proverbs 13:22 (NIV)


A good person leaves an inheritance for their children’s children,

but a sinner’s wealth is stored up for the righteous.

Proverbs 20:21


An inheritance claimed too soon will not be blessed at the end.

Romans 8:17


Now if we are children, then we are heirs—heirs of God and co-heirs with Christ, if

indeed we share in his sufferings in order that we may also share in his glory.

Revelation 21:7


Those who are victorious will inherit all this, and I will be their God and they will be my




Genesis 48 (NIV)

Manasseh and Ephraim

Some time later Joseph was told, “Your father is ill.” So he took his two sons Manasseh

and Ephraim along with him. 2 When Jacob was told, “Your son Joseph has come to

you,” Israel rallied his strength and sat up on the bed.


Jacob said to Joseph, “God Almighty [a] appeared to me at Luz in the land of Canaan,

and there he blessed me 4 and said to me, ‘I am going to make you fruitful and increase

your numbers. I will make you a community of peoples, and I will give this land as an

everlasting possession to your descendants after you.’


“Now then, your two sons born to you in Egypt before I came to you here will be

reckoned as mine; Ephraim and Manasseh will be mine, just as Reuben and Simeon

are mine. 6 Any children born to you after them will be yours; in the territory they inherit

they will be reckoned under the names of their brothers. 7 As I was returning from

Paddan, [b] to my sorrow Rachel died in the land of Canaan while we were still on the

Page 15 of 190

way, a little distance from Ephrath. So I buried her there beside the road to Ephrath”

(that is, Bethlehem).


When Israel saw the sons of Joseph, he asked, “Who are these?”


“They are the sons God has given me here,” Joseph said to his father.

Then Israel said, “Bring them to me so I may bless them.”


Now Israel’s eyes were failing because of old age, and he could hardly see. So

Joseph brought his sons close to him, and his father kissed them and embraced them.


Israel said to Joseph, “I never expected to see your face again, and now God has

allowed me to see your children too.”


Then Joseph removed them from Israel’s knees and bowed down with his face to the

ground. 13 And Joseph took both of them, Ephraim on his right toward Israel’s left hand

and Manasseh on his left toward Israel’s right hand, and brought them close to him.


But Israel reached out his right hand and put it on Ephraim’s head, though he was the

younger, and crossing his arms, he put his left hand on Manasseh’s head, even though

Manasseh was the firstborn.


Then he blessed Joseph and said,

“May the God before whom my fathers

Abraham and Isaac walked faithfully,

the God who has been my shepherd

all my life to this day,


the Angel who has delivered me from all harm

—may he bless these boys.

May they be called by my name

and the names of my fathers Abraham and Isaac,

and may they increase greatly

on the earth.”


When Joseph saw his father placing his right hand on Ephraim’s head he was

displeased; so he took hold of his father’s hand to move it from Ephraim’s head to

Manasseh’s head. 18 Joseph said to him, “No, my father, this one is the firstborn; put

your right hand on his head.”


But his father refused and said, “I know, my son, I know. He too will become a people,

and he too will become great. Nevertheless, his younger brother will be greater than he,

and his descendants will become a group of nations.” 20 He blessed them that day and


“In your name will Israel pronounce this blessing:

‘May God make you like Ephraim and Manasseh.’”

Page 16 of 190

So he put Ephraim ahead of Manasseh.


Then Israel said to Joseph, “I am about to die, but God will be with you [d] and take

you [e] back to the land of your [f] fathers. 22 And to you I give one more ridge of land [g]

than to your brothers, the ridge I took from the Amorites with my sword and my bow.”

2 Chronicles 21:3


Their father had given them many gifts of silver and gold and articles of value, as well

as fortified cities in Judah, but he had given the kingdom to Jehoram because he was

his firstborn son.

Job 42:15


Nowhere in all the land were there found women as beautiful as Job’s daughters, and

their father granted them an inheritance along with their brothers.

Hebrews 9:16-17


In the case of a will, [a] it is necessary to prove the death of the one who made it,


because a will is in force only when somebody has died; it never takes effect while the

one who made it is living.

Page 17 of 190

Page 18 of 190

Table of Contents

…a compilation of works on

Wills, Trusts & Estates

Biblical Authority

I. Introduction: Inheritance…………………………………………… 21

II. Wills…………………………………………………………………... 39

III. Trusts…………………………………………………………………. 51

IV. Estates……………………………………………………………….. 73

V. Estate Planning………………………….. ………………………… 75

VI. Probate…………….…………………………………………………. 81

VII. References…………………………………………………….......... 93



A. A Citizen’s Guide to Wills, Trusts and Estates

B. Trusts: Common Law and IRC 501(c)(3) and 4947

C. The Basics of Estate Planning

Copyright © 2003 – 2019 The Advocacy Foundation, Inc. All Rights Reserved.

Page 19 of 190

This work is not meant to be a piece of original academic

analysis, but rather draws very heavily on the work of

scholars in a diverse range of fields. All material drawn upon

is referenced appropriately.

Page 20 of 190

I. Introduction


Inheritance is the practice of passing on property, titles, debts, rights, and obligations

upon the death of an individual. The rules of inheritance differ among societies and

have changed over time.


In law, an heir is a person who is entitled to receive a share of the deceased's (the

person who died) property, subject to the rules of inheritance in the jurisdiction of which

the deceased was a citizen or where the deceased (decedent) died or owned property

at the time of death.

The inheritance may be either under the terms of a will or by intestate laws if the

deceased had no will. However, the will must comply with the laws of the jurisdiction at

the time it was created or it will be declared invalid (for example, some states do not

recognize holographic wills as valid, or only in specific circumstances) and the intestate

laws then apply.

A person does not become an heir before the death of the deceased, since the exact

identity of the persons entitled to inherit is determined only then. Members of ruling

noble or royal houses who are expected to become heirs are called heirs apparent if

first in line and incapable of being displaced from inheriting by another claim; otherwise,

they are heirs presumptive. There is a further concept of joint inheritance, pending

renunciation by all but one, which is called co-parceny.

Page 21 of 190

In modern law, the terms inheritance and heir refer exclusively to succession to property

by descent from a deceased dying intestate. Takers in property succeeded to under a

will are termed generally beneficiaries, and specifically devisees for real property,

bequestees for personal property (except money), or legatees for money.

Except in some jurisdictions where a person cannot be legally disinherited (such as the

United States state of Louisiana, which allows disinheritance only under specifically

enumerated circumstances), a person who would be an heir under intestate laws may

be disinherited completely under the terms of a will (an example is that of the will of

comedian Jerry Lewis; his will specifically disinherited his six children by his first wife,

and their descendants, leaving his entire estate to his second wife).


Detailed anthropological and sociological studies have been made about customs of

patrilineal inheritance, where only male children can inherit. Some cultures also employ

matrilineal succession, where property can only pass along the female line, most

commonly going to the sister's sons of the decedent; but also, in some societies, from

the mother to her daughters. Some ancient societies and most modern states employ

egalitarian inheritance, without discrimination based on gender and/or birth order.

Jewish Laws

The inheritance is patrilineal. The father —that is, the owner of the land— bequeaths

only to his male descendants, so the Promised Land passes from one Jewish father to

his sons.

If there were no living sons and no descendants of any previously living sons, daughters

inherit. In Numbers 27:1-4, the daughters of Zelophehad (Mahlah, Noa, Hoglah, Milcah,

and Tirzah) of the tribe of Manasseh come to Moses and ask for their father's

inheritance, as they have no brothers. The order of inheritance is set out in Numbers

27:7-11: a man's sons inherit first, daughters if no sons, brothers if he has no children,

and so on.

Later, in Numbers 36, some of the heads of the families of the tribe of Manasseh come

to Moses and point out that, if a daughter inherits and then marries a man not from her

paternal tribe, her land will pass from her birth-tribe's inheritance into her marriagetribe's.

So a further rule is laid down: if a daughter inherits land, she must marry

someone within her father's tribe. (The daughters of Zelophehad marry the sons' of their

father's brothers. There is no indication that this was not their choice.)

The tractate Baba Bathra, written during late Antiquity in Babylon, deals extensively with

issues of property ownership and inheritance according to Jewish Law. Other works of

Rabbinical Law, such as the Hilkhot naḥalot : mi-sefer Mishneh Torah leha-Rambam,

and the Sefer ha-yerushot: ʻim yeter ha-mikhtavim be-divre ha-halakhah be-ʻAravit uve-

Page 22 of 190

ʻIvrit uve-Aramit also deal with inheritance issues. The first, often abbreviated to

Mishneh Torah, was written by Maimonides and was very important in Jewish tradition.

All these sources agree that the firstborn son is entitled to a double portion of his

father's estate: Deuteronomy 21:17.

This means that, for example, if a father left five sons, the firstborn receives a third of

the estate and each of the other four receives a sixth. If he left nine sons, the firstborn

receives a fifth and each of the other eight receive a tenth. If the eldest surviving son is

not the firstborn son, he is not entitled to the double portion.

Philo of Alexandria and Josephus also comment on the Jewish laws of inheritance,

praising them above other law codes of their time. They also agreed that the firstborn

son must receive a double portion of his father's estate.

Christian Laws

The New Testament does not specifically mention anything about inheritance rights: the

only story even mentioning inheritance is that of the Prodigal Son, but that involved the

father voluntarily passing his estate to his two sons prior to his death; the younger son

receiving his inheritance (1/3; the older son would have received 2/3 under then existing

Jewish law) and squandering it.

The topic is generally not discussed among doctrinal statements of various

denominations or sects, leaving that to be a matter of secular concern.

Page 23 of 190

Islamic laws

The Quran introduced a number of different rights and restrictions on matters of

inheritance, including general improvements to the treatment of women and family life

compared to the pre-Islamic societies that existed in the Arabian Peninsula at the time.

Furthermore, the Quran introduced additional heirs that were not entitled to inheritance

in pre-Islamic times, mentioning nine relatives specifically of which six were female and

three were male. However, the inheritance rights of women remained inferior to those of

men because in Islam someone always has a responsibility of looking after a woman's

expenses. According to the Quran, for example, a son is entitled to twice as much

inheritance as a daughter. [Quran 4:11] The Quran also presented efforts to fix the laws of

inheritance, and thus forming a complete legal system. This development was in

contrast to pre-Islamic societies where rules of inheritance varied considerably. In

addition to the above changes, the Quran imposed restrictions on testamentary powers

of a Muslim in disposing his or her property. The Quran contains only three verses that

give specific details of inheritance and shares, in addition to few other verses dealing

with testamentary. But this information was used as a starting point by Muslim jurists

who expounded the laws of inheritance even further using Hadith, as well as methods of

juristic reasoning like Qiyas. Nowadays, inheritance is considered an integral part of

Sharia law and its application for Muslims is mandatory, though many peoples (see

Historical inheritance systems), despite being Muslim, have other inheritance customs.


Inheritance by amount and distribution received and action taken with inheritances in

Great Britain between 2008 and 2010

The distribution of the inherited wealth has varied greatly among different cultures and

legal traditions. In nations using civil law, for example, the right of children to inherit

wealth from parents in pre-defined ratios is enshrined in law, as far back as the Code of

Hammurabi (ca. 1750 BC). In the US State of Louisiana, the only US state to use

Napoleonic Code for state law, this system is known as "forced heirship" which prohibits

disinheritance of adult children except for a few narrowly-defined reasons that a parent

is obligated to prove. Other legal traditions, particularly in nations using common law,

allow inheritances to be divided however one wishes, or to disinherit any child for any


In cases of unequal inheritance, the majority might receive little while only a small

number inherit a larger amount, with the lesser amount given to the daughter in the

family. The amount of inheritance is often far less than the value of a business initially

given to the son, especially when a son takes over a thriving multimillion-dollar

business, yet the daughter is given the balance of the actual inheritance amounting to

far less than the value of business that was initially given to the son. This is especially

seen in old world cultures, but continues in many families to this day.

Page 24 of 190

Arguments for eliminating the disparagement of inheritance inequality include the right

to property and the merit of individual allocation of capital over government wealth

confiscation and redistribution, but this does not resolve what some describe as the

problem of unequal inheritance. In terms of inheritance inequality, some economists and

sociologists focus on the inter generational transmission of income or wealth which is

said to have a direct impact on one's mobility (or immobility) and class position in

society. Nations differ on the political structure and policy options that govern the

transfer of wealth.

According to the American federal government statistics compiled by Mark Zandi in

1985, the average US inheritance was $39,000. In subsequent years, the overall

amount of total annual inheritance more than doubled, reaching nearly $200 billion. By

2050, there will be an estimated $25 trillion inheritance transmitted across generations.

Some researchers have attributed this rise to the baby boomer generation. Historically,

the baby boomers were the largest influx of children conceived after WW2. For this

reason, Thomas Shapiro suggests that this generation "is in the midst of benefiting from

the greatest inheritance of wealth in history." Inherited wealth may help explain why

many Americans who have become rich may have had a "substantial head start". In

September 2012, according to the Institute for Policy Studies, "over 60 percent" of the

Forbes richest 400 Americans "grew up in substantial privilege", and often (but not

always) received substantial inheritances. The French economist Thomas Piketty

studied this phenomenon in his best-selling book Capital in the Twenty-First Century,

published in 2013.

Page 25 of 190

Other research has shown that many inheritances, large or small, are rapidly

squandered. Similarly, analysis shows that over two-thirds of high-wealth families lose

their wealth within two generations, and almost 80% of high-wealth parents "feel the

next generation is not financially responsible enough to handle inheritance."

Social Stratification

It has been argued that inheritance plays a significant effect on social stratification.

Inheritance is an integral component of family, economic, and legal institutions, and a

basic mechanism of class stratification. It also affects the distribution of wealth at the

societal level. The total cumulative effect of inheritance on stratification outcomes takes

three forms, according to scholars who have examined the subject.

The first form of inheritance is the inheritance of cultural capital (i.e. linguistic styles,

higher status social circles, and aesthetic preferences). The second form of inheritance

is through familial interventions in the form of inter vivos transfers (i.e. gifts between the

living), especially at crucial junctures in the life courses. Examples include during a

child's milestone stages, such as going to college, getting married, getting a job, and

purchasing a home. The third form of inheritance is the transfers of bulk estates at the

time of death of the testators, thus resulting in significant economic advantage accruing

to children during their adult years. The origin of the stability of inequalities is material

(personal possessions one is able to obtain) and is also cultural, rooted either in varying

child-rearing practices that are geared to socialization according to social class and

economic position. Child-rearing practices among those who inherit wealth may center

around favoring some groups at the expense of others at the bottom of the social


Sociological and Economic Effects of Inheritance Inequality

It is further argued that the degree to which economic status and inheritance is

transmitted across generations determines one's life chances in society. Although many

have linked one's social origins and educational attainment to life chances and

opportunities, education cannot serve as the most influential predictor of economic

mobility. In fact, children of well-off parents generally receive better schooling and

benefit from material, cultural, and genetic inheritances. Likewise, schooling attainment

is often persistent across generations and families with higher amounts of inheritance

are able to acquire and transmit higher amounts of human capital. Lower amounts of

human capital and inheritance can perpetuate inequality in the housing market and

higher education. Research reveals that inheritance plays an important role in the

accumulation of housing wealth. Those who receive an inheritance are more likely to

own a home than those who do not regardless of the size of the inheritance.

Often, racial or religious minorities and individuals from socially disadvantaged

backgrounds receive less inheritance and wealth. As a result, mixed races might be

excluded in inheritance privilege and are more likely to rent homes or live in poorer

Page 26 of 190

neighborhoods, as well as achieve lower educational attainment compared with whites

in America. Individuals with a substantial amount of wealth and inheritance often

intermarry with others of the same social class to protect their wealth and ensure the

continuous transmission of inheritance across generations; thus perpetuating a cycle of


Nations with the highest income and wealth inequalities often have the highest rates of

homicide and disease (such as obesity, diabetes, and hypertension). A The New York

Times article reveals that the U.S. is the world's wealthiest nation, but "ranks twentyninth

in life expectancy, right behind Jordan and Bosnia." This has been regarded as

highly attributed to the significant gap of inheritance inequality in the country, although

there are clearly other factors such as the affordability of healthcare.

When social and economic inequalities centered on inheritance are perpetuated by

major social institutions such as family, education, religion, etc., these differing life

opportunities are argued to be transmitted from each generation. As a result, this

inequality is believed to become part of the overall social structure.

