Christopher S. Mulvaney,

Attorney and Counselor-at-Law

---

THIS WEBSITE INCLUDES GENERAL INFORMATION & THE OPINIONS OF CHRISTOPHER S. MULVANEY. IT IS INTENDED TO STIMULATE A BASIS FOR QUESTIONS RELATED TO YOUR PARTICULAR FACTUAL CIRCUMSTANCES — BEFORE YOU ACT.  THIS WEBSITE DOES NOT CONSTITUTE LEGAL ADVICE. IF YOU WANT LEGAL ADVICE, PLEASE MAKE A ZOOM APPOINTMENT TO SPEAK WITH ME.

CONTACT CHRISTOPHER S. MULVANEY FORM

DISCLAIMER:

The use of email or this form for communication with MULVANEY LAW OFFICE, PLLC does not establish an Attorney-Client Relationship. If you don’t think I have responded, please check your spam folder. Time-sensitive information should not be sent through this Form or through email. Sensitive information can be uploaded to an encrypted Dropbox folder in your client file. Google Review Link Yelp Review Link

---

Gonzaga University School of Law – Spokane, Washington – Class of 2002 – Cum Laude The Latin phrase “Deo patriae, scientiis, artibus” translates to “For God and country through sciences and arts”.  The initials A.M.D.G. on the seal of Gonzaga Law School stand for Ad Majorem Dei Gloriam, which is Latin for “For the Greater Glory of God” the Motto of the Society of Jesus (Jesuits): a Catholic religious order founded by St. Ignatius of Loyola.

_________________________

In Washington State, disinheriting an adult child is possible. Doing so should be done carefully to minimize the chances of litigation.

1. Explicitly State Intent in Your Trust:  (A Last Will and Testament should not be used for disinheritance because Probate of a Will requires an inventory and notice to all living children (even if they receive nothing). Probate also provides a statutory right to a Will Contest.)

Warning: Do not do anything stupid like give $200. That is not enough to deter a Will Contest. Also, if you have been foolish enough to execute a Will that gets sent to a disinherited child with the inventory of assets and debts of the Estate, counsel for the Estate must communicate facts indicating the competence of the Testator (the person who makes a Will) to execute it. If not, an expensive Will Contest could be initiated. This is what almost happened in the Estate of my father who was a doctor who passed away at age 83 in December of 2024. He was a smart man who was stupid with his Estate. He executed four Wills unnecessarily; disinheriting myself and my sister except for $200 each which we would not accept anyway. I wouldn’t know about these Wills or the circumstances surrounding the Execution or the letters the lawyer had between my father and myself from 1989, except that I filed a Bar Complaint against the inexperienced lawyer who filed the Probate for no reason other than fees because my sister took money from my mother to talk with a lawyer about a Will Contest. I wasn’t about to let my mother fund a losing lawsuit, so I told the lawyer my sister was going to sue her unless she explained to me why my sister cannot win. The lawyer didn’t notice me on the Proabate, just my sister. No inventory or money was ever sent to either of us. The lawyer didn’t even do a minimally competent job, and took money for four Wills and the Probate – none of which were needed at all.

Real Estate can be transferred with a Transfer on Death Deed; Retirement and Brokerage accounts can be transferred with Beneficiary Designations. Bank accounts under $100,000 can be transferred by Small Estate Affidavit; Vehicles can be transferred buy Department of Licensing Affidavit. The medical practice was already sold with an arrangement by which my father continued to work in the practice with considerable assistance from a physician’s assistant. All of these transfers are private with no Probate and no notice to beneficiaries. There was no reason in the world for my father’s Estate to be Probated except to provide fees for nothing to the lawyer who filed it and to hurt my sister to the point of wanting to litigate. The lawyer took money to do an incompetent job that didn’t need to be done, and was hurtful to my sister. If you must disinherit a child, please do it properly.

• Identify the Child: Clearly name the adult child in the Trust.
• Use Clear Language: State the intention to disinherit them directly, leaving no room for misinterpretation.
• Example: “[Child’s Full Name], born [Child’s Date of Birth], [Child’s Sex], is intentionally disinherited from any share of my estate. They shall receive nothing under this Trust”. 

2. Avoid Relying on Omission Alone:

• Simply omitting the child’s name from the Trust could lead to a challenge, claiming the omission was a mistake.
• A judge might assume the exclusion was unintentional and award the child a share. 

3. No-Contest Clause: 

• This clause states that if any beneficiary contests the Trust and loses, they forfeit any inheritance they would have otherwise received.
• However, in Washington, no-contest clauses are not enforced if the challenger has probable cause (legitimate grounds) for contesting the Trust (e.g., fraud, undue influence). 

4. Do Not Leave a Nominal Gift:  It is tacky and ineffective.

5. Keep Your Trust Updated: 

• Regularly review and update your Trust to ensure it reflects your current intentions, especially after significant life events like marriage, divorce, or the birth or death of a child. 
• A Trust can also be used to leave assets to grandchildren, bypassing the disinherited child entirely. 

Important Considerations:

• Undue Influence: Be aware that a Trust can be challenged based on claims of undue influence. This happens when someone pressures or manipulates the person creating the Trust to make decisions that benefit the influencer. Documenting reasoning and actions to show independent decision-making can be helpful.
•  
• Testamentary Capacity: The person creating the Trust must have the mental capacity to understand its consequences and the extent of the estate. Specifically, a person must know whether or not they are married and how many children they have.
•  
• Minor Children: It is not possible to disinherit minor children, as there is a legal obligation to support them. 

Last Wills and Testaments have a rich history, dating back to ancient civilizations like Egypt and Rome, evolving as a means to distribute property and ensure family’s well-being after death. Their decrease in importance is due to their obsolescence, and a corresponding decline in their creation by the public, with a majority of adults today not having a Will. This is driven by societal shifts and the growth of other Estate planning tools, like Living Trusts, which offer alternatives to traditional Wills and avoiding the Probate process. 

I heard a Probate Judge say in open Court: “My job is spreading misery; If anyone leaves happy I have failed.”

Do you really want to go there?

A “Last Will and Testament” was originally two separate documents in medieval England: a Will for Real Property and a Testament for Personal Property. The terms were combined into a single document over time as legal systems evolved and merged these concepts. The consolidation was solidified following the Norman conquest of England in 1066, as French civil law blended with English common law. 

The medieval distinction

Will: In Old English, a “Will” was the legal document that transferred a person’s Real Property—their land and buildings—to designated heirs upon death. Because real Estate was a foundation of the Feudal System, its inheritance was governed by English Common Law. 

Testament: A “Testament” derived from the French and Latin word for “to witness” and was the document that conveyed Personal Property, or “Chattels”. This included movable assets like money, jewelry, and furniture. Since the Church oversaw matters of personal property, Testaments fell under the jurisdiction of Ecclesiastical Courts. 

The Norman conquest and combination

After the Norman invasion, the legal systems began to integrate for greater clarity and efficiency. The terms “Will” and “Testament” were often used together, a legal practice known as a doublet, to ensure that the document covered both types of property. 

Modern practice

Today, the distinction between a Will and a testament is obsolete. A single legal document, commonly called a Will or a Last Will and Testament, covers the distribution of all property. Legal professionals continue to use the longer, more traditional phrase “Last Will and Testament,” but there is no legal difference between a “Will” and a “Last Will and Testament”. 

History of Last Wills and Testaments

• Ancient Origins: The concept of directing one’s assets after death can be traced to ancient Egypt (around 2500 BCE) (4,500 years ago) and was formalized in ancient Rome, where Wills were used to protect family legacies. and avoid financial ruin.  Last Wills and Testaments in ancient Egypt were legally binding documents used for Estate planning, demonstrating a sophisticated legal system that predates Roman and Greek practices. Unlike the strict hereditary laws of many ancient societies, Egyptian law allowed individuals to create a written declaration of intent, known as an imyt-pr or “house document,” to override the customary order of succession. These documents show many similarities to modern Wills, including the appointment of witnesses and guardians. 

How they were drafted and used

Legal standing

• Alternative to customary inheritance: Egyptian law allowed for two systems of inheritance: a default customary order of succession and a written declaration of intent. The written Will overruled the customary law, which typically favored the eldest son.
• Protection against contest: A written imyt-pr was a powerful tool to protect a Testator’s wishes from being challenged. For example, a childless husband could use an imyt-pr to grant property to his wife, protecting her inheritance from his male relatives. 

Drafting and format

• Medium: Wills were inscribed on papyrus, with the earliest known example dating to 1797 BCE. They were also sometimes carved onto tomb walls.
• Witnesses: The creation of a Will required witnesses, ensuring its validity. The oldest known Will, belonging to Ankh-ren, was attested by two witnesses.

The will of Ankr-ren, the alleged oldest known will from 1797 B.C., was a document detailing the transfer of his entire estate to his brother, Uah, with the stipulation that Uah was not to demolish the houses he received. The document also included a prohibition against Uah removing or altering any property that was part of the inheritance. 

Details of the will 

• Testator: Ankh-ren (also spelled Ankr-ren), who identified himself as a servant of the superintendent of works on the pyramids.
• Beneficiary: Uah, his brother.
• Property: All of his property.
• Stipulations:
  • Uah was forbidden from demolishing any of the houses that Ankr-ren Willed to him.
  • Uah was forbidden from altering or removing any property included in the Will.
• Witnesses: Two witnesses were present for the Will.

Significance 

• The will is significant because it is the oldest known example of a will, predating other Wills by nearly 2,000 years, and demonstrates that estate planning practices were already established in ancient Egypt.
• It shows that Ankr-ren had the autonomy to give his property to whomever he chose.

• Registry: Copies of the Will were sometimes registered with an official office to ensure it was properly administered. 

Modern Will registries, like the U.S. Will Registry established in 1997, are national databases for finding missing wills, but the concept of recording wills for public or archival access has roots in ancient times, where wills were used to ensure proper distribution of property and were often recorded in court or public archives as a public record, as seen with the UK’s Principal Probate Registry since 1858. 

Ancient and Historical Roots

• Ancient Civilizations:.The practice of using wills to distribute property dates back to ancient civilizations, such as in ancient Rome, where wills were used to protect a person’s legacy and family. 
• Public and Archival Records:.Throughout history, wills were frequently recorded and stored in public records, often in court or archives, to ensure their validity and accessibility. 

The Register of Wills in the United States

• Official Positions:In the United States, the “Register of Wills” is a historical and sometimes current official position responsible for the probate of wills and the management of probate court records in some states. 
• State-Level Archives:Unlike a single national registry, probate files and records of Wills are often housed at the state or county level, such as in state archives or county courthouses. 

Modern Will Registries

• The U.S. Will Registry:The U.S. Will Registry, founded in 1997, serves as a national database for finding legally valid wills written since 1967. 
• Purpose:These registries address the issue of “lost wills” and the emotional and financial complications that arise when a will cannot be found after a person’s death. 
• How They Work:A person can register their will, and if they pass away, their family or other beneficiaries can search the registry to see if a will was left and to get connected with the attorney who holds it. 

King County Washington has a Will Registry.