Dynastic Wealth

Dynastic wealth is monetary inheritance that is passed on to generations that didn't earn

it. Dynastic wealth is linked to the term Plutocracy. Much has been written about the rise

Page 27 of 190

and influence of dynastic wealth including the bestselling book Capital in the Twenty-

First Century by the French economist Thomas Piketty.

Bill Gates uses the term in his article "Why Inequality Matters".


Many states have inheritance taxes or death duties, under which a portion of any estate

goes to the government.


Inheritance Tax

An inheritance or estate tax is a tax paid by a person who inherits money or property

or a levy on the estate (money and property) of a person who has died.

International tax law distinguishes between an estate tax and an inheritance tax—an

estate tax is assessed on the assets of the deceased, while an inheritance tax is

assessed on the legacies received by the estate's beneficiaries. However, this

distinction is not always observed; for example, the UK's "inheritance tax" is a tax on the

assets of the deceased, and strictly speaking is therefore an estate tax.

For historical reasons, the term death duty is still used colloquially (though not legally)

in the UK and some Commonwealth countries.

Varieties of Inheritance and Estate Taxes

Belgium, droits de succession or successierechten (Inheritance tax).

Collected at the federal level but distributed to the regional level.

Bermuda: stamp duty

Brazil: Imposto sobre Transmissão "Causa Mortis" e Doação de Quaisquer

Bens ou Direitos (Tax on Causa Mortis Transmission and as Donation of any

Property and Rights). Collected at the state level. The Brazilian Senate limited

the maximum rate to 8%,.

Czech Republic: daň dědická (Inheritance tax)

Denmark: Boafgift (estate duty). Collected at state level. Different rates

depending on the relation to the deceased. Spouse: 0%. Children: 15%. Other

relatives: 15% of the estate sum + additional 25% of the individual sum. The

estate duty is calculated on the sum of the estate after deducting a free

allowance on the estate (289,000 DKK in 2018).

Page 28 of 190

Finland: perintövero (Finnish) or arvsskatt (Swedish) (Inheritance tax) is a state

tax. Inheritance to the close family is tax free up to the worth of 20 000 €, and

increasing from there via several steps (for instance, being 13% for 60 000 € -

200 000 €) to the maximum of 19% that must be paid for the portion of the

inheritance that exceeds one million euros. Taxation is more severe in case of

remote relatives or those with no family connection at all (19-33%).

France: droits de succession (Inheritance tax)

Germany: Erbschaftsteuer (Inheritance tax). Smaller bequests are exempt, i.e.,

€20,000–€500,000 depending on the family relation between the deceased and

the beneficiary. Bequests larger than these values are taxed from 7% to 50%,

depending on the family relationship between the deceased and the beneficiary

and the size of the taxable amount

Ghana: Inheritance tax on intangible assets

Ireland: Inheritance tax (Cáin Oidhreachta)

Italy: tassa di successione (Inheritance tax). Abolished in 2001 and

reestablished in 2006. €1,000,000 exemption on a bequest to a spouse or child,

and a maximum rate of 8%.

Japan: souzokuzei 相 続 税 (Inheritance tax) paid as a national tax (between 10

and 55% after an exemption of ¥30 million + ¥6 million per heir is deducted from

the estate)

The Netherlands: Successierecht (Inheritance tax) NB. as per 1 January 2010

Successierecht has been abolished for the erfbelasting regime, and is replaced

Page 29 of 190

with Erfbelasting with rates from 10% to 40%. for brackets by amounts and


Switzerland has no national inheritance tax. Some cantons impose estate taxes

or inheritance taxes.

United Kingdom: see inheritance tax (United Kingdom) (actually an estate tax)

United States: see estate tax in the United States

Spain: Impuesto sobre Sucesiones (Inheritance Tax). The amendment of

Spanish law has been put into practice, in compliance with the European Court

ruling of September 3 of last year, and on December 31, 2014 Order

HAP/2488/2014, of December 29, was published in the Official State Bulletin,

which approve the Inheritance and Gift Tax self-assessment forms 650, 651 y,

and establishes the place, forma an term for its submission.

Some jurisdictions formerly had estate or inheritance taxes, but have abolished them:

Australia abolished the federal estate tax in 1979, but capital gains tax is levied

on the sale of an asset or its transfer of ownership and if this occurs upon the

death of the owner it constitutes a "crystalising action", and capital gains tax

becomes assessable.

Austria abolished the Erbschaftssteuer in 2008. This tax had some of the

features of the gift tax, which was abolished at the same time.

Canada: abolished inheritance tax in 1972. However, capital gains are 50%

taxable and added to all other income of the deceased on their final return.

Hong Kong: abolished estate duty in 2006 for all deaths occurring on or after 11

February 2006. (See Estate Duty Ordinance Cap.111)

India: had an estate tax from 1953 to 1985

Israel: abolished inheritance tax in 1981, but inherited assets are subject to a

20% to 45% capital gains tax upon their sale

Kenya: abolished estate duty tax by virtue of the Estate Duty (Abolition) Act No.

10 of 1982


New Zealand abolished estate duty in 1992

Norway: abolished inheritance tax in 2014

Page 30 of 190

Russia "abolished" "inheritance tax" in 2006, but have "fee" with rates of 0,3%

but no more than 100 000 rubles and 0,6% but no more than 1 000 000 rubles.

Singapore: abolished estate tax in 2008, for deaths occurring on or after 15

February 2008.

Sweden: abolished inheritance tax in 2005. A retroactive decision exempted

deaths during late December 2004 from inheritance tax, due to the many

Swedish casualties in the 2004 Indian Ocean earthquake.






Slovak Republic

Page 31 of 190



Some jurisdictions have never levied any form of tax in the event of death:

Cayman Islands



United Kingdom

Inheritance tax was introduced with effect from 18 March 1986.

History (Succession Duty)

Succession duty, in the English fiscal system, is "a tax placed on the gratuitous

acquisition of property which passes on the death of any person, by means of a transfer

from one person (called the predecessor) to another person (called the successor)". In

order properly to understand the present state of the English law it is necessary to

describe shortly the state of affairs prior to the Finance Act 1894 — an act which

effected a considerable change in the duties payable and in the mode of assessment of

those duties.

The Succession Duty Act 1853 was the principal act that first imposed a succession

duty in England. By that act a duty varying from 1% to 10% according to the degree of

consanguinity between the predecessor and successor was imposed upon every

succession which was defined as "every past or future disposition of property by reason

whereof any person has or shall become beneficially entitled to any property, or the

income thereof, upon the death of any person dying after the time appointed for the

commencement of this act, either immediately or after any interval, either certainly or

contingently, and either originally or by way of substitutive limitation and every

devolution by law of any beneficial interest in property, or the income thereof, upon the

death of any person dying after the time appointed for the commencement of this act to

any other person in possession or expectancy". The property which is liable to pay the

duty is in realty or leasehold estate in the UK and personalty—not subject to legacy

duty—which the beneficiary claims by virtue of English, Scottish, or Irish law. Personalty

in England bequeathed by a person domiciled abroad is not subject to succession duty.

Successions of a husband or a wife, successions where the principal value is under

£100, and individual successions under £20, are exempt from duty. Leasehold property

and personalty directed to be converted into real estate are liable to succession, not to

legacy duty.

Special provision is made for the collection of duty in the cases of joint tenants and

where the successor is also the predecessor. The duty is a first charge on property, but

Page 32 of 190

if the property be parted with before the duty is paid the liability of the successor is

transferred to the alienee. It is, therefore, usual in requisitions on title before

conveyance, to demand for the protection of the purchaser the production of receipts for

succession duty, as such receipts are an effectual protection notwithstanding any

suppression or misstatement in the account on the footing of which the duty was

assessed or any insufficiency of such assessment. The duty is by this act directed to be

assessed as follows: on personal property, if the successor takes a limited estate, the

duty is assessed on the principal value of the annuity or yearly income estimated

according to the period during which he is entitled to receive the annuity or yearly

income, and the duty is payable in four yearly installments free from interest. If the

successor takes absolutely he pays in a lump-sum duty on the principal value. On real

property the duty is payable in eight half-yearly installments without interest on the

capital value of an annuity equal to the annual value of the property. Various minor

changes were made. The Customs and Inland Revenue Act 1881 exempted personal

estates under 300. The Customs and Inland Revenue Act 1888 charged an additional

1% on successions already paying 1% and an additional 11% on successions paying

more than 1%. By the Customs and Inland Revenue Act 1889, an additional duty of 1%

called an "estate duty" was payable on successions over 10,000.

The Finance Acts 1894 and 1909 effected large changes in the duties payable on

death. As regards the succession duties they enacted that payment of the estate duties

thereby created should include payment of the additional duties mentioned above.

Estates under £1,000 (£2,000 in the case of widow or child of deceased) are exempted

from payment of any succession duties. The succession duty payable under the

Succession Duty Act 1853 was in all cases to be calculated according to the principal

value of the property, i.e., its selling value, and though still payable by installments

interest at 3% is chargeable. The additional succession duties are still payable in cases

Page 33 of 190

where the estate duty is not charged, but such cases are of small importance and in

practice are not as a rule charged.

United States

The United States imposed a succession duty by the War Revenue Act of 1898 on all

legacies or distributive shares of personal property exceeding $10,000. This was a tax

on the privilege of succession, and devises and land distributions of land were

unaffected. The duty ran from 75 cents on the $100 to $5 on the $100, if the legacy or

share in question did not exceed $25,000. On those over that value, the rate was

multiplied 11 times on estates up to $100,000, twofold on those from $100,000 to

$200,000, 21 times on those from $500,000 to a $1 million, and threefold for those

exceeding a million. This statute was upheld as constitutional by the U.S. Supreme


Many of the states also impose succession duties, or transfer taxes; generally, however,

on collateral and remote successions; sometimes progressive, according to the amount

of the succession. The state duties generally touch real estate successions as well as

those to personal property. If a citizen of state A owns registered bonds of a corporation

chartered by state B, which he has put for safe keeping in a deposit vault in state C, his

estate may thus have to pay four succession taxes, one to state A, to which he belongs

and which, by legal fiction, is the seat of all his personal property; one to state B, for

permitting the transfer of the bonds to the legatees on the books of the corporation; one

to state C, for allowing them to be removed from the deposit vault for that purpose; and

one to the United States.

The different U.S. states all have other regulations regarding inheritance tax:



Louisiana: abolished inheritance tax in 2008, for deaths occurring on or

after 1 July 2004

New Hampshire: abolished state inheritance tax in 2003; abolished

surcharge on federal estate tax in 2005

o Utah: abolished inheritance tax in 2005

Some U.S. states impose inheritance or estate taxes (see inheritance tax at the state


Indiana: abolished the state inheritance on December 31, 2012

Iowa: Inheritance is exempt if passed to a surviving spouse, parents, or

grandparents, or to children, grandchildren, or other "lineal" descendants. Other

recipients are subject to inheritance tax, with rates varying depending on the

relationship of the recipient to the deceased.

Page 34 of 190

Kentucky: The inheritance tax is a tax on a beneficiary's right to receive property

from a decedent's estate. It is imposed as a percentage of the amount

transferred to the beneficiary:


Transfers to "Class A" relatives (spouses, parents, children, grandchildren,

and siblings) are exempt



Transfers to "Class B" relatives (nieces, nephews, daughters-in-law, sonsin-law,

aunts, uncles, and great-grandchildren) are taxable

Transfers to "Class C" recipients (all other persons) are taxable at a higher

rate. Kentucky imposes an estate tax in addition to its inheritance tax.



New Jersey: New Jersey law puts inheritors into different groups, based on their

family relationship to the deceased person:


Class A beneficiaries are exempt from the inheritance tax. They includes

the deceased person’s spouse, domestic partner, or civil union partner

Page 35 of 190

parent, grandparent, child (biological, adopted, or mutually

acknowledged), stepchild (but not step-grandchild or great-stepgrandchild),

grandchild or other lineal descendant of a child





Class B was deleted when New Jersey law changed

Class C includes the deceased person’s: brother or sister, spouse or civil

union partner of the deceased person's child, surviving spouse or civil

union partner of the deceased person's child. The first $25,000 inherited

by someone in Class C is not taxed. On amounts exceeding $25,000, the

tax rates are: 11% on the next $1,075,000, 13% on the next $300,000,

14% on the next $300,000, and 16% for anything over $1,700,000

Class D includes everyone else. There is no special exemption amount,

and the applicable tax rates are: 15% on the first $700,000, and 16% on

anything over $700,000

Class E includes the State of New Jersey or any of its political

subdivisions for public or charitable purposes, an educational institution,

church, hospital, orphan asylum, public library, and other nonprofits.

These beneficiaries are exempt from inheritance tax.


Pennsylvania: Inheritance tax is a flat tax on the value of the decedent's taxable

estate as of the date of death, less allowable funeral and administrative

expenses and debts of the decedent. Pennsylvania does not allow the six-monthafter-date-of-death

alternate valuation method that is available at the federal

level. Transfers to spouses are exempt; transfers to grandparents, parents, or

lineal descendants are taxed at 4.5%. Transfers to siblings are taxed at 12%.

Transfers to any other persons are taxed at 15%. Some assets are exempted,

including life insurance proceeds. The inheritance tax is imposed on both

residents and nonresidents who owned real estate and tangible personal

property in Pennsylvania at the time of their death. The Pennsylvania Inheritance

Tax Return (Form Rev-1500) must be filed within nine months of the date of



Other Taxation Applied to Inheritance

In some jurisdictions, when assets are transferred by inheritance, any unrealized

increase in asset value is subject to capital gains tax, payable immediately. This is the

case in Canada, which has no inheritance tax.

Page 36 of 190

When a jurisdiction has both capital gains tax and inheritance tax, inheritances are

generally exempt from capital gains tax.

In some jurisdictions, like Austria, death gives rise to the local equivalent of gift tax.

This was the UK model before the Inheritance Tax in 1986 was introduced, when

estates were charged to a form of gift tax called Capital Transfer Tax. Where a

jurisdiction has both gift tax and inheritance tax, it is usual to exempt inheritances from

gift tax. Also, it is common for inheritance taxes to share some features of gift taxes, by

taxing some transfers which happen during the lifetime of the giver rather than on death.

The UK, for example, subjects "lifetime chargeable transfers" (usually gifts to trusts) to

inheritance tax.


Ancient Rome

No inheritance tax was

recorded for the Roman

Republic, despite abundant

evidence for testamentary

law. The vicesima

hereditatium ("twentieth of

inheritance") was levied by

Rome's first emperor,

Augustus, in the last decade

of his reign. The 5% tax

applied only to inheritances

received through a will, and

close relatives were exempt

from paying it, including the

deceased's grandparents,



grandchildren, and siblings.

The question of whether a

spouse was exempt was complicated—from the late Republic on, husbands and wives

kept their own property scrupulously separate, since a Roman woman remained part of

her birth family and not under the legal control of her husband. Roman social values on

marital devotion probably exempted a spouse. Estates below a certain value were also

exempt from the tax, according to one source, but other evidence indicates that this was

only the case in the early years of Trajan's reign.

Tax revenues went into a fund to pay military retirement benefits (aerarium militare),

along with those from a new sales tax (centesima rerum venalium), a 1 tax% on goods

sold at auction. The inheritance tax is extensively documented in sources pertaining to

Roman law, inscriptions, and papyri. It was one of three major indirect taxes levied on

Roman citizens in the provinces of the Empire.

Page 37 of 190

Page 38 of 190

II. Wills

A Will or Testament is a legal document by which a person, the testator, expresses

their wishes as to how their property is to be distributed at death, and names one or

more persons, the executor, to manage the estate until its final distribution. For the

devolution of property not disposed of by will, see inheritance and intestacy.

Though it has at times been thought that a "will" was historically limited to real property

while "testament" applies only to dispositions of personal property (thus giving rise to

the popular title of the document as "Last Will and Testament"), the historical records

show that the terms have been used interchangeably. Thus, the word "will" validly

applies to both personal and real property.

A will may also create a testamentary trust that is effective only after the death of the



Throughout most of the world, disposal of an estate has been a matter of social custom.

According to Plutarch, the written will was invented by Solon. Originally, it was a device

intended solely for men who died without an heir.

The English phrase "will and testament" is derived from a period in English law when

Old English and Law French were used side by side for maximum clarity. Other such

legal doublets include "breaking and entering" and "peace and quiet".

Page 39 of 190

Freedom of Disposition

The conception of the freedom of disposition by will, familiar as it is in modern England

and the United States, both generally considered common law systems, is by no means

universal. In fact, complete freedom is the exception rather than the rule. Civil law

systems often put some restrictions on the possibilities of disposal; see for example

"Forced heirship".