Content and purpose

• Property distribution: Ancient Egyptian Wills detailed the allocation of a person’s property, including land, houses, livestock, food, and personal belongings.
• Provisions for the afterlife: Due to a strong belief in the afterlife, Wills often included provisions to ensure the deceased was equipped for their journey to the next world.
• Guardianship: Testators could appoint a guardian for their minor children. Ankh-ren’s brother, Uah, created a Will that appointed a guardian for his own child.
• Conditions and disinheritance: Wills could be used to place conditions on the inheritance of property. The “Will of Naunakhte” (c. 12th-11th centuries BCE) is a prime example of this. The Townswoman Naunakhte explicitly disinherited several children who had not cared for her, giving her property to her more dutiful offspring. She also included a clause to punish any Beneficiary who contested the Will. 

Role of women in Estate planning

• Equality under law: Women in ancient Egypt had a remarkable degree of legal and financial independence compared to women in many other ancient societies. They could own property, enter contracts, and manage their own affairs.

n most Western societies, a woman’s right to make a will was severely restricted for centuries under the legal doctrine of coverture, which absorbed a married woman’s legal identity into her husband’s. Landmark legislation, particularly the Married Women’s Property Acts of the 19th century, gradually eroded this system, granting women greater—and eventually full—control over their own property and inheritance rights. 

Coverture: The historical barrier for married women

Under the English common law system of coverture, which was also adopted in the United States and other parts of the British Empire, a married woman was considered feme covert, meaning her legal existence was “covered” by her husband. This principle stripped her of her property and legal rights upon marriage. 

• No independent legal standing: Because her husband represented the couple as a single legal entity, a married woman could not own property, make contracts, file lawsuits, or earn a salary in her own name.
• Lack of testamentary freedom: Since a married woman could not own property independently, she was typically not permitted to write a will to dispose of assets that legally belonged to her husband.
• Widows and unmarried women: Before coverture was abolished, only unmarried women, known as femme sole, and widows had the right to own property and, therefore, the legal right to make a will. 

The gradual expansion of women’s rights (19th century)

Beginning in the early 19th century, laws were passed to dismantle coverture and expand women’s property rights. These reforms were often not motivated by egalitarian principles but by a desire to protect family assets from a son-in-law’s debts or mismanagement. 

Married Women’s Property Acts in the United States

• Connecticut (1809): One of the earliest laws allowed married women to execute wills, though it had a limited effect on their other property rights.
• Mississippi (1839): Passed a law granting married women the right to own (but not control) property in their own names, primarily to protect family assets from husbands’ creditors.
• New York (1848): Passed a comprehensive Married Women’s Property Act that became a model for other states. It allowed married women to retain ownership of property they brought into the marriage and to receive gifts and inheritances, which they could then pass on in a will.
• By 1900: Every U.S. state had passed legislation based on New York’s law, giving married women the right to own property in their own name and to make wills. However, women still faced financial discrimination, such as being denied credit without a male co-signer. 

Married Women’s Property Acts in the United Kingdom

• 1870 Act: A significant but limited step, this act allowed married women to keep their own wages and inheritances but did not grant full control over their property.
• 1882 Act: This key piece of legislation granted married women full control over their property, giving them the same legal capacity as unmarried women, including the right to make a will. 

Post-reform issues

While the Married Women’s Property Acts and other reforms were monumental, women’s full equality in estate planning was not immediately achieved.

• Racial discrimination: In the United States, property rights advances in the 19th century primarily applied to white women, and women of color would not gain full property rights until civil rights legislation was passed in the 1960s.
• Financial discrimination: Well into the 20th century, discriminatory practices persisted. For example, the U.S. Equal Credit Opportunity Act of 1974 finally prohibited creditors from discriminating on the basis of sex and marital status, ensuring women could access credit and mortgages without a male co-signer.
• Societal norms: Patriarchal attitudes often persisted even after legal changes. In Europe, despite legal advances, it was common for women to renounce their inheritance rights in favor of male relatives due to societal pressure. 

• Creating Wills: Both men and women could draft a Will. While fewer women’s Wills have been discovered, extant examples, like that of Naunakhte, confirm their right to do so.

The Will of Naunakhte (also referred to as Naunakht) is a papyrus found at the workmen’s village of Deir el-Medina that dates to the 20th Dynasty during the reign of Ramesses V. Discovered by the French Institute in 1928, the will outlines the division of assets by an Egyptian mother among her children.

• Independent property: Women could bring their own personal property into a marriage and keep control of it. In the event of divorce, they were entitled to its return plus a settlement.
• Disinheritance rights: Women could use their Wills to disinherit their own children from their personal property, as Naunakhte did.
• Inheritance from husband: A woman had an automatic right to one-third of the community property in a marriage. However, if a husband wanted his wife to receive more than this, or inherit his personal property, he needed to state this explicitly in a Will. 
• Greek and Roman Influence: Solon, the Athenian statesman, helped shape inheritance laws in the Greco-Roman era, allowing for the disposition of wealth, particularly for elite men without natural heirs. 
  In ancient Greece, the use of Last Wills and Testaments was highly restricted, primarily serving to designate an heir when there was no direct male descendant. The process was conditional and not a universal right, unlike in modern times. Wills were more common in Athens, due to the reforms of the statesman Solon, but other city-states had different laws or did not recognize Wills at all. 

Limitations on creating a Will

The primary goal of ancient Greek inheritance law was to preserve family property (oikos) and keep it within the family line. This led to several strict limitations on who could draft a Will and what it could accomplish: 

• Male citizens only. Only male citizens who were of sound mind and at least 20 years old could write a Will.
• No direct male heirs. A Will was only possible if the man had no legitimate male children. If he did, the Estate was automatically passed down to his male heir(s).
• The “heiress” (epikleros). If a man had no sons but had daughters, the person he named in his Will to inherit his property was required to marry one of his daughters. This ensured that the property remained connected to the family.
• Other conditions. Testators could not be under imprisonment or forced into writing a Will. In Athens, a Will could also be invalidated if it was found that the Testator had been influenced by his wife. 

The drafting process

The process for creating a Will included legal formalities and could be either written or oral. 

• Witnesses and seals. Written Wills were drafted in the presence of several witnesses, who would place their seals on the document to confirm its authenticity. The Will was then entrusted to Trustees, who were legally obligated to carry out its terms.
• Presence of officials. In Athens, high-ranking magistrates, including the archons, were sometimes present during the drafting of a Will to help ensure its legality.
• Oral Wills. Some men would declare their Will orally before a sufficient number of witnesses. A famous example is the Athenian Callias, who publicly declared his Will before the popular assembly. 

The Athenian Callias declared his will publicly before the popular assembly, the ekklesia, because he feared a conspiracy against his life. While the identity of this Callias is not definitive, this dramatic event illustrates a unique and public way to secure the last wishes of a citizen during a time of political instability. 

Context of the declaration

In ancient Athens, wills were usually witnessed by a few magistrates or sealed and placed with trustees. The public forum of the popular assembly would only have been necessary under extraordinary circumstances: 

• A climate of mistrust: The declaration took place during a period of intense political turmoil and intrigue in Athens.
• Protecting his estate: By making his wishes known to the entire citizen body, Callias ensured that no single individual could be secretly trusted to carry out his will. A conspiracy to kill him could also involve usurping his inheritance.
• Public accountability: For the assembly (ekklesia) to bear witness to the will gave it unprecedented public visibility and accountability. His heirs and executors would have been bound by the knowledge of thousands of citizens. 

Possible identity of Callias

Due to his wealth and prominence, the figure is most often identified as a member of the powerful and wealthy Kerykes family. The most likely candidate is Callias III (c. 450–371 BCE), though sources disagree on the exact figure. This Callias was a renowned diplomat and military commander, and his family was involved in many significant events in Athens. 

A different Callias, who was involved in the peace negotiations with Persia, is another possibility, though the timing of his life and political influence is less suited to the event as described. 

The legacy of the event

Regardless of the specific identity of the man, the story serves as a historical example of ancient Athenian legal and political life. It highlights: 

• The use of public spectacle for personal protection in an unstable political climate.
• The power of the popular assembly to act as a public court and witness in matters of critical importance.
• The lengths wealthy citizens would go to in order to protect their families and estates from political rivals. 

The purpose of ancient Wills

Beyond material inheritance, Wills served a critical social and religious function related to the continuity of the family line (oikos). 

• Maintaining the oikos. Passing on property was crucial for ensuring the financial and religious continuity of the family. The heir was responsible for performing commemorative rituals for the deceased.
• Avoiding an “empty house”. A man who died without an heir left behind an “empty house” (oikos eremos), which was considered undesirable. Wills and the practice of adoption helped prevent this outcome.
• Adoption. Childless men could use their Will to adopt a male heir. If an adopted son died without issue, the Estate would revert to the original family’s relations. 

Legal disputes

Wills could be contested in Court, and inheritance disputes were a frequent subject of legal cases in ancient Athens. 

• Contesting a Will. In the case of a dispute, rival claimants could present their case to the Court. For instance, a legitimate son could block another’s claim by formally declaring that the deceased had a son.

Will contests are legal challenges to the validity of a will, with a history of evolving jurisprudence. Early records from England, such as in Glanvill’s treatise (late 12th century), show a basic jurisdiction for contesting wills, which was later handled by ecclesiastical and then secular courts, eventually influencing American law. Key historical and evolving grounds for contesting a will include lack of testamentary capacity, undue influence, fraud, improper execution, and revocation, all with the ultimate goal of ensuring the testator’s true intentions are honored. 

Early Legal Frameworks

• Ancient Roots:The concept of a will itself has roots in ancient civilizations, including Greece and Rome, where formal documents were used to distribute property after death. 
• Early English Law:The earliest documented jurisdiction over will contests in England appears in Glanvill’s treatise on the laws and customs of the realm of England, written between 1187 and 1189. This indicates that the right to challenge a will was recognized early on. 

Evolution of Will Contests 

• Ecclesiastical Courts:.For centuries, a significant portion of will-related matters, including challenges, were handled by ecclesiastical (church) courts.
• Shift to Secular Courts:.With the Reformation, jurisdiction moved to secular bodies like the High Court of Delegates and later the judicial committee of the Privy Council, reflecting a secularization of the legal process for wills.
• Canon and Civil Law Influence:.Procedural and substantive rules in these early will contests were largely governed by the principles of canon and civil law.

Key Grounds for Contesting a Will

Over time, the common grounds for a will contest have become more defined: 

• Lack of Testamentary Capacity: The testator was not of sound mind and lacked the mental capacity to understand they were making a will or the nature of their assets and beneficiaries. 
• Undue Influence or Duress: The testator was coerced or improperly persuaded to include certain provisions in their will by another person. 
• Fraud or Forgery: The will is a fake, or the testator was deceived into signing it. 
• Improper Execution: The will was not signed or witnessed according to the formal legal requirements of the time and place. 
• Revocation: A later, valid will has been created, revoking the previous one. 

Modern Will Contests

• Standing:.In modern U.S. law, a person must have “standing” to contest a will, meaning they have a direct interest in the estate that could be impaired by the will’s probate or benefited by setting it aside. 
• Evidence:.Courts require substantial evidence to support the legal grounds for a contest, as they are generally reluctant to overturn a will unless compelling evidence shows it does not reflect the testator’s true wishes. 

• The validity of the Will. The authenticity and terms of a Will could be challenged, and some Wills were even registered with public authorities for validation. 
• ________________________
  In ancient Rome, the drafting and use of Last Wills and Testaments evolved significantly over time, transitioning from a highly public and ceremonial event to a more private, written process. Roman law regarded inheritance as a transfer of the deceased’s entire legal persona, including debts, to an heir, an essential role that a Will formally appointed. 