Advocates for gays and lesbians have pointed to the inheritance rights of spouses as

desirable for same-sex couples as well, through same-sex marriage or civil unions.

Opponents of such advocacy rebut this claim by pointing to the ability of same-sex

couples to disperse their assets by will. Historically, however, it was observed that

"[e]ven if a same-sex partner executes a will, there is risk that the survivor will face

prejudice in court when disgruntled heirs challenge the will", with courts being more

willing to strike down wills leaving property to a same-sex partner on such grounds as

incapacity or undue influence.

Types of Wills

Types of wills generally include:

Nuncupative (Non-Culpatory) - oral or dictated; often limited to sailors or military


Holographic Will - written in the hand of the testator; in many jurisdictions, the

signature and the material terms of the holographic will must be in the

handwriting of the testator.

Self-Proved - in solemn form with affidavits of subscribing witnesses to avoid


Notarial - will in public form and prepared by a civil-law notary (civil-law

jurisdictions and Louisiana, United States).

Mystic - sealed until death.

Serviceman's Will - will of person in active-duty military service and usually

lacking certain formalities, particularly under English law.

Reciprocal/Mirror/Mutual/Husband And Wife Wills - wills made by two or more

parties (typically spouses) that make similar or identical provisions in favor of

each other.

Unsolemn Will - will in which the executor is unnamed.

Will In Solemn Form - signed by testator and witnesses.

Page 40 of 190

Some jurisdictions recognize a holographic will, made out entirely in the testator's own

hand, or in some modern formulations, with material provisions in the testator's hand.

The distinctive feature of a holographic will is less that it is handwritten by the testator,

and often that it need not be witnessed. In Louisiana this type of testament is called an

Olographic or Mystic will. It must be entirely written, dated, and signed in the

handwriting of the testator. Although the date may appear anywhere in the testament,

the testator must sign the testament at the end of the testament. Any additions or

corrections must also be entirely hand written to have effect. In England, the formalities

of wills are relaxed for soldiers who express their wishes on active service; any such will

is known as a serviceman's will. A minority of jurisdictions even recognize the validity of

nuncupative wills (oral wills), particularly for military personnel or merchant sailors.

However, there are often constraints on the disposition of property if such an oral will is



Administrator - person appointed or who petitions to administer an estate in an

intestate succession. The antiquated English term of administratrix was used to

refer to a female administrator but is generally no longer in standard legal usage.

Beneficiary - anyone receiving a gift or benefiting from a trust

Bequest - testamentary gift of personal property, traditionally other than money.

Page 41 of 190

Codicil - (1) amendment to a will; (2) a will that modifies or partially revokes an

existing or earlier will.

Decedent - the deceased (U.S. term)

Demonstrative Legacy - a gift of a specific sum of money with a direction that is

to be paid out of a particular fund.

Descent - succession to real property.

Devise - testamentary gift of real property.

Devisee - beneficiary of real property under a will.

Distribution - succession to personal property.

Executor/executrix or personal representative [PR] - person named to

administer the estate, generally subject to the supervision of the probate court, in

accordance with the testator's wishes in the will. In most cases, the testator will

nominate an executor/PR in the will unless that person is unable or unwilling to

serve. In some cases a literary executor may be appointed to manage a literary


Exordium clause is the first paragraph or sentence in a will and testament, in

which the testator identifies himself or herself, states a legal domicile, and

revokes any prior wills.

Inheritor - a beneficiary in a succession, testate or intestate.

Intestate - person who has not created a will, or who does not have a valid will at

the time of death.

Legacy - testamentary gift of personal property, traditionally of money. Note:

historically, a legacy has referred to either a gift of real property or personal


Legatee - beneficiary of personal property under a will, i.e., a person receiving a


Probate - legal process of settling the estate of a deceased person.

Specific legacy (or specific bequest) - a testamentary gift of a precisely

identifiable object.

Testate - person who dies having created a will before death.

Page 42 of 190

Testator - person who executes or signs a will; that is, the person whose will it is.

The antiquated English term of Testatrix was used to refer to a female.

Trustee - a person who has the duty under a will trust to ensure that the rights of

the beneficiaries are upheld.

Requirements for Creation

Any person over the age of majority and having "testamentary capacity" (i.e., generally,

being of sound mind) can make a will, with or without the aid of a lawyer. Additional

requirements may vary, depending on the jurisdiction, but generally include the

following requirements:

The testator must clearly identify themselves as the maker of the will, and that a

will is being made; this is commonly called "publication" of the will, and is

typically satisfied by the words "last will and testament" on the face of the


The testator should declare that he or she revokes all previous wills and codicils.

Otherwise, a subsequent will revokes earlier wills and codicils only to the extent

to which they are inconsistent. However, if a subsequent will is completely

inconsistent with an earlier one, the earlier will is considered completely revoked

by implication.

Page 43 of 190

The testator may demonstrate that he or she has the capacity to dispose of their

property ("sound mind"), and does so freely and willingly.

The testator must sign and date the will, usually in the presence of at least two

disinterested witnesses (persons who are not beneficiaries). There may be extra

witnesses, these are called "supernumerary" witnesses, if there is a question as

to an interested-party conflict. Some jurisdictions, notably Pennsylvania, have

long abolished any requirement for witnesses. In the United States, Louisiana

requires both attestation by two witnesses as well as notarization by a notary

public. Holographic wills generally require no witnesses to be valid, but

depending on the jurisdiction may need to be proved later as to the authenticity

of the testator's signature.

If witnesses are designated to receive property under the will they are witnesses

to, this has the effect, in many jurisdictions, of either (i) disallowing them to

receive under the will, or (ii) invalidating their status as a witness. In a growing

number of states in the United States, however, an interested party is only an

improper witness as to the clauses that benefit him or her (for instance, in


The testator's signature must be placed at the end of the will. If this is not

observed, any text following the signature will be ignored, or the entire will may

be invalidated if what comes after the signature is so material that ignoring it

would defeat the testator's intentions.

One or more beneficiaries (devisees, legatees) must generally be clearly stated

in the text, but some jurisdictions allow a valid will that merely revokes a previous

will, revokes a disposition in a previous will, or names an executor.

There is no legal requirement that a will be drawn up by a lawyer, although there are

pitfalls into which home-made wills can fall. The person who makes a will is not

available to explain him or herself, or to correct any technical deficiency or error in

expression, when it comes into effect on that person's death, and so there is little room

for mistake. A common error, for example, in the execution of home-made wills in

England is to use a beneficiary (typically a spouse or other close family members) as a

witness—which may have the effect in law of disinheriting the witness regardless of the

provisions of the will.

A will may not include a requirement that an heir commit an illegal, immoral, or other act

against public policy as a condition of receipt.

In community property jurisdictions, a will cannot be used to disinherit a surviving

spouse, who is entitled to at least a portion of the testator's estate. In the United States,

children may be disinherited by a parent's will, except in Louisiana, where a minimum

share is guaranteed to surviving children except in specifically enumerated

circumstances. Many civil law countries follow a similar rule. In England and Wales from

Page 44 of 190

1933 to 1975, a will could disinherit a spouse; however, since the Inheritance (Provision

for Family and Dependants) Act 1975 such an attempt can be defeated by a court order

if it leaves the surviving spouse (or other entitled dependent) without "reasonable

financial provision".

International Wills

In 1973 an international convention, the Convention providing a Uniform Law on the

Form of an International Will, was concluded in the context of UNIDROIT. The

Convention provided for a universally recognised code of rules under which a will made

anywhere, by any person of any nationality, would be valid and enforceable in every

country which became a party to the Convention. These are known as "international

wills". Belgium, Bosnia-Herzegovina, Canada (for 9 provinces, not Quebec), Cyprus,

Ecuador, France, Italy, Libya, Niger, Portugal Slovenia, The Holy See, Iran, Laos, the

Page 45 of 190

Russian Federation, Sierra Leone, the United Kingdom, and the United States have

signed but not ratified. International wills are only valid where the convention applies.

Although the US has not ratified on behalf of any state, the Uniform law has been

enacted in 23 states and the District of Columbia.

For individuals who own assets in multiple countries and at least one of those countries

are not a part of the Convention, it may be appropriate for the person to have multiple

wills, one for each country. In some nations, multiple wills may be useful to reduce or

avoid taxes upon the estate and its assets. Care must be taken to avoid accidental

revocation of prior wills, conflicts between the wills, to anticipate jurisdictional and

choice of law issues that may arise during probate.

Methods and Effect


Intentional physical destruction of a will by the testator will revoke it, through deliberately

burning or tearing the physical document itself, or by striking out the signature. In most

jurisdictions, partial revocation is allowed if only part of the text or a particular provision

is crossed out. Other jurisdictions will either ignore the attempt or hold that the entire will

was actually revoked.

A testator may also be able to revoke by the physical act of another (as would be

necessary if he or she is physically incapacitated), if this is done in their presence and in

the presence of witnesses. Some jurisdictions may presume that a will has been

destroyed if it had been last seen in the possession of the testator but is found mutilated

or cannot be found after their death.

A will may also be revoked by the execution of a new will. However, most wills contain

stock language that expressly revokes any wills that came before them, because

otherwise a court will normally still attempt to read the wills together to the extent they

are consistent.

In some jurisdictions, the complete revocation of a will automatically revives the nextmost

recent will, while others hold that revocation leaves the testator with no will, so that

their heirs will instead inherit by intestate succession.

In England and Wales, marriage will automatically revoke a will, for it is presumed that

upon marriage a testator will want to review the will. A statement in a will that it is made

in contemplation of forthcoming marriage to a named person will override this.

Divorce, conversely, will not revoke a will, but in many jurisdictions will have the effect

that the former spouse is treated as if they had died before the testator and so will not


Where a will has been accidentally destroyed, on evidence that this is the case, a copy

will or draft will may be admitted to probate.

Page 46 of 190

Dependent Relative Revocation

Many jurisdictions exercise an equitable doctrine known as "dependent relative

revocation" ("DRR"). Under this doctrine, courts may disregard a revocation that was

based on a mistake of law on the part of the testator as to the effect of the revocation.

For example, if a testator mistakenly believes that an earlier will can be revived by the

revocation of a later will, the court will ignore the later revocation if the later will comes

closer to fulfilling the testator's intent than not having a will at all. The doctrine also

applies when a testator executes a second, or new will and revokes their old will under

the (mistaken) belief that the new will would be valid. However, if for some reason the

new will is not valid, a court may apply the doctrine to reinstate and probate the old will,

if the court holds that the testator would prefer the old will to intestate succession.

Before applying the doctrine, courts may require (with rare exceptions) that there have

been an alternative plan of disposition of the property. That is, after revoking the prior

will, the testator could have made an alternative plan of disposition. Such a plan would

show that the testator intended the revocation to result in the property going elsewhere,

rather than just being a revoked disposition. Secondly, courts require either that the

testator have recited their mistake in the terms of the revoking instrument, or that the

mistake be established by clear and convincing evidence. For example, when the

testator made the original revocation, he must have erroneously noted that he was

revoking the gift "because the intended recipient has died" or "because I will enact a

new will tomorrow".

DRR may be applied to restore a gift erroneously struck from a will if the intent of the

testator was to enlarge that gift, but will not apply to restore such a gift if the intent of the

testator was to revoke the gift in favor of another person. For example, suppose Tom

has a will that bequeaths $5,000 to his secretary, Alice Johnson. If Tom crosses out that

clause and writes "$7,000 to Alice Johnson" in the margin, but does not sign or date the

Page 47 of 190

writing in the margin, most states would find that Tom had revoked the earlier provision,

but had not effectively amended his will to add the second; however, under DRR the

revocation would be undone because Tom was acting under the mistaken belief that he

could increase the gift to $7,000 by writing that in the margin. Therefore, Alice will get

5,000 dollars. However, the doctrine of relative revocation will not apply if the

interlineation decreases the amount of the gift from the original provision (e.g., "$5,000

to Alice Johnson" is crossed out and replaced with "$3,000 to Alice Johnson" without

Testator's signature or the date in the margin; DRR does not apply and Alice Johnson

will take nothing).

Similarly, if Tom crosses out that clause and writes in the margin "$5,000 to Betty

Smith" without signing or dating the writing, the gift to Alice will be effectively revoked. In

this case, it will not be restored under the doctrine of DRR because even though Tom

was mistaken about the effectiveness of the gift to Betty, that mistake does not affect

Tom's intent to revoke the gift to Alice. Because the gift to Betty will be invalid for lack of

proper execution, that $5,000 will go to Tom's residuary estate.

Election Against the Will

Also referred to as "electing to take against the will". In the United States, many states

have probate statutes which permit the surviving spouse of the decedent to choose to

receive a particular share of deceased spouse's estate in lieu of receiving the specified

share left to him or her under the deceased spouse's will. As a simple example, under

Iowa law (see Code of Iowa Section 633.238 (2005)), the deceased spouse leaves a

will which expressly devises the marital home to someone other than the surviving

spouse. The surviving spouse may elect, contrary to the intent of the will, to live in the

home for the remainder of his/her lifetime. This is called a "life estate" and terminates

immediately upon the surviving spouse's death.

The historical and social policy purposes of such statutes are to assure that the

surviving spouse receives a statutorily set minimum amount of property from the

decedent. Historically, these statutes were enacted to prevent the deceased spouse

from leaving the survivor destitute, thereby shifting the burden of care to the social

welfare system.

In New York, a surviving spouse is entitled to one-third of her deceased spouse's

estate. The decedent's debts, administrative expenses and reasonable funeral

expenses are paid prior to the calculation of the spousal elective share. The elective

share is calculated through the "net estate".

The net estate is inclusive of property that passed by the laws of intestacy, testamentary

property, and testamentary substitutes, as enumerated in EPTL 5-1.1-A. New York's

classification of testamentary substitutes that are included in the net estate make it

challenging for a deceased spouse to disinherit their surviving spouse.

Page 48 of 190

Notable Wills

In antiquity, Julius Caesar's will, which named his grand-nephew Octavian as his

adopted son and heir, funded and legitimized Octavian's rise to political power in the

late Republic; it provided him the resources necessary to win the civil wars against the

"Liberators" and Antony and to establish the Roman Empire under the name Augustus.

Antony's officiating at the public reading of the will led to a riot and moved public opinion

against Caesar's assassins. Octavian's illegal publication of Antony's sealed will was an

important factor in removing his support within Rome, as it described his wish to be

buried in Alexandria beside the Egyptian queen Cleopatra.


the modern era, the Thellusson v Woodford will case led to British legislation against the

accumulation of money for later distribution and was fictionalized as Jarndyce and

Jarndyce in Charles Dickens's Bleak House. The Nobel Prizes were established by

Alfred Nobel's will. Charles Vance Millar's will provoked the Great Stork Derby, as he

successfully bequeathed the bulk of his estate to the Toronto-area woman who had the

greatest number of children in the ten years after his death. (The prize was divided

among four women who had nine, with smaller payments made to women who had

borne 10 children but lost some to miscarriage. Another woman who bore ten children

was disqualified, for several were illegitimate.)

The longest known legal will is that of Englishwoman Frederica Evelyn Stilwell Cook.

Probated in 1925, it was 1,066 pages, and had to be bound in four volumes; her estate

was worth $100,000. The shortest known legal wills are those of Bimla Rishi of Delhi,

India ("all to son") and Karl Tausch of Hesse, Germany, ("all to wife") both containing

only two words in the language they were written in (Hindi and Czech, respectively).

The shortest will is of Shripad Krishnarao Vaidya of Nagpur, Maharashtra, consisting of

five letters (“HEIR'S”).

An unusual holographic will, accepted into probate as a valid one, came out of a tragic

accident. On 8 June 1948 in Saskatchewan, Canada, a farmer named Cecil George

Harris became trapped under his own tractor. Thinking he would not survive (though

Page 49 of 190

found alive later, he died of his injuries in hospital), Harris carved a will into the tractor's

fender, which read:

In case I die in this mess I leave all to the wife. Cecil Geo. Harris.

The fender was probated and stood as his will. The fender is currently on display at the

law library of the University of Saskatchewan College of Law.