Drafting a Roman Will

Early Republic methods
Early Roman law established two public and formal methods for creating a Will: 

• Testamentum calatis comitiis: A Will declared orally before the comitia calata, an assembly of the Roman people that met twice a year for this purpose.
• Testamentum in procinctu: A Will declared orally by a soldier before his companions just before going into battle. 

The “Will by bronze and scales”
As society became more complex, these public declarations were replaced by a more private procedure, the testamentum per aes et libram (Will by bronze and scales). 

• This was a legal fiction based on the mancipation ceremony for transferring property.
• The Testator would symbolically “sell” his entire Estate to a Trusted friend, known as the familiae emptor (buyer of the household).
• The transaction was witnessed by five Roman citizens and a scale-holder (libripens).
• In the presence of these witnesses, the Testator would orally declare his intentions, a statement known as the nuncupatio, which would later be put in writing on wax tablets. 

The sealed, written Will
By the late Republic and Imperial periods, the ceremonial mancipation became a formality. The standard practice shifted to a written Will, sealed by seven witnesses, which offered greater privacy and security. 

• A written Will was typically inscribed on wooden wax tablets (tabulae), which were tied together.
• The witnesses would then place their seals over the cord, ensuring that the contents could not be viewed or tampered with without breaking the seals.
• After the Testator’s death, the Will would be opened before witnesses in an official setting. 

Content and usage of Wills

Appointing an heir (heres)
The most critical part of a Roman Will was the formal appointment of an heir or heirs (heres), as it was the cornerstone of the entire document. 

• The appointment had to be made using specific, formulaic language to be valid.
• The designated heir inherited all of the deceased’s rights and duties, including debts, a concept known as universal succession.
• To avoid potential bankruptcy, an heir could renounce the inheritance. Unemancipated children and freed slaves who were appointed heirs, however, were bound to accept the inheritance automatically.
• Later, Emperor Justinian instituted the “privilege of inventory,” which allowed an heir to accept an inheritance without becoming liable for debts that exceeded the Estate’s value. 

Emperor Justinian’s “privilege of inventory” (known in Latin as beneficium inventarii) was an inheritance law that protected heirs from being personally liable for the full extent of an estate’s debts. Under this rule, an heir could accept an inheritance without risking their own assets to pay off the deceased’s creditors. 

How the privilege worked

• Abolished unlimited liability: Before Justinian’s reform, Roman heirs could become personally liable for a deceased person’s debts, even if the debts exceeded the value of the inherited estate. This could lead to financial ruin.
• Procedure: To gain the privilege, an heir had to begin compiling a formal and accurate inventory of the deceased’s assets within a specific timeframe (usually 30 days) of learning about the inheritance.
• Limited liability: If the heir followed the procedure correctly, their liability for the estate’s debts was legally limited to the value of the inherited property listed in the inventory. For instance, if an heir inherited a house worth $200,000 but the estate had $250,000 in debt, the heir would only be responsible for the debts up to $200,000 and would not have to use their personal funds to pay the extra $50,000.
• Protection for heirs: This crucial reform offered protection, especially to heirs who were uncertain about the financial health of an estate. It was particularly helpful for heirs who, under the old system, might have been compelled to refuse a valuable inheritance out of fear of hidden debts. 

Legacy of the reform

The beneficium inventarii was a major change in Roman inheritance law and had a lasting impact. The principle, which allows heirs to accept an estate “under the benefit of inventory,” was later adopted into many modern civil law systems, including the Napoleonic Code, and is still in force in many European countries today. 

Disinheritance and family duty
While Romans had a strong tradition of freedom in drafting a Will, social norms and legal challenges ensured that family members received a fair share. 

• An individual could not be partially Intestate (Willing property) and partially Intestate (Unwilling property). The Will either succeeded entirely or failed entirely.
• Male children had to be specifically disinherited by name. If not, the Will could be invalidated.
• Children could file a legal challenge known as the querela inofficiosi testamenti (“complaint of the undutiful Will”) if they believed they were unjustly disinherited. This was based on the legal fiction that the Testator must not have been of sound mind. 

Additional bequests
Beyond appointing heirs, a Roman Will could be used for other purposes, such as: 

• Legacies: Granting specific items or sums of money to individuals, organizations, or towns.
• Manumission of slaves: Freeing slaves, sometimes with limits imposed by law.
• Appointment of guardians (tutors): Naming a guardian for underage children.
• Fideicommissa (Trusts): Placing a request on an heir or legatee to pass on property to a third party. This could be used to leave property to those who could not be named as a formal heir, such as foreigners. 

Social and cultural role

Inheritance was a central concern of the Roman legal system, and Wills were widely used to ensure property and social standing were passed down according to the Testator’s wishes. While male citizens of a certain social status were the primary Testators, Roman law and social practice adapted over time to include women and other relatives, though often in restricted ways. The “horror of Intestacy,” as historian Henry Maine described it, meant that Romans generally preferred to leave a Will rather than have their Estate distributed by standard Intestate succession laws. 

Historian Henry Maine, in his 1861 work Ancient Law, described the “horror of Intestacy” as the “singular horror” felt by the ancient Romans toward dying without a will. This fear stemmed from the highly rigid and inflexible nature of early Roman intestate succession law, which dictated who could inherit based on archaic legal definitions of the family rather than on blood ties or personal affection. 

The consequences of intestacy

According to Maine, ancient Roman law regarding inheritance without a will led to outcomes that were perceived as unfair and disastrous: 

• Excluded emancipated children: The earliest rules of Roman law, the civil law in the Twelve Tables, defined the family through agnatic kinship, a legal bond traced through male lines. Under this system, emancipated children lost their agnatic ties to their father and were legally excluded from inheriting his property.