After the testator has died, an application for probate may be made in a court with

probate jurisdiction to determine the validity of the will or wills that the testator may have

created, i.e., which will satisfy the legal requirements, and to appoint an executor. In

most cases, during probate, at least one witness is called upon to testify or sign a "proof

of witness" affidavit. In some jurisdictions, however, statutes may provide requirements

for a "self-proving" will (must be met during the execution of the will), in which case

witness testimony may be forgone during probate. Often there is a time limit, usually 30

days, within which a will must be admitted to probate. In some jurisdictions, only an

original will may be admitted to probate—even the most accurate photocopy will not

suffice. Some jurisdictions will admit a copy of a will if the original was lost or

accidentally destroyed and the validity of the copy can be proved to the satisfaction of

the court.

If the will is ruled invalid in probate, then inheritance will occur under the laws of

intestacy as if a will were never drafted.

Page 50 of 190

III. Trusts

A Trust is a three-party fiduciary relationship in which the first party, the trustor or

settlor, transfers ("settles") a property (often but not necessarily a sum of money) upon

the second party (the trustee) for the benefit of the third party, the beneficiary.

A testamentary trust is created by a will and arises after the death of the settlor. An

inter vivos trust is created during the settlor's lifetime by a trust instrument. A trust may

be revocable or irrevocable; in the United States, a trust is presumed to be irrevocable

unless the instrument or will creating it states it is revocable, except in California,

Oklahoma and Texas, in which trusts are presumed to be revocable until the instrument

or will creating them states they are irrevocable. An irrevocable trust can be "broken"

(revoked) only by a judicial proceeding.

Trusts and similar relationships have existed since Roman times.

The trustee is the legal owner of the property in trust, as fiduciary for the beneficiary or

beneficiaries who is/are the equitable owner(s) of the trust property. Trustees thus have

a fiduciary duty to manage the trust to the benefit of the equitable owners. They must

provide a regular accounting of trust income and expenditures. Trustees may be

compensated and be reimbursed their expenses. A court of competent jurisdiction can

remove a trustee who breaches his/her fiduciary duty. Some breaches of fiduciary duty

can be charged and tried as criminal offences in a court of law.

A trustee can be a natural person, a business entity or a public body. A trust in the

United States may be subject to federal and state taxation.

A trust is created by a settlor, who transfers title to some or all of his or her property to a

trustee, who then holds title to that property in trust for the benefit of the beneficiaries.

The trust is governed by the terms under which it was created. In most jurisdictions, this

requires a contractual trust agreement or deed. It is possible for a single individual to

assume the role of more than one of these parties, and for multiple individuals to share

Page 51 of 190

a single role. For example, in a living trust it is common for the grantor to be both a

trustee and a lifetime beneficiary while naming other contingent beneficiaries.

Trusts have existed since Roman times and have become one of the most important

innovations in property law. Trust law has evolved through court rulings differently in

different states, so statements in this article are generalizations; understanding the

jurisdiction-specific case law involved is tricky. Some U.S. states are adapting the

Uniform Trust Code to codify and harmonize their trust laws, but state-specific variations

still remain.

An owner placing property into trust turns over part of his or her bundle of rights to the

trustee, separating the property's legal ownership and control from its equitable

ownership and benefits. This may be done for tax reasons or to control the property and

its benefits if the settlor is absent, incapacitated, or deceased. Testamentary trusts may

be created in wills, defining how money and property will be handled for children or

other beneficiaries.

While the trustee is given legal title to the trust property, in accepting the property title,

the trustee owes a number of fiduciary duties to the beneficiaries. The primary duties

owed include the duty of loyalty, the duty of prudence, the duty of impartiality. [4] A

trustee may be held to a very high standard of care in their dealings, in order to enforce

their behavior. To ensure beneficiaries receive their due, trustees are subject to a

number of ancillary duties in support of the primary duties, including a duties of

openness and transparency; duties of recordkeeping, accounting, and disclosure. In

addition, a trustee has a duty to know, understand, and abide by the terms of the trust

and relevant law. The trustee may be compensated and have expenses reimbursed, but

otherwise must turn over all profits from the trust properties.

There are strong restrictions regarding a trustee with conflict of interests. Courts can

reverse a trustee's actions, order profits returned, and impose other sanctions if they

finds a trustee has failed in any of their duties. Such a failure is termed a breach of trust

and can leave a neglectful or dishonest trustee with severe liabilities for their failures. It

is highly advisable for both settlors and trustees to seek qualified legal counsel prior to

entering into a trust agreement.

Ancient Examples


A possible early concept which later developed into what today is understood as a trust

related to land. An ancient king (settlor) grants property back to its previous owner

(beneficiary) during his absence, supported by witness testimony (trustee). In essence

and in this case, the king, in place of the later state (trustor and holder of assets at

highest position) issues ownership along with past proceeds to the original beneficiary:

On the testimony of Gehazi the servant of Elisha that the woman was the owner of

these lands, the king returns all her property to her. From the fact that the king orders

Page 52 of 190

his eunuch to return to the woman all her property and the produce of her land from the

time that she left...

English Common Law

Roman law had a well-developed concept of the trust (fideicommissum) in terms of

"testamentary trusts" created by wills but never developed the concept of the inter vivos

(living) trusts which apply while the creator lives. This was created by later common law

jurisdictions. Personal trust law developed in England at the time of the Crusades,

during the 12th and 13th centuries. In medieval English trust law, the settlor was known

as the feoffor to uses while the trustee was known as the feoffee to uses and the

beneficiary was known as the cestui que use, or cestui que trust.

At the time, land ownership in England was based on the feudal system. When a

landowner left England to fight in the Crusades, he conveyed ownership of his lands in

his absence to manage the estate and pay and receive feudal dues, on the

understanding that the ownership would be conveyed back on his return. However,

Crusaders often encountered refusal to hand over the property upon their return.

Page 53 of 190

Unfortunately for the Crusader, English common law did not recognize his claim. As far

as the King's courts were concerned, the land belonged to the trustee, who was under

no obligation to return it. The Crusader had no legal claim. The disgruntled Crusader

would then petition the king, who would refer the matter to his Lord Chancellor. The

Lord Chancellor could decide a case according to his conscience. At this time, the

principle of equity was born.

The Lord Chancellor would consider it "unconscionable" that the legal owner could go

back on his word and deny the claims of the Crusader (the "true" owner). Therefore, he

would find in favour of the returning Crusader. Over time, it became known that the Lord

Chancellor's court (the Court of Chancery) would continually recognize the claim of a

returning Crusader. The legal owner would hold the land for the benefit of the original

owner and would be compelled to convey it back to him when requested. The Crusader

was the "beneficiary" and the acquaintance the "trustee". The term "use of land" was

coined, and in time developed into what we now know as a trust.


The trust is widely considered to be the most innovative contribution of the English legal

system. Today, trusts play a significant role in most common law systems, and their

success has led some civil law jurisdictions to incorporate trusts into their civil codes. In

Curaçao, for example, the trust was enacted into law on 1 January 2012; however, the

Curaçao Civil Code only allows express trusts constituted by notarial instrument. France

has recently added a similar, Roman-law-based device to its own law with the fiducie,

amended in 2009; the fiducie, unlike a trust, is a contractual relationship. Trusts are

widely used internationally, especially in countries within the English law sphere of

influence, and whilst most civil law jurisdictions do not generally contain the concept of a

trust within their legal systems, they do recognize the concept under the Hague

Convention on the Law Applicable to Trusts and on their Recognition (partly only the

extent that they are parties thereto). The Hague Convention also regulates conflict of


Although trusts are often associated with intrafamily wealth transfers, they have become

very important in American capital markets, particularly through pension funds (in

certain countries essentially always trusts) and mutual funds (often trusts).

Basic Principles

Property of any sort may be held in a trust. The uses of trusts are many and varied, for

both personal and commercial reasons, and trusts may provide benefits in estate

planning, asset protection, and taxes. Living trusts may be created during a person's life

(through the drafting of a trust instrument) or after death in a will.

In a relevant sense, a trust can be viewed as a generic form of a corporation where the

settlors (investors) are also the beneficiaries. This is particularly evident in the Delaware

business trust, which could theoretically, with the language in the "governing

Page 54 of 190

instrument", be organized as a cooperative corporation or a limited liability

corporation, :475–6 although traditionally the Massachusetts business trust has been

commonly used in the US. One of the most significant aspects of trusts is the ability to

partition and shield assets from the trustee, multiple beneficiaries, and their respective

creditors (particularly the trustee's creditors), making it "bankruptcy remote", and leading

to its use in pensions, mutual funds, and asset securitization as well protection of

individual spendthrifts through the spendthrift trust.


Chart of a Trust

Appointer: This is the person who can appoint a

new trustee or remove an existing one. This

person is usually mentioned in the trust deed.

Appointment: In trust law, "appointment" often

has its everyday meaning. It is common to talk

of "the appointment of a trustee", for example.

However, "appointment" also has a technical trust law meaning, either:



the act of 'appointing' (i.e. giving) an asset from the trust to a beneficiary

(usually where there is some choice in the matter—such as in a

discretionary trust); or

the name of the document which gives effect to the appointment.

The trustee's right to do this, where it exists, is called a power of appointment.

Sometimes, a power of appointment is given to someone other than the trustee, such as

the settlor, the protector, or a beneficiary.

'As Trustee For' (ATF): This is the legal term used to imply that an entity is acting

as a trustee.

Beneficiary: A beneficiary is anyone who receives benefits from any assets the

trust owns.

'In Its Own Capacity' (IIOC): This term refers to the fact that the trustee is acting

on its own behalf.

Protector: A protector may be appointed in an express, inter vivos trust, as a

person who has some control over the trustee—usually including a power to

dismiss the trustee and appoint another. The legal status of a protector is the

subject of some debate. No-one doubts that a trustee has fiduciary

responsibilities. If a protector also has fiduciary responsibilities, then the courts—

Page 55 of 190

if asked by beneficiaries—could order him or her to act in the way the court

decrees. However, a protector is unnecessary to the nature of a trust—many

trusts can and do operate without one. Also, protectors are comparatively new,

while the nature of trusts has been established over hundreds of years. It is

therefore thought by some that protectors have fiduciary duties, and by others

that they do not. The case law has not yet established this point.

Settlor(s): This is the person (or persons) who creates the trust. Grantor(s) is a

common synonym.

Terms of the Trust means the settlor's wishes expressed in the Trust Instrument.

Trust deed: A trust deed is a legal document that defines the trust such as the

trustee, beneficiaries, settlor and appointer, and the terms and conditions of the


Trust distributions: A trust distribution is any income or asset that is given out to

the beneficiaries of the trust.

Trustee: A person (either an individual, a corporation or more than one of either)

who administers a trust. A trustee is considered a fiduciary and owes the highest

duty under the law to protect trust assets from unreasonable loss for the trust's



Trusts may be created by the expressed intentions of the settlor (express trusts) [11] or

they may be created by operation of law known as implied trusts. An implied trust is one

created by a court of equity because of acts or situations of the parties. Implied trusts

are divided into two categories: resulting and constructive. A resulting trust is implied by

the law to work out the presumed intentions of the parties, but it does not take into

consideration their expressed intent. A constructive trust is a trust implied by law to work

out justice between the parties, regardless of their intentions.

Typically a trust can be created in the following four ways:

1. a written trust instrument created by the settlor and signed by both the settlor and

the trustees (often referred to as an inter vivos or living trust);

2. an oral declaration;

3. the will of a decedent, usually called a testamentary trust; or

4. a court order (for example in family proceedings).

Page 56 of 190

In some jurisdictions certain types of assets may not be the subject of a trust without a

written document.


The formalities required of a trust depends on the type of trust in question.

Generally, a private express trust requires three elements to be certain, which together

are known as the "three certainties". These elements were determined in Knight v

Knight to be intention, subject matter and objects. The certainty of intention allows the

court to ascertain a settlor's true reason for creating the trust. The certainties of subject

Page 57 of 190

matter and objects allow the court to administer trust when the trustees fail to do so.

The court determines whether there is sufficient certainty by construing the words used

in the trust instrument. These words are construed objectively in their "reasonable

meaning", within the context of the entire instrument. Despite intention being integral to

express trusts, the court will try not to let trusts fail for the lack of certainty.

1. Intention. A mere expression of hope that a trust be created does not constitute

an intention to create a trust. Conversely, the existence of terms of art or the

word "trust" does not indicate whether an instrument is an express trust. Disputes

in this area mainly concerns differentiating gifts from trusts.

2. Subject Matter. The property subject to the trust must be clearly identified

(Palmer v Simmonds). One may not, for example state, settle "the majority of my

estate", as the precise extent cannot be ascertained. Trust property may be any

form of specific property, be it real or personal, tangible or intangible. It is often,

for example, real estate, shares or cash.

3. Objects. The beneficiaries of the trust must be clearly identified, or at least be

ascertainable (Re Hain's Settlement). In the case of discretionary trusts, where

the trustees have power to decide who the beneficiaries will be, the settlor must

have described a clear class of beneficiaries (McPhail v Doulton). Beneficiaries

may include people not born at the date of the trust (for example, "my future

grandchildren"). Alternatively, the object of a trust could be a charitable purpose

rather than specific beneficiaries.


A trust may have multiple trustees, and these trustees are the legal owners of the trust's

property, but have a fiduciary duty to beneficiaries and various duties, such as a duty of

care and a duty to inform. If trustees do not adhere to these duties, they may be

removed through a legal action. The trustee may be either a person or a legal entity

such as a company, but typically the trust itself is not an entity and any lawsuit must be

against the trustees. A trustee has many rights and responsibilities which vary based on

the jurisdiction and trust instrument. If a trust lacks a trustee, a court may appoint a


The trustees administer the affairs attendant to the trust. The trust's affairs may include

prudently investing the assets of the trust, accounting for and reporting periodically to

the beneficiaries, filing required tax returns and other duties. In some cases dependent

upon the trust instrument, the trustees must make discretionary decisions as to whether

beneficiaries should receive trust assets for their benefit. A trustee may be held

personally liable for problems, although fiduciary liability insurance similar to directors

and officers liability insurance can be purchased. For example, a trustee could be liable

if assets are not properly invested. In addition, a trustee may be liable to its

beneficiaries even where the trust has made a profit but consent has not been given.

However, in the United States, similar to directors and officers, an exculpatory clause

Page 58 of 190

may minimize liability; although this was previously held to be against public policy, this

position has changed.

In the United States, the Uniform Trust Code provides for reasonable compensation and

reimbursement for trustees subject to review by courts, although trustees may be

unpaid. Commercial banks acting as trustees typically charge about 1% of assets under



The beneficiaries are beneficial (or 'equitable') owners of the trust property. Either

immediately or eventually, the beneficiaries will receive income from the trust property,

or they will receive the property itself. The extent of a beneficiary's interest depends on

the wording of the trust document.

One beneficiary may be entitled to income (for example, interest from a bank account),

whereas another may be entitled to the entirety of the trust property when he attains the

age of twenty-five years. The settlor has much discretion when creating the trust,

subject to some limitations imposed by law.

The use of trusts as a means to inherit substantial wealth may be associated with some

negative connotations; some beneficiaries who are able to live comfortably from trust

proceeds without having to work a job may be jokingly referred to as "trust fund babies"

(regardless of age) or "trustafarians".

Page 59 of 190


Common purposes for trusts include:

Privacy: Trusts may be created purely for privacy. The terms of a will are public

in certain jurisdictions, while the terms of a trust are not.

Spendthrift clauses: Trusts may be used to protect beneficiaries (for example,

one's children) against their own inability to handle money. These are especially

attractive for spendthrifts. Courts may generally recognize spendthrift clauses

against trust beneficiaries and their creditors, but not against creditors of a


Wills and estate planning: Trusts frequently appear in wills (indeed, technically,

the administration of every deceased's estate is a form of trust). Conventional

wills typically leave assets to the deceased's spouse (if any), and then to the

children equally. If the children are under 18, or under some other age mentioned

in the will (21 and 25 are common), a trust must come into existence until the

'contingency age' is reached. The executor of the will is (usually) the trustee, and

the children are the beneficiaries. The trustee will have powers to assist the

beneficiaries during their minority.

Charities: In some common law jurisdictions all charities must take the form of

trusts. In others, corporations may be charities also. In most jurisdictions,

charities are tightly regulated for the public benefit (in England, for example, by

the Charity Commission).

Unit trusts: The trust has proved to be such a flexible concept that it has proved

capable of working as an investment vehicle: the unit trust.

Pension plans: typically set up as a trust, with the employer as settlor, and the

employees and their dependents as beneficiaries.

Remuneration trusts: for the benefit of directors and employees or companies or

their families or dependents. This form of trust was developed by Paul

Baxendale-Walker and has since gained widespread use.