The Twelve Tables were not a single type of law, but a fundamental Roman legal code established in 451-450 BCE, covering various aspects of Roman civil life, including family law, property rights, procedural rules, crimes, inheritance, and public conduct. Written to address a political struggle between patricians and plebeians, these laws were carved on bronze tablets for public display and formed the foundation for later Roman law, establishing procedural rights for all citizens.  

Key Areas Covered by the Twelve Tables:

• Family Law:.Rules on parental authority, marriage (initially, marriage between patricians and plebeians was forbidden), and the rights of women. 
• Property Rights:.Regulations regarding boundaries, water rights, trees on neighboring properties, and obligations for neighbors to maintain shared areas. 
• Debt and Economic Relations:.Laws addressing debt, personal liability, and rules for acquiring goods, such as ensuring payment before a sale was final. 
• Crime and Punishment:.Set penalties for offenses like slander, false witness, and theft, including the death penalty for night-time theft and hurling from the Tarpeian Rock for false witnesses. 
• Procedure:.Guidelines on court proceedings, the use of arbiters, and the responsibilities of legal officials, which were initially designed to benefit the wealthy but established basic procedural rules. 
• Inheritance:.Rules for intestate (without a will) succession and guardianship of minors and women. 
• Public and Religious Law:.Prohibitions on night-time meetings in the city and limitations on funeral practices. 

Historical Significance:

• Transparency and Access to Law:.The Twelve Tables were placed in the Roman Forum, making the law accessible to all citizens and a step towards a more transparent legal system. 
• Foundation of Roman Law:.They laid the groundwork for future Roman legal development, establishing basic principles that would shape the legal systems of Europe and the Mediterranean. 
• Social and Political Impact:.The creation of the Twelve Tables was a significant victory for the plebeians in their struggle with the patricians, ensuring basic legal rights for all Roman citizens. 

• Property could leave the family: In the absence of direct agnatic descendants, an estate could pass to a more distant branch of the family or even to the gens (all Roman citizens with the same family name). This created the risk that property would fall into the hands of people the deceased barely knew, completely disinheriting close relatives who were related through female lines or had been emancipated.
• Loss of familial continuity: An Intestate death not only deprived loved ones of an inheritance but also threatened the continuity and integrity of the family unit itself. For this reason, Maine argued that the desire to override the harsh and outdated rules of intestacy is what gave rise to the practice of Will-Making in Rome. 

Later reforms and scholarly debate

Maine’s thesis has been subject to considerable scholarly debate: 

• Later reforms through the Praetor’s Edict softened the harshness of the civil law by recognizing a broader definition of the family based on cognatic kinship (blood relationships). However, Maine still speculated that the “horror” of intestacy persisted due to slowly changing family sentiment.
• Historians such as David Daube and David Cherry have challenged Maine’s conclusion, noting that Testacy (dying with a Will) was likely common only among the propertied elite. For the majority of poor Romans, dying without a Will was probably not a significant concern. 

In summary, Maine’s “horror of Intestacy” refers to the specific, culturally embedded fear among propertied ancient Romans that without a properly executed Will, archaic intestate law would override their family sentiments and unjustly disinherit their loved ones.

• Feudal Decline: During the feudal era in England, Testamentary power over land was largely abolished, as it interfered with feudal rights and land tenure practices. 
  In Feudal England, Testamentary power over land was abolished primarily to maintain the feudal system of military service and inheritance, which required large Estates to remain intact. The Normans, led by William the Conqueror, established a system where all land was ultimately held by the king, who granted it to his nobles (tenants-in-chief) in exchange for pledges of military service. 

Key reasons for this abolition:

• Preventing fragmentation of land: Under the feudal system, a lord’s military and financial obligations were tied to the size and coherence of his Estate. If landowners were free to divide their Estates among multiple heirs or bestow them by Will, the resulting fragmentation would weaken their ability to provide the required military service to the Crown. The system of primogeniture—where land passed solely to the eldest son—was developed to preserve the integrity of these large Estates.
• Maintaining military service: The land tenure system was built on the premise that a single individual would be responsible for fulfilling the military duties associated with a given Estate. Allowing land to be divided or Willed to multiple parties would have made these obligations difficult to enforce.
• Royal and manorial control: The Crown and manorial lords wanted to maintain control over the transfer of land, as it ensured that military rights remained in the hands of one capable individual. It also entitled them to valuable payments and privileges when a new heir took over the land, such as escheat (the reversion of land to the lord if a tenant died without heirs), wardship, and marriage.
• Countering the power of the Church: Limiting Testamentary freedom over land also prevented the Church from acquiring large tracts of land through “deathbed gifts”. Because ecclesiastical orders did not “die,” any land they received would not escheat back to the Crown or a lord, undermining the feudal system.

The history of deathbed gifts, known legally as donatio mortis causa, originates in Roman law and has been adapted over centuries into modern legal systems. It is a rare, conditional type of gift, distinct from a lifetime gift or a will, that has survived despite judicial skepticism. 

Roman law: The origin

The concept of the donatio mortis causa is first defined in Roman law, particularly in the Institutes of Justinian in the 6th century A.D.. 

• Contemplation of death: The gift was made in contemplation of impending death, such as before a serious illness or going into battle.
• Conditional: The gift was made under the condition that it would only become permanent if the donor died. The donor had the right to revoke the gift if they recovered, and it would also be revoked if the donee died first.
• Resembles a legacy: Roman law placed these deathbed gifts on a similar footing to legacies, or testamentary gifts, and they were subject to the donor’s debts. 

English law: Adaptation and resistance

The Roman concept of the donatio mortis causa was adopted into English and Welsh law, though not without judicial resistance due to the risk of fraud. 