Corporate structures: Complex business arrangements, most often in the finance

and insurance sectors, sometimes use trusts among various other entities (e.g.,

corporations) in their structure.

Asset protection: Trusts may allow beneficiaries to protect assets from creditors

as the trust may be bankruptcy remote. For example, a discretionary trust, of

which the settlor may be the protector and a beneficiary, but not the trustee and

not the sole beneficiary. In such an arrangement the settlor may be in a position

to benefit from the trust assets, without owning them, and therefore in theory

Page 60 of 190

protected from creditors. In addition, the trust may attempt to preserve anonymity

with a completely unconnected name (e.g., "The Teddy Bear Trust"). These

strategies are ethically and legally controversial.

Tax planning: The tax consequences of doing anything using a trust are usually

different from the tax consequences of achieving the same effect by another

route (if, indeed, it would be possible to do so). In many cases, the tax

consequences of using the trust are better than the alternative, and trusts are

therefore frequently used for legal tax avoidance. For an example see the "nilband

discretionary trust", explained at Inheritance Tax (United Kingdom).

Co-ownership: Ownership of property by more than one person is facilitated by a

trust. In particular, ownership of a matrimonial home is commonly effected by a

trust with both partners as beneficiaries and one, or both, owning the legal title as


Construction law: In Canada and Minnesota monies owed by employers to

contractors or by contractors to subcontractors on construction projects must by

law be held in trust. In the event of contractor insolvency, this makes it much

more likely that subcontractors will be paid for work completed.

Legal retainer – Lawyers in certain countries often require that a legal retainer be

paid upfront and held in trust until such time as the legal work is performed and

billed to the client, this serves as a minimum guarantee of remuneration should

Page 61 of 190

the client become insolvent. However, strict legal ethical codes apply to the use

of legal retainer trusts.

Alphabetic List of Trust Types


Trusts go by many different names, depending on the characteristics or the purpose of

the trust. Because trusts often have multiple characteristics or purposes, a single trust

might accurately be described in several ways. For example, a living trust is often an

express trust, which is also a revocable trust, and might include an incentive trust, and

so forth.

Asset-Protection Trust: The concept of an asset-protection trust encompasses

any form of trust that provides for funds to be held on a discretionary basis. Such

trusts are set up in an attempt to avoid or mitigate the effects of taxation, divorce

and bankruptcy on the beneficiary. Such trusts may be proscribed or limited in

their effect by governments and the courts.

Constructive Trust: Unlike an express trust, a constructive trust is not created

by an agreement between a settlor and the trustee. A constructive trust is

imposed by the law as an "equitable remedy". This generally occurs due to some

wrongdoing, where the wrongdoer has acquired legal title to some property and

cannot in good conscience be allowed to benefit from it. A constructive trust is,

essentially, a legal fiction. For example, a court of equity recognizing a plaintiff's

request for the equitable remedy of a constructive trust may decide that a

constructive trust has been created and simply order the person holding the

assets to deliver them to the person who rightfully should have them. The

constructive trustee is not necessarily the person who is guilty of the wrongdoing,

and in practice it is often a bank or similar organization. The distinction may be

finer than the preceding exposition in that there are also said to be two forms of

constructive trust, the institutional constructive trust and the remedial constructive

trust. The latter is an "equitable remedy" imposed by law being truly remedial; the

former arising due to some defect in the transfer of property.

Discretionary Trust: In a discretionary trust, certainty of object is satisfied if it

can be said that there is a criterion which a person must satisfy in order to be a

beneficiary (i.e., whether there is a 'class' of beneficiaries, which a person can be

said to belong to). In that way, persons who satisfy that criterion (who are

members of that class) can enforce the trust. Re Baden’s Deed Trusts; McPhail v


Directed Trust: In these types, a directed trustee is directed by a number of

other trust participants in implementing the trust's execution; these participants

may include a distribution committee, trust protector, or investment advisor. The

directed trustee's role is administrative which involves following investment

Page 62 of 190

instructions, holding legal title to the trust assets, providing fiduciary and tax

accounting, coordinating trust participants and offering dispute resolution among

the participants

Dynasty Trust (also known as a 'generation-skipping trust'): A type of trust in

which assets are passed down to the grantor's grandchildren, not the grantor's

children. The children of the grantor never take title to the assets. This allows the

grantor to avoid the estate taxes that would apply if the assets were transferred

to his or her children first. Generation-skipping trusts can still be used to provide

financial benefits to a grantor's children, however, because any income

generated by the trust's assets can be made accessible to the grantor's children

while still leaving the assets in trust for the grandchildren.

Express Trust: An express trust arises where a settlor deliberately and

consciously decides to create a trust, over their assets, either now, or upon his or

her later death. In these cases this will be achieved by signing a trust instrument,

which will either be a will or a trust deed. Almost all trusts dealt with in the trust

industry are of this type. They contrast with resulting and constructive trusts. The

intention of the parties to create the trust must be shown clearly by their

Page 63 of 190

language or conduct. For an express trust to exist, there must be certainty to the

objects of the trust and the trust property. In the USA Statute of Frauds

provisions require express trusts to be evidenced in writing if the trust property is

above a certain value, or is real estate.

Fixed Trust: The entitlement of the beneficiaries is fixed by the settlor. The

trustee has little or no discretion. Common examples are:

o a trust for a minor ("to x if she attains 21");

o a 'life interest' ("to pay the income to x for her lifetime"); and

o a 'remainder' ("to pay the capital to y after the death of x")

Grantor Retained Annuity Trust ('GRAT'): an irrevocable trust whereby a

grantor transfers asset(s), as a gift, into a trust and receives an annual payment

from the trust for a period of time specified in the trust instrument. At the end of

the term, the financial property is transferred (tax-free) to the named

beneficiaries. This trust is commonly used in the U.S. to facilitate large financial

gifts that are not subject to a 'gift tax'.

Hybrid Trust: Combines elements of both fixed and discretionary trusts. In a

hybrid trust, the trustee must pay a certain amount of the trust property to each

beneficiary fixed by the settlor. But the trustee has discretion as to how any

remaining trust property, once these fixed amounts have been paid out, is to be

paid to the beneficiaries.

Implied Trust: as distinct from an express trust, is created where some of the

legal requirements for an express trust are not met, but an intention on behalf of

the parties to create a trust can be presumed to exist. A resulting trust may be

deemed to be present where a trust instrument is not properly drafted and a

portion of the equitable title has not been provided for. In such a case, the law

may raise a resulting trust for the benefit of the grantor (the creator of the trust).

In other words, the grantor may be deemed to be a beneficiary of the portion of

the equitable title that was not properly provided for in the trust document.

Improvement Trust: can be set up by urban or local government to hold funds

for the development or improvement of an area. The trust is often run by a

committee, and can act similarly to a development agency, depending on the

provisions of its charter.

Incentive Trust: A trust that uses distributions from income or principal as an

incentive to encourage or discourage certain behaviors on the part of the

beneficiary. The term "incentive trust" is sometimes used to distinguish trusts that

provide fixed conditions for access to trust funds from discretionary trusts that

leave such decisions up to the trustee.

Page 64 of 190

Inter Vivos Trust (or 'Living Trust'): A settlor who is living at the time the trust

is established creates an inter vivos trust.

Irrevocable Trust: In contrast to a revocable trust, an irrevocable trust is one in

which the terms of the trust cannot be amended or revised until the terms or

purposes of the trust have been completed. Although in rare cases, a court may

change the terms of the trust due to unexpected changes in circumstances that

make the trust uneconomical or unwieldy to administer, under normal

circumstances an irrevocable trust may not be changed by the trustee or the

beneficiaries of the trust.

Land Trust: A private, nonprofit organization that, as all or part of its mission,

actively works to conserve land by undertaking or assisting in land or

conservation easement acquisition, or by its stewardship of such land or

easements; or an agreement whereby one party (the trustee) agrees to hold

ownership of a piece of real property for the benefit of another party (the


Offshore Trust: Strictly speaking, an offshore trust is a trust which is resident in

any jurisdiction other than that in which the settlor is resident. However, the term

is more commonly used to describe a trust in one of the jurisdictions known as

offshore financial centers or, colloquially, as tax havens. Offshore trusts are

usually conceptually similar to onshore trusts in common law countries, but

usually with legislative modifications to make them more commercially attractive

by abolishing or modifying certain common law restrictions. By extension,

"onshore trust" has come to mean any trust resident in a high-tax jurisdiction.

Page 65 of 190

Personal Injury Trust: A personal injury trust is any form of trust where funds

are held by trustees for the benefit of a person who has suffered an injury and

funded exclusively by funds derived from payments made in consequence of that


Private And Public Trusts: A private trust has one or more particular

individuals as its beneficiary. By contrast, a public trust (also called a charitable

trust) has some charitable end as its beneficiary. In order to qualify as a

charitable trust, the trust must have as its object certain purposes such as

alleviating poverty, providing education, carrying out some religious purpose, etc.

The permissible objects are generally set out in legislation, but objects not

explicitly set out may also be an object of a charitable trust, by analogy.

Charitable trusts are entitled to special treatment under the law of trusts and also

the law of taxation.

Protective Trust: Here the terminology is different between the UK and the USA:



In the UK, a protective trust is a life interest that terminates upon the

happening of a specified event; such as the bankruptcy of the beneficiary,

or any attempt by an individual to dispose of his or her interest. They have

become comparatively rare.

In the US, a 'protective trust' is a type of trust that was devised for use in

estate planning. (In another jurisdiction this might be thought of as one

type of asset protection trust.) Often a person, A, wishes to leave property

to another person B. A, however, fears that the property might be claimed

by creditors before A dies, and that therefore B would receive none of it. A

could establish a trust with B as the beneficiary, but then A would not be

entitled to use of the property before they died. Protective trusts were

developed as a solution to this situation. A would establish a trust with

both A and B as beneficiaries, with the trustee instructed to allow A use of

the property until they died, and thereafter to allow its use to B. The

property is then safe from being claimed by A's creditors, at least so long

as the debt was entered into after the trust's establishment. This use of

trusts is similar to life estates and remainders, and is frequently used as

an alternative to them.

Purpose Trust: Or, more accurately, non-charitable purpose trust (all charitable

trusts are purpose trusts). Generally, the law does not permit non-charitable

purpose trusts outside of certain anomalous exceptions which arose under the

eighteenth century common law (and, arguable, Quistclose trusts). Certain

jurisdictions (principally, offshore jurisdictions) have enacted legislation validating

non-charitable purpose trusts generally.

Page 66 of 190

QTIP Trust: Short for "qualified terminal interest property." A trust recognized

under the tax laws of the United States which qualifies for the marital gift

exclusion from the estate tax.

Resulting Trust: A resulting trust is a form of implied trust which occurs where

(1) a trust fails, wholly or in part, as a result of which the settlor becomes entitled

to the assets; or (2) a voluntary payment is made by A to B in circumstances

which do not suggest gifting. B becomes the resulting trustee of A's payment.

Revocable Trust: A trust of this kind may be amended, altered or revoked by its

settlor at any time, provided the settlor is not mentally incapacitated. Revocable

trusts are becoming increasingly common in the US as a substitute for a will to

Page 67 of 190

minimize administrative costs associated with probate and to provide centralized

administration of a person's final affairs after death.

Secret Trust: A post mortem trust constituted externally from a will but imposing

obligations as a trustee on one, or more, legatees of a will.

Semi-Secret Trust: A trust in which a will demonstrates the intention to create a

trust, names a trustee, but does not identify the intended beneficiary.

Simple Trust:


In the US jurisdiction this has two distinct meanings:

• In a simple trust the trustee has no active duty beyond conveying

the property to the beneficiary at some future time determined by

the trust. This is also called a 'bare trust'. All other trusts are special

trusts where the trustee has active duties beyond this.

• A simple trust in Federal income tax law is one in which, under the

terms of the trust document, all net income must be distributed on

an annual basis.


In the UK a bare or simple trust is one where the beneficiary has an

immediate and absolute right to both the capital and income held in the

trust. Bare trusts are commonly used to transfer assets to minors.

Trustees hold the assets on trust until the beneficiary is 18 in England and

Wales, or 16 in Scotland.

Special Trust: In the US, a special trust, also called complex trust, contrasts with

a simple trust (see above). It does not require the income be paid out within the

subject tax year. The funds from a complex trust can also be used to donate to a

charity or for charitable purposes.

Special Power of Appointment Trust (SPA Trust): A trust implementing a

special power of appointment to provide asset protection features.

Spendthrift Trust: It is a trust put into place for the benefit of a person who is

unable to control their spending. It gives the trustee the power to decide how the

trust funds may be spent for the benefit of the beneficiary.

Standby Trust (or 'Pourover Trust)': The trust is empty at creation during life

and the will transfers the property into the trust at death. This is a statutory trust.

Statutory Business Trust: A trust created pursuant to a state's business trust

statute used primarily for commercial purposes. Two prominent variants of

Statutory Business Trusts are Delaware statutory trusts and Massachusetts

Page 68 of 190

usiness trusts. The Uniform Law Commission promulgated a final amended

draft of the Uniform Statutory Entity Act (2009) in 2013. As of 24 January 2017,

no states have adopted the Uniform Statutory Entity Act of 2009.

Testamentary Trust (or 'Will Trust'): A trust created in an individual's will is

called a testamentary trust. Because a will can become effective only upon

death, a testamentary trust is generally created at or following the date of the

settlor's death.

Unit Trust: A trust where the beneficiaries (called unitholders) each possess a

certain share (called units) and can direct the trustee to pay money to them out of

the trust property according to the number of units they possess. A unit trust is a

vehicle for collective investment, rather than disposition, as the person who gives

the property to the trustee is also the beneficiary.

Regional Variations

Trusts originated in England, and therefore English trusts law has had a significant

influence, particularly among common law legal systems such as the United States and

the countries of the Commonwealth.

Page 69 of 190

Trust law in civil law jurisdictions, generally including Continental Europe only exists in a

limited number of jurisdictions (e.g. Curaçao, Liechtenstein and Sint Maarten). The trust

may however be recognized as an instrument of foreign law in conflict of laws cases, for

example within the Brussels regime (Europe) and the parties to the Hague Trust

Convention. Tax avoidance concerns have historically been one of the reasons that

European countries with a civil law system have been reluctant to adopt trusts.

United States

State law applies to trusts, and the Uniform Trust Code has been enacted by the

legislatures in many states. In addition, federal law considerations such as federal taxes

administered by the Internal Revenue Service may affect the structure and creation of

trusts. The common law of trusts is summarized in the Restatements of the Law, such

as the Restatement of Trusts, Third (2003−08).

In the United States the tax law allows trusts to be taxed as corporations, partnerships,

or not at all depending on the circumstances, although trusts may be used for tax

avoidance in certain situations. For example, the trust-preferred security is a hybrid

(debt and equity) security with favorable tax treatment which is treated as regulatory

capital on banks' balance sheets. The Dodd-Frank Wall Street Reform and Consumer

Protection Act changed this somewhat by not allowing these assets to be a part of

(large) banks' regulatory capital.

Estate planning

Living trusts, as opposed to testamentary (will) trusts, may help a trustor avoid

probate. [34] Avoiding probate may save costs and maintain privacy and living trusts have

become very popular. Probate is potentially costly, and probate records are available to

the public while distribution through a trust is private. Both living trusts and wills can also

be used to plan for unforeseen circumstances such as incapacity or disability, by giving

discretionary powers to the trustee or executor of the will.

Negative aspects of using a living trust as opposed to a will and probate include upfront

legal expenses, the expense of trust administration, and a lack of certain safeguards.

The cost of the trust may be 1% of the estate per year versus the one-time probate cost

of 1 to 4% for probate, which applies whether or not there is a drafted will. Unlike trusts,

wills must be signed by two to three witnesses, the number depending on the law of the

jurisdiction in which the will is executed.

Legal protections that apply to probate but do not automatically apply to trusts include

provisions that protect the decedent's assets from mismanagement or embezzlement,

such as requirements of bonding, insurance, and itemized accountings of probate


Page 70 of 190

Estate Tax Effect

Living trusts generally do not shelter assets from the U.S. federal estate tax. Married

couples may, however, effectively double the estate tax exemption amount by setting up

the trust with a formula clause.

For a living trust, the grantor may retain some level of control to the trust, such by

appointment as protector under the trust instrument. Living trusts also, in practical

terms, tend to be driven to large extent by tax considerations. If a living trust fails, the

property will usually be held for the grantor/settlor on resulting trusts, which in some

notable cases, has had catastrophic tax consequences.