• Early integration: The legal tradition was integrated into English law via the ecclesiastical courts in the 18th century, a jurisdiction more open to Roman principles.
• Requirement of delivery: A landmark 1749 English case, Ward v. Turner, helped establish that physical delivery of the gift was required for a valid donatio mortis causa. This meant either handing over the item or the means of accessing it, like keys.
• Formalities bypassed: Because the gift is perfected outside of probate, it is an exception to the formal requirements for wills set out by the Wills Act of 1837.
• Distrust and scrutiny: Throughout the 19th and 20th centuries, English courts have viewed deathbed gifts with suspicion. Critics argued that the practice invited fraud and perjury since the only witnesses were often the interested recipient and the now-deceased donor. In 1827, Lord Eldon even suggested that the law should be “struck out altogether”.
• Continued relevance: Despite the criticism, the doctrine has been retained. The COVID-19 pandemic highlighted its modern relevance as a way for those who fall suddenly and critically ill to make final wishes known outside a formal will. 

Modern legal principles

Modern law, influenced by its Roman and English history, requires three criteria for a valid deathbed gift: 

1. Contemplation of death: The donor must make the gift while contemplating a specific and impending cause of death, not merely due to the general fact of human mortality.
2. Conditionality and revocability: The gift must be conditional upon the donor’s death and remain revocable if they recover.
3. Delivery or “parting with dominion”: The donor must physically deliver the gift or a means of controlling it (such as keys, a share certificate, or login details for an online account) to the donee. 

Differences across legal systems

The concept’s application varies between civil and common law traditions. 

• Civil law: In civil law countries, the donatio mortis causa is typically considered a revocable gift that becomes irrevocable upon death.
• Common law: In common law countries like the U.S. and those derived from English tradition, the concept occupies a space between a lifetime gift (inter vivos) and a testamentary gift (a gift made by will). Unlike a will, a deathbed gift transfers assets directly to the recipient and bypasses the probate process. 

• Legal and procedural constraints: The legal practice of “livery of seisin”—the physical transfer of land—made it impossible for a land grant to take effect after the owner’s death. The royal Courts did not recognize a Will as sufficient grounds to complete the transfer of land. 

The eventual return of Testamentary power

This feudal restriction was eventually relaxed over centuries through legal maneuvers:

• The use: Landowners found a loophole by transferring their land “to use,” a precursor to the modern Trust, which allowed them to effectively pass the land to a beneficiary of their choosing outside of common law rules. This was highly unpopular with the Crown, as it limited the revenue from inheritance.
• Statute of Wills (1540): In response to widespread discontent, particularly after his own attempts to limit the use, Henry VIII passed the Statute of Wills, which formally allowed landowners to bequeath most of their land by Will.
• Abolition of feudal tenures (1660): The final blow to the old system was the Tenures Abolition Act 1660, which ended the most burdensome feudal land tenures and solidified the right to pass on property by Will. 
• Modern Development: The modern Will, as we know it, largely took shape in the 18th and 19th centuries, with English common law influencing legal systems in the United States.  In 18th and 19th century English common law, a Last Will and Testament was a formal document, often dictated orally to a scribe, which required a signature, seal, and three witnesses to transfer personal and, eventually, real property. While initial laws restricted the amount of personal property a man could leave if he had a wife or children, and real property often passed by bloodline via entail, the system evolved to allow greater Testamentary freedom. The Probate process was initially handled by Church Courts, like the Prerogative Court of Canterbury, for wealthy people. 

Key Aspects of Wills

• Oral Tradition: Wills were often made by orally dictating their content to a scribe, who would then write them down. 
• Formalities: The document needed to be signed and sealed by the Testator (the person making the Will) and attested to by three witnesses. 
• Testator’s Will: A Will was a declaration of what the Testator “Willed” or wanted to happen to their property, especially to ensure it stayed within the family line. 

Evolution of Property Distribution

• Personal Property Restrictions: Under common law, a man with a wife or children could generally only dispose of a portion of his personal property, not the entire Estate. 
• Real Property: The distribution of real Estate was often governed by entailment, which aimed to keep land within a specific family line and was not freely transferable by the current owner. 
• Greater Freedom Over Time: While initial rules restricted Testamentary disposition, the law gradually expanded to allow for greater control over property distribution, especially personal property. 

The Role of Church Courts

• Probate: The system for handling Wills, known as Probate, was originally overseen by Church Courts, not the State Courts. 

For centuries, ecclesiastical or church courts in England held jurisdiction over the probate of wills and the administration of personal property after death. This control gave them significant influence over the transfer of a person’s movable assets, such as goods and money, from the medieval period until secular courts took over in the 19th century. 

The church’s control was based on a fundamental religious premise: a deceased person’s soul could not enter heaven until their debts were paid and their will (or “testament”) was executed. 

Rise of ecclesiastical jurisdiction

• Post-Norman Conquest: After the Norman Conquest of 1066, William the Conqueror established separate ecclesiastical courts in England to handle spiritual matters. While secular courts retained authority over land (known as “realty”), the church courts received jurisdiction over a person’s “personalty,” or movable goods.
• Enforcing moral duties: The church viewed the distribution of personal property as a moral obligation. This enabled it to control the probate process for the following key reasons:
  • Proving wills: The church courts validated, or “proved,” a person’s will to ensure it was properly executed.
  • Administering estates: If a person died without a valid will (intestate), the ecclesiastical court would take possession of the deceased’s goods and oversee the distribution of the estate.
  • Pious bequests: They ensured that the testator’s pious requests, such as bequests to the church or for prayers for their soul, were carried out.
• Hierarchy of courts: The complexity of the court system varied based on the deceased’s wealth and location. For example, in England, a person’s will could be proved in a local archdeaconry court or a higher consistory court. If the deceased owned property in multiple dioceses, the case was handled by a provincial Prerogative Court. 