South Africa

In many ways trusts in South Africa operate similarly to other common law countries,

although the law of South Africa is actually a hybrid of the British common law system

and Roman-Dutch law.

In South Africa, in addition to the traditional living trusts and will trusts there is a ‘bewind

trust’ (inherited from the Roman-Dutch bewind administered by a bewindhebber) in

which the beneficiaries own the trust assets while the trustee administers the trust,

although this is regarded by modern Dutch law as not actually a trust. Bewind trusts are

created as trading vehicles providing trustees with limited liability and certain tax


In South Africa, minor children cannot inherit assets and in the absence of a trust and

assets held in a state institution, the Guardian's Fund, and released to the children in

Page 71 of 190

adulthood. Therefore, testamentary (will) trusts often leave assets in a trust for the

benefit of these minor children.

There are two types of living trusts in South Africa, namely vested trusts and

discretionary trusts. In vested trusts, the benefits of the beneficiaries are set out in the

trust deed, whereas in discretionary trusts the trustees have full discretion at all times as

to how much and when each beneficiary is to benefit.

Asset Protection

Until recently, there were tax advantages to living trusts in South Africa, although most

of these advantages have been removed. Protection of assets from creditors is a

modern advantage. With notable exceptions, assets held by the trust are not owned by

the trustees or the beneficiaries, the creditors of trustees or beneficiaries can have no

claim against the trust. Under the Insolvency Act (Act 24 of 1936), assets transferred

into a living trust remain at risk from external creditors for 6 months if the previous

owner of the assets is solvent at the time of transfer, or 24 months if he/she is insolvent

at the time of transfer. After 24 months, creditors have no claim against assets in the

trust, although they can attempt to attach the loan account, thereby forcing the trust to

sell its assets. Assets can be transferred into the living trust by selling it to the trust

(through a loan granted to the trust) or donating cash to it (any natural person can

donate R100 000 per year without attracting donations tax; 20% donations tax applies

to further donations within the same tax year).

Tax Considerations

Under South African law living trusts are considered tax payers. Two types of tax apply

to living trusts, namely income tax and capital gains tax (CGT). A trust pays income tax

at a flat rate of 40% (individuals pay according to income scales, usually less than

20%). The trust's income can, however, be taxed in the hands of either the trust or the

beneficiary. A trust pays CGT at the rate of 20% (individuals pay 10%). Trusts do not

pay deceased estate tax (although trusts may be required to pay back outstanding

loans to a deceased estate, in which the loan amounts are taxable with deceased estate


The taxpayer whose residence has been ‘locked’ into a trust has now been given

another opportunity to take advantage of these CGT exemptions. The Taxation Law

Amendment Act of 30 September 2009 commenced on 1 January 2010 and granted a

2-year window period from 1 January 2010 to 31 December 2011, affording a natural

person the opportunity to take transfer of the residence with advantage of no transfer

duty being payable or CGT consequences. Whilst taxpayers can take advantage of this

opening of a window of opportunity, it is not likely that it will ever become available


Page 72 of 190

IV. Estates

An Estate, in common law, is the net worth of a person at any point in time alive or

dead. It is the sum of a person's assets – legal rights, interests and entitlements to

property of any kind – less all liabilities at that time. The issue is of special legal

significance on a question of bankruptcy and death of the person. (See inheritance.)

Depending on the particular context, the term is also used in reference to an estate in

land or of a particular kind of property (such as real estate or personal estate). The term

is also used to refer to the sum of a person's assets only.

The equivalent in civil law legal systems is patrimony.


Under United States bankruptcy law, a person's estate consists of all assets or property

of any kind available for distribution to creditors. However, some assets are recognized

as exempt to allow a person significant resources to restart his or her financial life. In

the United States, asset exemptions depend on various factors, including state and

federal law.

The estate (or assets) of a bankrupt person is administered by a trustee in bankruptcy.

The legal position in all common law countries is similar in this respect.

Page 73 of 190

Legal Estate in Land

In land law, the term "estate" is a remnant of the English feudal system, which created a

complex hierarchy of estates and interests in land. The allodial or fee simple interest is

the most complete ownership that one can have of property in the common law system.

An estate can be an estate for years, an estate at will, a life estate (extinguishing at the

death of the holder), an estate pur auter vie (a life interest for the life of another person)

or a fee tail estate (to the heirs of one's body) or some more limited kind of heir (e.g. to

heirs male of one's body).

Fee simple estates may be either fee simple absolute or defeasible (i.e. subject to future

conditions) like fee simple determinable and fee simple subject to condition subsequent;

this is the complex system of future interests (q.v.) which allows concepts of trusts and

estates to elide into actuarial science through the use of life contingencies.

Estate in land can also be divided into estates of inheritance and other estates that are

not of inheritance. The fee simple estate and the fee tail estate are estates of

inheritance; they pass to the owner's heirs by operation of law, either without restrictions

(in the case of fee simple), or with restrictions (in the case of fee tail). The estate for

years and the life estate are estates not of inheritance; the owner owns nothing after the

term of years has passed, and cannot pass on anything to his or her heirs.

Legal estates and interests are called rights "in rem", and said to be "good against the


Equitable Estates

Superimposed on the legal estate and interests in land, English courts also created

"equitable interests" over the same legal interests. These obligations are called trusts

which will be enforceable in a court. A trustee is the person who holds the legal title to

property, while the beneficiary is said to have an equitable interest in the property.

Page 74 of 190

V. Estate Planning

Estate Planning is the process of anticipating and arranging, during a person's life, for

the management and disposal of that person's estate during the person's life and at and

after death, while minimizing gift, estate, generation skipping transfer, and income tax.

Estate planning includes planning for incapacity as well as a process of reducing or

eliminating uncertainties over the administration of a probate and maximizing the value

of the estate by reducing taxes and other expenses. The ultimate goal of estate

planning can be determined by the specific goals of the client, and may be as simple or

complex as the client's needs dictate. Guardians are often designated for minor children

and beneficiaries in incapacity.

The law of estate planning overlaps to some degree with elder law, which additionally

includes other provisions such as long-term care.


Estate planning involves the will, trusts, beneficiary designations, powers of

appointment, property ownership (joint tenancy with rights of survivorship, tenancy in

common, tenancy by the entirety), gift, and powers of attorney, specifically the durable

financial power of attorney and the durable medical power of attorney.

More sophisticated estate plans may even cover deferring or decreasing estate taxes or

business succession.

Page 75 of 190


Wills are a common estate planning tool, and are usually the simplest device for

planning the distribution of an estate. It is important that a will be created and executed

in compliance with the laws of the jurisdiction where it is created. If it is possible that

probate proceedings will occur in a different jurisdiction, it is important also to ensure

that the will complies with the laws of that jurisdiction or that the jurisdiction will follow

the provisions of a valid out-of-state will even if they might be invalid for a will executed

in that jurisdiction.


A trust may be used as an estate planning tool, to direct the distribution of assets after

the person who creates the trust passes away. Trusts may be used to provide for the

distribution of funds for the benefit of minor children or developmentally disabled

children. For example, a spendthrift trust may be used to prevent wasteful spending by

a spendthrift child, or a special needs trust may be used for developmentally disabled

children or adults. Trusts offer a high degree of control over management and

disposition of assets. Furthermore, certain types of trust provisions can provide for the

management of wealth for several generations past the settlor. Typically referred to as

dynasty planning, these types of trust provisions allow for the protection of wealth for

several generations after a person's death.

Advance Directives

An estate plan may include the creation of advance directives, documents that direct

what will happen to a person's estate and in relation to their personal care if the person

becomes legally incapacitated. For example, an estate plan may include a healthcare

proxy, durable power of attorney, and living will.

After widespread litigation and media coverage surrounding the Terri Schiavo case,

estate planning attorneys often advise clients to also create a living will. Specific final

arrangements, such as whether to be buried or cremated, are also often part of the



Income, gift, and estate tax planning plays a significant role in choosing the structure

and vehicles used to create an estate plan.

United States

In the United States, assets left to a spouse or any qualified charity are not subject to

U.S. Federal estate tax. Assets left to any other heir, including the decedent's children,

may be taxed if that portion of the estate has a value in excess of the estate tax

Page 76 of 190

exemption. As of 2018, the federal estate tax exemption was $11,180,000. For a

married couple, the combined exemption is $22,360,000.

Tax Strategies

One way to avoid U.S. Federal estate and gift taxes is to distribute the property in

incremental gifts during the person's lifetime. Individuals may give away as much as

$15,000 per year (in 2018) without incurring gift tax. Other tax free alternatives include

paying a grandchild’s college tuition or medical insurance premiums free of gift tax—but

only if the payments are made directly to the educational institution or medical provider.

Other tax advantaged alternatives to leaving property, outside of a will, include qualified

or non-qualified retirement plans (e.g. 401(k) plans and IRAs) certain “trustee” bank

accounts, transfer on death (or TOD) financial accounts, and life insurance proceeds.

Because life insurance proceeds generally are not taxed for U.S. Federal income tax

purposes, a life insurance trust could be used to pay estate taxes. However, if the

decedent holds any incidents of ownership like the ability to remove or change a

beneficiary, the proceeds will be treated as part of his estate and will generally be

subject to the U.S. Federal estate tax. For this reason, the trust vehicle is used to own

the life insurance policy. The trust must be irrevocable to avoid taxation of the life

insurance proceeds.

Page 77 of 190


Countries whose legal systems evolved from the British common law system, like the

United States, typically use the probate system for distributing property at death.

Probate is a process where

1. the decedent's purported will, if any, is entered in court,

2. after hearing evidence from the representative of the estate, the court decides if

the will is valid,

3. a personal representative is appointed by the court as a fiduciary to gather and

take control of the estate's assets,

4. known and unknown creditors are notified (through direct notice or publication in

the media) to file any claims against the estate,

5. claims are paid out (if funds remain) in the order or priority governed by state


6. remaining funds are distributed to beneficiaries named in the will, or heirs (nextof-kin)

if there is no will, and

7. the probate judge closes out the estate.

Probate Avoidance

Due to the time and expenses associated with the traditional probate process, modern

estate planners frequently counsel clients to enact probate avoidance strategies. Some

common probate-avoidance strategies include:

1. revocable living trusts,

2. joint ownership of assets and naming death beneficiaries,

3. making lifetime gifts, and

4. purchasing life insurance.

If a revocable living trust is used as a part of an estate plan, the key to probate

avoidance is ensuring that the living trust is "funded" during the lifetime of the person

establishing the trust.

After executing a trust agreement, the settlor should ensure that all assets are properly

re-registered in the name of the living trust. If assets (especially higher value assets and

real estate) remain outside of a trust, then a probate proceeding may be necessary to

transfer the asset to the trust upon the death of the testator.

Page 78 of 190

Designation of a Beneficiary

Although legal restrictions may apply, it is broadly possible to convey property outside of

probate, through such tools as a living trust, forms of joint property ownership that

include a right of survivorship, payable on death account, or beneficiary designation on

a financial account or insurance policy. Beneficiary designations are considered

distributions under the law of contracts and cannot be changed by statements or

provisions outside of the contract, such as a clause in a will.

In the United States, without a beneficiary statement, the default provision in the

contract or custodian-agreement (for an IRA) will apply, which may be the estate of the

owner resulting in higher taxes and extra fees. Generally, beneficiary designations are

made for life insurance policies, employee benefits, (including retirement plans and

group life insurance) and Individual Retirement Accounts.

Identity: A specific, identifiable individual or business must be designated as

beneficiary for life insurance policies. Businesses may not be the beneficiary of a

group life insurance policy or a retirement plan.

Contingent beneficiary: If the primary beneficiary predeceases the contract

owner, the contingent beneficiary becomes the designated beneficiary. If a

contingent beneficiary is not named, the default provision in the contract or

custodian-agreement applies.

Page 79 of 190

Death: For retirement plan assets, at the account owner's death, the primary

beneficiary may select his or her own beneficiaries if the remaining balance will

be paid out over time. There is no obligation to retain the contingent beneficiary

designated by the IRA owner.

Multiple accounts: A policy owner or retirement account owner can designate

multiple beneficiaries. However, retirement plans governed by ERISA provide

protections for spouses of account holders that prevent the disinheritance of a

living spouse.


Mediation serves as an alternative to a full-scale litigation to settle disputes. At a

mediation, family members and beneficiaries discuss plans on transfer of assets.

Because of the potential conflicts associated with blended families, step siblings, and

multiple marriages, creating an estate plan through mediation allows people to confront

the issues head-on and design a plan that will minimize the chance of future family

conflict and meet their financial goals.

Page 80 of 190

VI. Probate

Probate is the judicial process whereby a will is "proved" in a court of law and accepted

as a valid public document that is the true last testament of the deceased, or whereby

the estate is settled according to the laws of intestacy in the state of residence [or real

property] of the deceased at time of death in the absence of a legal will.

The granting of probate is the first step in the legal process of administering the estate

of a deceased person, resolving all claims and distributing the deceased person's

property under a will. A probate court decides the legal validity of a testator's (deceased

person's) will and grants its approval, also known as granting probate, to the executor.

The probated will then becomes a legal instrument that may be enforced by the

executor in the law courts if necessary.

A probate also officially appoints the executor (or personal representative), generally

named in the will, as having legal power to dispose of the testator's assets in the

manner specified in the testator's will. However, through the probate process, a will may

be contested.

Page 81 of 190



An executor is the person appointed by a will to act on behalf of the estate of the will

maker (the "testator") upon his or her death. An executor is the legal personal

representative of a deceased person's estate. The appointment of an executor only

becomes effective after the death of the testator. After the testator dies, the person

named in the will as executor can decline or renounce the position, and if that is the

case should very quickly notify the probate court registry accordingly. There is no legal

obligation for that person to accept the appointment.

Executors "step into the shoes" of the deceased and have similar rights and powers to

wind up the personal affairs of the deceased. This may include continuing or filing

lawsuits to which the deceased was entitled to bring, making claims for wrongful death,

paying off creditors, or selling or disposing of assets not particularly gifted in the will,

among others. But the role of the executor is to resolve the testator's estate and to

distribute the estate to the beneficiaries or those otherwise entitled.

Sometimes, in England and Wales, a professional executor is named in the will – not a

family member but (for example) a solicitor, bank or other financial institution.

Professional executors will charge the estate for carrying out duties related to the

administration of the estate; this can leave the family facing additional and unexpected

costs. It is possible to get a professional executor to renounce their role meaning they

will have no part in dealing with the estate; or to reserve their power which means the

remaining executors will carry out the related duties, but without the involvement of the

professional executor.


When a person dies without a will then the legal personal representative is known as

the "administrator". This is commonly the closest relative, although that person can

renounce their right to be Administrator in which case the right moves to the next

closest relative. This often happens when parents or grandparents are first in line to

become the administrator but renounce their rights as they are old, don't have

knowledge of estate law and feel that someone else is better suited to the task.

The appointment of an administrator follows a codified list establishing priority

appointees. Classes of persons named higher on the list receive priority of appointment

to those lower on the list. Although appointees named in the will and relatives of the

deceased frequently receive priority over all others, creditors of the deceased and 'any

other citizen [of that jurisdiction]' may act as an administrator if there is some cognizable

reason or relationship to the estate. Alternatively, if no other person qualifies or no other

person accepts appointment, the court will appoint a representative from the local public

administrator's office.

Page 82 of 190

Probate Clause

A representative example of a complete probate clause, from the 14th century (or

earlier) onwards, added at the bottom of the office transcribed copy of a will is as

follows, taken from the will of Anthony Bathurst, 1697, PROB 11/438:

PROBATUM fuit huiusmodi testamentum apud Londinium coram venerabili et egregio

viro domino Richardo Raines, milite, legum doctore curiae praerogativae Cantuariensis

magistro custodis sive commissarii legitime constituti vicesimo tertio die mensis Junii

Anno Domini Millesimo Sexcenti Nonaginta Septimo juramento Mariae Bathurst relictae

et executricis in dicto testamento nominata cui commissa fuit administratio omnium et

singulorum bonorum, jurium et creditorum dicti defuncti de bene et fideliter administrando

eadem ad sancta Dei Evangelis jurat. Examinatur.

Translated literally as:

This will was proved at London before the worshipful Sir Richard Raines, knight, Doctor

of Laws, Master Keeper or Commissary of the Prerogative Court of Canterbury, lawfully

constituted, on the twenty third day of the month of June in the year of our Lord one

thousand six hundred and ninety seven, by the oath of Mary Bathurst, relict and executrix

named in the said will, to whom administration was granted of all and singular the goods,

rights and credits of the said deceased, sworn on the holy Gospel of God to well and

faithfully administer the same. It has been examined".

Page 83 of 190


The English noun "probate" derives directly from the Latin verb probare, to try, test,

prove, examine, more specifically from the verb's past participle nominative neuter

probatum, "having been proved". Historically during many centuries a paragraph in Latin

of standard format was written by scribes of the particular probate court below the

transcription of the will, commencing with the words (for example): Probatum Londini fuit

huismodi testamentum coram venerabili viro (name of approver) legum doctore curiae

prerogativae Cantuariensis... ("A testament of such a kind was proved at London in the

presence of the venerable man ..... doctor of law at the Prerogative Court of

Canterbury...") The earliest usage of the English word was in 1463, defined as "the

official proving of a will". The term "probative," used in the law of evidence, comes from

the same Latin root but has a different English usage.

Probate Process

Probate is a process of improvement that proves a will of a deceased person is valid, so

their property can in due course be retitled (US terminology) or transferred to

beneficiaries of the will. As with any legal proceeding, there are technical aspects to

probate administration:

Creditors must be notified and legal notices published.

Executors of the will must be guided in how and when to distribute assets and

how to take creditors' rights into account.

A Petition to appoint a personal representative may need to be filed and letters of

administration (often referred to as "letters testamentary") issued. A Grant of

Letters of Administration can be used as proof that the ‘Administrator' is entitled

to handle the assets.

Homestead property, which follows its own set of unique rules in states like

Florida, must be dealt with separately from other assets. In many common law

jurisdictions such as Canada, parts of the US, the UK, Australia and India, jointly

owned property passes automatically to the surviving joint owner separately from

any will, unless the equitable title is held as tenants in common.

There are time factors involved in filing and objecting to claims against the


There may be a lawsuit pending over the decedent's death or there may have

been pending suits that are now continuing. There may be separate procedures

required in contentious probate cases.

Real estate or other property may need to be sold to effect correct distribution of

assets pursuant to the will or merely to pay debts.

Page 84 of 190

Estate taxes, gift taxes or inheritance taxes must be considered if the estate

exceeds certain thresholds.

Costs of the administration including ordinary taxation such as income tax on

interest and property taxation is deducted from assets in the estate before

distribution by the executors of the will.

Other assets may simply need to be transferred from the deceased to his or her

beneficiaries, such as life insurance. Other assets may have pay on death or

transfer on death designations, which avoids probate.

The rights of beneficiaries must be respected, in terms of providing proper and

adequate notice, making timely distribution of estate assets, and otherwise

administering the estate properly and efficiently.

Local laws governing the probate process often depend on the value and complexity of

the estate. If the value of the estate is relatively small, the probate process may be

avoided. In some jurisdictions and/or at a certain threshold, probate must be applied for

by the Executor/Administrator or a Probate lawyer filing on their behalf.

Page 85 of 190

A probate lawyer offers services in probate court, and may be retained to open an

estate or offer service during the course of probate proceedings on behalf of the

administrator or executor of the estate.

Probate lawyers may also represent heirs, creditors and other parties who have a legal

interest in the outcome of the estate.

In common law jurisdictions, probate ("official proving of a will") is obtained by executors

of a will while letters of administration are granted where there are no executors.


In Australia, probate refers to the process of proving of the will of a deceased person

and also to a Grant of Probate, the legal document that is obtained.

There is a Supreme Court probate registry in each jurisdiction that deals with probate

applications. However, each State and Territory has slightly different laws and

processes in relation to probate. The main probate legislation is as follows:

In New South Wales, the Probate and Administration Act 1898 (NSW).

In Victoria, the Administration and Probate Act 1958 (VIC).

In Queensland, the Uniform Civil Procedure Rules 1999.

In Western Australia, the Non-contentious Probate Rules 1967 (WA).

In South Australia, the Administration and Probate Act 1919 (SA).

In Tasmania, the Administration and Probate Act 1935 (TAS).

In the ACT, the Administration and Probate Act 1929 (ACT).

In the Northern Territory, the Administration and Probate Act 1993 (NT).

Applying for a Grant of Probate

Only the executor(s) of a will can apply for a Grant of Probate. It is the duty of the

executor(s) of the will to obtain probate in a timely manner.

The executor(s) can apply for probate themselves (which is often done to reduce legal

fees) or be represented by a lawyer.

To obtain a grant of probate, there must have been a valid will and assets left by the

deceased person. Usually, asset holders require a Grant of Probate unless:

estate assets only consist of a small amount (usually under $50,000 for major

banks and lower thresholds for other financial institutions), and/or

jointly held assets (and does not consist of real estate in the deceased's name

sole or as tenant in common).

Page 86 of 190

Distributing the Estate

After probate is granted, the executor(s) is also responsible for distributing the assets in

accordance with the will. Some Australian jurisdictions require a notice of intended

distribution to be published before the estate is distributed.

United Kingdom

England and Wales

The main source of English law is the Wills Act

1837. Probate, as with the law of family

settlements (trusts), was handled by the Court of

Chancery. When that court was abolished in 1873,

their jurisdiction passed to the Chancery Division of

the High Court.


When someone dies, the term "probate" usually

refers to the legal process whereby the deceased's

assets are collected together and, following various

legal and fiscal steps and processes, eventually

distributed to the beneficiaries of the estate.

Technically the term has a particular legal

meaning, but it is generally used within the English

legal profession as a term to cover all procedures

concerned with the administration of a deceased

person's estate. As a legal discipline the subject is

vast and it is only possible in an article such as this

to cover the most common situations, but even that

only scratches the surface.


All legal procedures concerned with probate (as defined above) come within the

jurisdiction of the Chancery Division of the High Court of Justice by virtue of Section 25

of the Senior Courts Act 1981.

The High Court is, therefore, the only body able to issue documents that confer on

someone the ability to deal with a deceased person's estate—close bank accounts or

sell property. It is the production and issuing of these documents, known collectively as

grants of representation, that is the primary function of the Probate Registries, which are

part of the High Court, which the general public and probate professionals alike apply to

for grants of representation.

Page 87 of 190

Grants of Representation

There are many different types of grants of representation, each one designed to cover

a particular circumstance. The most common cover the two most common situations—

either the deceased died leaving a valid will or they did not. If someone left a valid will, it

is more than likely that the grant is a grant of probate. If there was no will, the grant

required is likely to be a grant of administration. There are many other grants that can

be required in certain circumstances, and many have technical Latin names, but the

general public is most likely to encounter grants of probate or administration. If an

estate has a value of less than £5,000.00 or if all assets are held jointly and therefore

pass by survivorship, for example to a surviving spouse, a grant is not usually required.

Applying for a Grant

A will includes the appointment of Executor(s). One of their duties is to apply to the

Probate Division of the High Court for a Grant of Probate. An Executor can apply to a

local probate registry for a grant themselves but most people use a probate practitioner

such as a solicitor. If an estate is small, some banks and building societies allow the

deceased's immediate family to close accounts without a grant, but there usually must

be less than about £15,000 in the account for this to be permitted.

Asset Distribution

The persons who are actually given the job of dealing with the deceased's assets are

called "personal representatives" or "PRs". If the deceased left a valid will, the PRs are

the "executors" appointed by the will—"I appoint X and Y to be my executors etc." If

there is no will or if the will does not contain a valid appointment of executors (for

example if they are all dead) then the PRs are called "administrators". So, executors

obtain a grant of probate that permits them to deal with the estate and administrators

obtain a grant of administration that lets them do the same. Apart from that distinction,

the function of executors and administrators is exactly the same.

Probate Requirements

A requirement of the Probate process is the valuation of the Estate.

Intestacy Probate Process

For an explanation of the intestacy probate process in England and Wales, see

Administration of an estate on death.

Contesting the Circumstances of a Will's Creation

An applicant may challenge the validity of a person's will after they have died by lodging

a Caveat and requisite fee at the probate registry. This prevents anyone from obtaining

a grant of probate for that person's estate for six months, which the applicant can shortly

Page 88 of 190

efore that point apply to extend. A caveat is not be used to extend the time for bringing

a claim for financial provision from a person's estate, such as under the Inheritance

(Provision for Family and Dependants) Act 1975. The court can order costs against an

applicant using a caveat for that purpose.

To challenge the caveat, the intended executor sends a completed “Warning” form to

the probate registry. This document will be sent to the person who entered the caveat,

and for the caveat to remain, they will have to enter an Appearance at the probate

registry. This is not a physical appearance; it is a further document to send to the

probate registry within eight days of receiving the warning.


The equivalent to probate in Scotland is confirmation, although there are considerable

differences between the two systems because of the separate Scottish legal system.

Appointment as an executor does not in itself give confer authority to ingather and

distribute the estate of the deceased; the executor(s) must make an application to the

sheriff court for a grant of confirmation. This is a court order authorizing them to "uplift,

receive, administer and dispose of the estate and to act in the office of executor". A

grant of confirmation gives the executor(s) authority to uplift money or other property

belonging to a deceased person (e.g. from a bank), and to administer and distribute it

according to either the deceased's will or the law on intestacy.

Page 89 of 190

United States

Most estates in the United States include property that is subject to probate

proceedings. If the property of an estate is not automatically devised to a surviving

spouse or heir through principles of joint ownership or survivorship, or otherwise by

operation of law, and was not transferred to a trust during the decedent's lifetime, it is

generally necessary to "probate the estate", whether or not the decedent had a valid

will. For example, life insurance and retirement accounts with properly completed

beneficiary designations should avoid probate, as will most bank accounts titled jointly

or made payable on death.

Some states have procedures that allow for the transfer of assets from small estates

through affidavit or through a simplified probate process. For example, California has a

“Small Estate Summary Procedure” to allow the summary transfer of a decedent's asset

without a formal Probate proceeding. The dollar limit by which the Small Estate

procedure can be effectuated is $150,000.

For estates that do not qualify for simplified proceedings, a court having jurisdiction of

the decedent's estate (a probate court) supervises the probate process to ensure

administration and disposition of the decedent's property is conducted in accord with the

law of that jurisdiction, and in a manner consistent with decedent's intent as manifested

in his will. Distribution of certain estate assets may require selling assets, including real


Avoiding Probate

Some of the decedent's property may never enter probate because it passes to another

person contractually, such as the death proceeds of an insurance policy insuring the

decedent or bank or retirement account that names a beneficiary or is owned as

"payable on death", and property (sometimes a bank or brokerage account) legally held

as "jointly owned with right of survivorship".

Property held in a revocable or irrevocable trust created during the grantor's lifetime

also avoids probate. In these cases in the U.S. no court action is involved and the

property is distributed privately, subject to estate taxes.

The best way to determine which assets are probate assets (requiring administration) is

to determine whether each asset passes outside of probate.

In jurisdictions in the U.S. that recognize a married couple's property as tenancy by the

entireties, if a spouse (or partner in Hawaii) dies intestate (owning property without a

will), the portion of his/her estate so titled passes to a surviving spouse without a


Page 90 of 190

Steps of Probate

If the decedent dies without a will, known as intestacy, the estate is distributed

according to the laws of the state where the decedent resided.

If the decedent died with a will, the will usually names an executor (personal

representative), who carries out the instructions laid out in the will. The executor

marshals the decedent's assets. If there is no will, or if the will does not name an

executor, the probate court can appoint one. Traditionally, the representative of an

intestate estate is called an administrator. If the decedent died with a will, but only a

copy of the will can be located, many states allow the copy to be probated, subject to

the rebuttable presumption that the testator destroyed the will before death.

In some cases, where the

person named as executor

cannot administer the

probate, or wishes to have

someone else do so,

another person is named

administrator. An executor

or an administrator may

receive compensation for

his service. Additionally,

beneficiaries of an estate

may be able to remove the

appointed executor if he or

she is not capable of

properly fulfilling his or her


The representative of a testate estate who is someone other than the executor named

in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin

cum testamento annexo.) The generic term for executors or administrators is personal


The probate court may require that the executor provide a fidelity bond, an insurance

policy in favor of the estate to protect against possible abuse by the executor.

After opening the probate case with the court, the personal representative inventories

and collects the decedent's property. Next, he pays any debts and taxes, including

estate tax in the United States, if the estate is taxable at the federal or state level.

Finally, he distributes the remaining property to the beneficiaries, either as instructed in

the will, or under the intestacy laws of the state.

A party may challenge any aspect of the probate administration, such as a direct

challenge to the validity of the will, known as a will contest, a challenge to the status of

Page 91 of 190

the person serving as personal representative, a challenge as to the identity of the

heirs, and a challenge to whether the personal representative is properly administering

the estate. Issues of paternity can be disputed among the potential heirs in intestate

estates, especially with the advent of inexpensive DNA profiling techniques. In some

situations, however, even biological heirs can be denied their inheritance rights, while

non-biological heirs can be granted inheritance rights.

The personal representative must understand and abide by the fiduciary duties, such as

a duty to keep money in interest bearing account and to treat all beneficiaries equally.

Not complying with the fiduciary duties may allow interested persons to petition for the

removal of the personal representative and hold the personal representative liable for

any harm to the estate.

Page 92 of 190

VII. References

1. https://en.wikipedia.org/wiki/Inheritance

2. https://en.wikipedia.org/wiki/Inheritance_tax

3. https://en.wikipedia.org/wiki/Will_and_testament

4. https://en.wikipedia.org/wiki/Trust_law

5. https://en.wikipedia.org/wiki/Estate_(law)

6. https://en.wikipedia.org/wiki/Estate_planning

7. https://en.wikipedia.org/wiki/Probate

8. www.monmouthcountyparks.com/Documents/14/

9. https://www.legalzoom.com/pdf/estate-planning-guide.pdf

10. https://www.irs.gov/pub/irs-tege/eotopica03.pdf

Page 93 of 190








































Page 94 of 190








































Page 95 of 190

Page 96 of 190

Attachment A

A Citizen’s Guide to Wills,

Trusts and Estates

Page 97 of 190

Page 98 of 190

Page 99 of 190

Page 100 of 190

Page 101 of 190

Page 102 of 190

Page 103 of 190

Page 104 of 190

Page 105 of 190

Page 106 of 190

Page 107 of 190

Page 108 of 190

Page 109 of 190

Page 110 of 190

Page 111 of 190

Page 112 of 190

Page 113 of 190

Page 114 of 190

Attachment B

Trusts: Common Law

and IRC 501(c)(3) and 4947

Page 115 of 190

Page 116 of 190

Page 117 of 190

Page 118 of 190

Page 119 of 190

Page 120 of 190

Page 121 of 190

Page 122 of 190

Page 123 of 190

Page 124 of 190

Page 125 of 190

Page 126 of 190

Attachment C

The Basics of Estate Planning

Page 127 of 190

Page 128 of 190

Page 129 of 190

Page 130 of 190

Page 131 of 190

Page 132 of 190

Page 133 of 190

Page 134 of 190

Page 135 of 190

Page 136 of 190

Page 137 of 190

Page 138 of 190

Page 139 of 190

Page 140 of 190

Page 141 of 190

Page 142 of 190

Page 143 of 190

Page 144 of 190

Page 145 of 190

Page 146 of 190

Page 147 of 190

Page 148 of 190

Page 149 of 190

Page 150 of 190

Page 151 of 190

Page 152 of 190

Page 153 of 190

Page 154 of 190

Page 155 of 190

Page 156 of 190

Page 157 of 190

Page 158 of 190

Page 159 of 190

Page 160 of 190

Page 161 of 190

Page 162 of 190

Page 163 of 190

Page 164 of 190

Advocacy Foundation Publishers

Page 165 of 190

Advocacy Foundation Publishers

The e-Advocate Quarterly

Page 166 of 190

Issue Title Quarterly

Vol. I 2015 The Fundamentals


The ComeUnity ReEngineering

Project Initiative

Q-1 2015

II The Adolescent Law Group Q-2 2015


Landmark Cases in US

Juvenile Justice (PA)

Q-3 2015

IV The First Amendment Project Q-4 2015

Vol. II 2016 Strategic Development

V The Fourth Amendment Project Q-1 2016


Landmark Cases in US

Juvenile Justice (NJ)

Q-2 2016

VII Youth Court Q-3 2016


The Economic Consequences of Legal


Q-4 2016

Vol. III 2017 Sustainability

IX The Sixth Amendment Project Q-1 2017


The Theological Foundations of

US Law & Government

Q-2 2017

XI The Eighth Amendment Project Q-3 2017


The EB-5 Investor

Immigration Project*

Q-4 2017

Vol. IV 2018 Collaboration

XIII Strategic Planning Q-1 2018


The Juvenile Justice

Legislative Reform Initiative

Q-2 2018

XV The Advocacy Foundation Coalition Q-3 2018

Page 167 of 190


for Drug-Free Communities

Landmark Cases in US

Juvenile Justice (GA)

Q-4 2018

Page 168 of 190

Issue Title Quarterly

Vol. V 2019 Organizational Development

XVII The Board of Directors Q-1 2019

XVIII The Inner Circle Q-2 2019

XIX Staff & Management Q-3 2019

XX Succession Planning Q-4 2019

XXI The Budget* Bonus #1

XXII Data-Driven Resource Allocation* Bonus #2

Vol. VI 2020 Missions

XXIII Critical Thinking Q-1 2020


The Advocacy Foundation

Endowments Initiative Project

Q-2 2020

XXV International Labor Relations Q-3 2020

XXVI Immigration Q-4 2020

Vol. VII 2021 Community Engagement


The 21 st Century Charter Schools


Q-1 2021

XXVIII The All-Sports Ministry @ ... Q-2 2021

XXIX Lobbying for Nonprofits Q-3 2021



Advocacy Foundation Missions -


Advocacy Foundation Missions -


Q-4 2021


Page 169 of 190


2022 ComeUnity ReEngineering


The Creative & Fine Arts Ministry

@ The Foundation

Q-1 2022

XXXIII The Advisory Council & Committees Q-2 2022


The Theological Origins

of Contemporary Judicial Process

Q-3 2022

XXXV The Second Chance Ministry @ ... Q-4 2022

Vol. IX 2023 Legal Reformation

XXXVI The Fifth Amendment Project Q-1 2023

XXXVII The Judicial Re-Engineering Initiative Q-2 2023


The Inner-Cities Strategic

Revitalization Initiative

Q-3 2023

XXXVIX Habeas Corpus Q-4 2023

Vol. X 2024 ComeUnity Development


The Inner-City Strategic

Revitalization Plan

Q-1 2024

XXXVXI The Mentoring Initiative Q-2 2024

XXXVXII The Violence Prevention Framework Q-3 2024

XXXVXIII The Fatherhood Initiative Q-4 2024

Vol. XI 2025 Public Interest

XXXVXIV Public Interest Law Q-1 2025

L (50) Spiritual Resource Development Q-2 2025

Page 170 of 190


Nonprofit Confidentiality

In The Age of Big Data

Q-3 2025

LII Interpreting The Facts Q-4 2025

Vol. XII 2026 Poverty In America


American Poverty

In The New Millennium

Q-1 2026

LIV Outcome-Based Thinking Q-2 2026

LV Transformational Social Leadership Q-3 2026

LVI The Cycle of Poverty Q-4 2026

Vol. XIII 2027 Raising Awareness

LVII ReEngineering Juvenile Justice Q-1 2027

LVIII Corporations Q-2 2027

LVIX The Prison Industrial Complex Q-3 2027

LX Restoration of Rights Q-4 2027

Vol. XIV 2028 Culturally Relevant Programming

LXI Community Culture Q-1 2028

LXII Corporate Culture Q-2 2028

LXIII Strategic Cultural Planning Q-3 2028


The Cross-Sector/ Coordinated

Service Approach to Delinquency


Q-4 2028

Page 171 of 190

Vol. XV 2029 Inner-Cities Revitalization




Part I – Strategic Housing


(The Twenty Percent Profit Margin)

Part II – Jobs Training, Educational


and Economic Empowerment

Part III - Financial Literacy

and Sustainability

Q-1 2029

Q-2 2029

Q-3 2029

LXVII Part IV – Solutions for Homelessness Q-4 2029


The Strategic Home Mortgage



Vol. XVI 2030 Sustainability

LXVIII Social Program Sustainability Q-1 2030


The Advocacy Foundation

Endowments Initiative

Q-2 2030

LXX Capital Gains Q-3 2030

LXXI Sustainability Investments Q-4 2030

Vol. XVII 2031 The Justice Series

LXXII Distributive Justice Q-1 2031

LXXIII Retributive Justice Q-2 2031

LXXIV Procedural Justice Q-3 2031

LXXV (75) Restorative Justice Q-4 2031

LXXVI Unjust Legal Reasoning Bonus

Page 172 of 190

Vol. XVIII 2032 Public Policy

LXXVII Public Interest Law Q-1 2032

LXXVIII Reforming Public Policy Q-2 2032

LXXVIX ... Q-3 2032

LXXVX ... Q-4 2032

Page 173 of 190

The e-Advocate Monthly Review


Transformational Problem Solving January 2018

The Advocacy Foundation February 2018

Opioid Initiative

Native-American Youth March 2018

In the Juvenile Justice System

Barriers to Reducing Confinement April 2018

Latino and Hispanic Youth May 2018

In the Juvenile Justice System

Social Entrepreneurship June 2018

The Economic Consequences of

Homelessness in America S.Ed – June 2018

African-American Youth July 2018

In the Juvenile Justice System

Gang Deconstruction August 2018

Social Impact Investing September 2018

Opportunity Youth: October 2018

Disenfranchised Young People

The Economic Impact of Social November 2018

of Social Programs Development

Gun Control December 2018


The U.S. Stock Market January 2019

Prison-Based Gerrymandering February 2019

Literacy-Based Prison Construction March 2019

Children of Incarcerated Parents April 2019

Page 174 of 190

African-American Youth in The May 2019

Juvenile Justice System

Racial Profiling June 2019

Mass Collaboration July 2019

Concentrated Poverty August 2019

De-Industrialization September 2019

Overcoming Dyslexia October 2019

Overcoming Attention Deficit November 2019

The Gift of Adversity December 2019


The Gift of Hypersensitivity January 2020

The Gift of Introspection February 2020

The Gift of Introversion March 2020

The Gift of Spirituality April 2020

The Gift of Transformation May 2020

Property Acquisition for

Organizational Sustainability June 2020

Investing for Organizational

Sustainability July 2020

Biblical Law & Justice TLFA August 2020

Gentrification AF September 2020

Environmental Racism NpA October 2020

Law for The Poor AF November 2020

Page 175 of 190


Biblically Responsible Investing TLFA – January 2021

International Criminal Procedure LMI – February 2021

Spiritual Rights TLFA – March 2021

The Theology of Missions TLFA – April 2021

Legal Evangelism, Intelligence,

Reconnaissance & Missions LMI – May 2021

The Law of War LMI – June 2021

Generational Progression AF – July 2021

Predatory Lending AF – August 2021

The Community Assessment Process NpA – September 2021

Accountability NpA – October 2021

Nonprofit Transparency NpA – November 2021

Redefining Unemployment AF – December 2021


21 st Century Slavery AF – January 2022

Acquiesce to Righteousness TLFA – February 2022

ComeUnity Capacity-Building NpA – March 2022

Nonprofit Organizational Assessment NpA – April 2022

Debt Reduction AF – May 2022

Case Law, Statutory Law,

Municipal Ordinances and Policy ALG – June 2022

Organizational Dysfunction NpA - July 2022

Institutional Racism Collab US – August 2022

Page 176 of 190

The Ripple Effects of Ministry TLFA - September 2022

The Sarbanes-Oxley Act of 2002 NpA – October 2022

Organized Crime (In The New Millennium) ALG – May 2022

Nonprofit Marketing NpA – June 2022

The Uniform Code of Military Justice AF – July 2022

Community Policing NpA – August 2022

Wills, Trusts & Estates AF – September 2022

Page 177 of 190

The e-Advocate Quarterly

Special Editions

Crowdfunding Winter-Spring 2017

Social Media for Nonprofits October 2017

Mass Media for Nonprofits November 2017

The Opioid Crisis in America: January 2018

Issues in Pain Management

The Opioid Crisis in America: February 2018

The Drug Culture in the U.S.

The Opioid Crisis in America: March 2018

Drug Abuse Among Veterans

The Opioid Crisis in America: April 2018

Drug Abuse Among America’s


The Opioid Crisis in America: May 2018


The Economic Consequences of June 2018

Homelessness in The US

The Economic Consequences of July 2018

Opioid Addiction in America

Page 178 of 190

The e-Advocate Journal

of Theological Jurisprudence

Vol. I - 2017

The Theological Origins of Contemporary Judicial Process

Scriptural Application to The Model Criminal Code

Scriptural Application for Tort Reform

Scriptural Application to Juvenile Justice Reformation

Vol. II - 2018

Scriptural Application for The Canons of Ethics

Scriptural Application to Contracts Reform

& The Uniform Commercial Code

Scriptural Application to The Law of Property

Scriptural Application to The Law of Evidence

Page 179 of 190

Legal Missions International

Page 180 of 190

Issue Title Quarterly

Vol. I 2015



God’s Will and The 21 st Century

Democratic Process

The Community

Engagement Strategy

Q-1 2015

Q-2 2015

III Foreign Policy Q-3 2015


Public Interest Law

in The New Millennium

Q-4 2015

Vol. II 2016

V Ethiopia Q-1 2016

VI Zimbabwe Q-2 2016

VII Jamaica Q-3 2016

VIII Brazil Q-4 2016

Vol. III 2017

IX India Q-1 2017

X Suriname Q-2 2017

XI The Caribbean Q-3 2017

XII United States/ Estados Unidos Q-4 2017

Vol. IV 2018

XIII Cuba Q-1 2018

XIV Guinea Q-2 2018

XV Indonesia Q-3 2018

XVI Sri Lanka Q-4 2018

Page 181 of 190

Vol. V 2019

XVII Russia Q-1 2019

XVIII Australia Q-2 2019

XIV South Korea Q-3 2019

XV Puerto Rico Q-4 2019

Issue Title Quarterly

Vol. VI 2020

XVI Trinidad & Tobago Q-1 2020

XVII Egypt Q-2 2020

XVIII Sierra Leone Q-3 2020

XIX South Africa Q-4 2020

XX Israel Bonus

Vol. VII 2021

XXI Haiti Q-1 2021

XXII Peru Q-2 2021

XXIII Costa Rica Q-3 2021

XXIV China Q-4 2021

XXV Japan Bonus

Vol VIII 2022

XXVI Chile Q-1 2022

Page 182 of 190

The e-Advocate Juvenile Justice Report


Vol. I – Juvenile Delinquency in The US

Vol. II. – The Prison Industrial Complex

Vol. III – Restorative/ Transformative Justice

Vol. IV – The Sixth Amendment Right to The Effective Assistance of Counsel

Vol. V – The Theological Foundations of Juvenile Justice

Vol. VI – Collaborating to Eradicate Juvenile Delinquency

Page 183 of 190

The e-Advocate Newsletter

Genesis of The Problem

Family Structure

Societal Influences

Evidence-Based Programming

Strengthening Assets v. Eliminating Deficits

2012 - Juvenile Delinquency in The US

Introduction/Ideology/Key Values

Philosophy/Application & Practice

Expungement & Pardons

Pardons & Clemency

Examples/Best Practices

2013 - Restorative Justice in The US

2014 - The Prison Industrial Complex

25% of the World's Inmates Are In the US

The Economics of Prison Enterprise

The Federal Bureau of Prisons

The After-Effects of Incarceration/Individual/Societal

The Fourth Amendment Project

The Sixth Amendment Project

The Eighth Amendment Project

The Adolescent Law Group

2015 - US Constitutional Issues In The New Millennium

Page 184 of 190

2018 - The Theological Law Firm Academy

The Theological Foundations of US Law & Government

The Economic Consequences of Legal Decision-Making

The Juvenile Justice Legislative Reform Initiative

The EB-5 International Investors Initiative

2017 - Organizational Development

The Board of Directors

The Inner Circle

Staff & Management

Succession Planning

Bonus #1 The Budget

Bonus #2 Data-Driven Resource Allocation

2018 - Sustainability

The Data-Driven Resource Allocation Process

The Quality Assurance Initiative

The Advocacy Foundation Endowments Initiative

The Community Engagement Strategy

2019 - Collaboration

Critical Thinking for Transformative Justice

International Labor Relations


God's Will & The 21st Century Democratic Process

The Community Engagement Strategy

The 21st Century Charter Schools Initiative

2020 - Community Engagement

Page 185 of 190


The Nonprofit Advisors Group Newsletters

The 501(c)(3) Acquisition Process

The Board of Directors

The Gladiator Mentality

Strategic Planning


501(c)(3) Reinstatements

The Collaborative US/ International Newsletters

How You Think Is Everything

The Reciprocal Nature of Business Relationships

Accelerate Your Professional Development

The Competitive Nature of Grant Writing

Assessing The Risks

Page 186 of 190

Page 187 of 190

About The Author

John C (Jack) Johnson III

Founder & CEO – The Advocacy Foundation, Inc.


Jack was educated at Temple University, in Philadelphia, Pennsylvania and Rutgers

Law School, in Camden, New Jersey. In 1999, he moved to Atlanta, Georgia to pursue

greater opportunities to provide Advocacy and Preventive Programmatic services for atrisk/

at-promise young persons, their families, and Justice Professionals embedded in the

Juvenile Justice process in order to help facilitate its transcendence into the 21 st Century.

There, along with a small group of community and faith-based professionals, “The Advocacy Foundation, Inc." was conceived

and developed over roughly a thirteen year period, originally chartered as a Juvenile Delinquency Prevention and Educational

Support Services organization consisting of Mentoring, Tutoring, Counseling, Character Development, Community Change

Management, Practitioner Re-Education & Training, and a host of related components.

The Foundation’s Overarching Mission is “To help Individuals, Organizations, & Communities Achieve Their Full Potential”, by

implementing a wide array of evidence-based proactive multi-disciplinary "Restorative & Transformative Justice" programs &

projects currently throughout the northeast, southeast, and western international-waters regions, providing prevention and support

services to at-risk/ at-promise youth, to young adults, to their families, and to Social Service, Justice and Mental

Health professionals” in each jurisdiction served. The Foundation has since relocated its headquarters to Philadelphia,

Pennsylvania, and been expanded to include a three-tier mission.

In addition to his work with the Foundation, Jack also served as an Adjunct Professor of Law & Business at National-Louis

University of Atlanta (where he taught Political Science, Business & Legal Ethics, Labor & Employment Relations, and Critical

Thinking courses to undergraduate and graduate level students). Jack has also served as Board President for a host of wellestablished

and up & coming nonprofit organizations throughout the region, including “Visions Unlimited Community

Development Systems, Inc.”, a multi-million dollar, award-winning, Violence Prevention and Gang Intervention Social Service

organization in Atlanta, as well as Vice-Chair of the Georgia/ Metropolitan Atlanta Violence Prevention Partnership, a state-wide

300 organizational member violence prevention group led by the Morehouse School of Medicine, Emory University and The

Original, Atlanta-Based, Martin Luther King Center.

Attorney Johnson’s prior accomplishments include a wide-array of Professional Legal practice areas, including Private Firm,

Corporate and Government postings, just about all of which yielded significant professional awards & accolades, the history and

chronology of which are available for review online at LinkedIn.com. Throughout his career, Jack has served a wide variety of

for-profit corporations, law firms, and nonprofit organizations as Board Chairman, Secretary, Associate, and General Counsel

since 1990.


Clayton County Youth Services Partnership, Inc. – Chair; Georgia Violence Prevention Partnership, Inc – Vice Chair; Fayette

County NAACP - Legal Redress Committee Chairman; Clayton County Fatherhood Initiative Partnership – Principal

Investigator; Morehouse School of Medicine School of Community Health Feasibility Study Steering Committee; Atlanta

Violence Prevention Capacity Building Project Partner; Clayton County Minister’s Conference, President 2006-2007; Liberty In

Life Ministries, Inc. Board Secretary; Young Adults Talk, Inc. Board of Directors; ROYAL, Inc Board of Directors; Temple

University Alumni Association; Rutgers Law School Alumni Association; Sertoma International; Our Common Welfare Board of

Directors President 2003-2005; River’s Edge Elementary School PTA (Co-President); Summerhill Community Ministries

(Winter Sports Athletic Director); Outstanding Young Men of America; Employee of the Year; Academic All-American -

Basketball; Church Trustee; Church Diaconate Ministry (Walking Deacon); Pennsylvania Commission on Crime & Delinquency


Page 188 of 190


Page 189 of 190

Page 190 of 190

More magazines by this user
Similar magazines