Limitations and decline of ecclesiastical control

• Incomplete jurisdiction: The church courts’ control was limited to movable property. Disputes involving land were handled by secular common law courts. This jurisdictional split created complexities, especially when a single will dealt with both land and goods.
• Rise of Chancery courts: As conflicting claims between heirs and creditors became more common, the common law and ecclesiastical courts proved inadequate. Chancery courts, overseen by the king’s chancellor, developed to resolve these disputes using flexible “equity” principles. Chancery courts would address the administration of the estate, but only after the ecclesiastical court had granted probate.
• Erosion of authority: Over time, the authority of the church courts diminished. Common law courts issued “writs of prohibition” to stop ecclesiastical courts from overreaching their authority, making them less effective. During the English Civil War (1653–1660), the ecclesiastical jurisdiction was temporarily abolished.
• Final secularization: In England, the church’s role in probate was ultimately eliminated by Parliament. The Court of Probate Act of 1857 transferred jurisdiction over all probate cases, including wills, from the ecclesiastical courts to the new civil Court of Probate. This shift marked the end of the church’s direct legal control over a person’s property after death. 

Influence on American law

• Inherited model: Early American probate law was heavily influenced by the English system, particularly its handling of personal property and the terminology used.
• Immediate secularization: Unlike in England, there was no established church with legal probate authority in the American colonies. Therefore, probate jurisdiction was handled by secular or statutory courts from the start. This allowed American courts to deal with both land and personal property within a single system. 

• Prerogative Court of Canterbury: . For wealthier individuals, especially those residing in the south of England and Wales, the Prerogative Court of Canterbury (PCC) was responsible for handling their Wills and Estates. 
• Evolution of Content: Over time, Wills evolved from primarily focusing on property to encompassing more complex aspects, including provisions for disinheritance, which were not present in early Wills. 
  Last Will and Testaments evolved to include complex provisions like disinheritance because of fundamental shifts in society and law, including changes in family structure, the nature of wealth, and the legal concept of Testamentary freedom. 

The shift from forced heirship to Testamentary freedom

In early legal systems, such as ancient Rome and medieval England, inheritance was governed by a concept known as “forced heirship” or by established customs like primogeniture. 

Primogeniture is an inheritance system favoring the eldest child (usually a son) to keep large estates intact, while forced heirship is a civil law concept that legally reserves a portion of an estate for specified heirs. How they worked in practice is best understood by contrasting them. 

How primogeniture worked in practice

Historically, primogeniture was a custom in feudal England and Europe, meant to consolidate and preserve a family’s wealth, land, and title. However, its practical application could be complex and varied over time and place. 

1. Preserving the estate

• The primary goal was to prevent fragmentation of a family’s land and wealth, which could happen if it was divided among many children across generations. By keeping the estate intact, the family maintained its power and influence. 

2. Dictating social structure

• Male-preference: This was the most common form, where the eldest living son inherited the entire estate. A daughter could only inherit if there were no surviving male heirs or their legitimate descendants.
• Younger sons: The practice had a major effect on social mobility. Younger sons were left to find their own fortunes, often pursuing careers in the military or the church.
• Marriage alliances: Since daughters were typically excluded from inheritance, their families arranged strategic marriages to secure alliances and financial benefits. 

3. Limitations and exceptions

• Personal vs. real property: The rules often only applied to “real property” (land), not to “personalty” (personal belongings, money, or leaseholds). Family members could distribute personalty with more flexibility.
• Entails: Estates could be legally “entailed” by a will or settlement, restricting inheritance to a particular line of heirs. These legal constructs further locked in the practice for generations.
• Wills: Testators could use wills to modify inheritance. For example, some gentry would provide for younger children with money from liquidating assets rather than through land.
• Regional variations: Primogeniture was not universal. In some regions, traditions like “gavelkind” (dividing land among all sons) or “borough English” (leaving land to the youngest son) were practiced. 

How forced heirship works in practice

Forced heirship is found in civil law jurisdictions (like France, Spain, and Brazil) and some religious law systems. It limits a person’s “testamentary freedom” by mandating that a portion of the estate goes to “forced heirs,” regardless of the deceased’s wishes. 

1. Dividing the estate

• An estate is typically split into two parts upon death:
  • The forced estate (or legitime): This is the portion reserved for specified heirs and is protected from being given away.
  • The free estate: This is the remaining portion that the deceased can distribute freely via a will. 

2. Designating forced heirs

• The definition of a forced heir varies by jurisdiction but most commonly includes direct descendants like children. Spouses or parents may also qualify under certain conditions.
• The size of the reserved portion is determined by law and can depend on the number of qualifying heirs. In France, for example, the reserve is one-half of the estate for one child, two-thirds for two children, and three-quarters for three or more.
• Louisiana is the only U.S. state with a forced heirship rule. It applies only to descendants under age 24 or those of any age who are permanently incapacitated. 

3. Restrictions and complications

• No disinheritance: Unlike in common law, a person cannot simply disinherit a forced heir through a will. Any attempt to do so would likely be invalidated by a court.
• International assets: For individuals with assets across multiple countries, forced heirship creates significant complications. For instance, a person living in a common law country with testamentary freedom might still have their real estate in a civil law country subjected to that country’s forced heirship rules.
• Protecting family security: A key motivation for forced heirship is to ensure close family members are provided for financially after a death. This can reduce the risk of them being left destitute.
• Business succession issues: For business owners, forced heirship can cause major problems by fragmenting ownership shares among multiple heirs, rather than allowing the business to be transferred intact to a single, chosen successor. 

• Early Roman and English law: In these systems, property often automatically passed to a male heir. While Roman Wills could bypass this, a Testator typically had to give the heir a nominal amount, such as a shilling, to effectively disinherit them.
• Feudalism and land: Under feudal law, land was not freely devisable by Will. The Estate passed to the eldest son, and Feudal Lords benefited from the system through inheritance taxes. The power to write a Will was viewed as a threat to the Lord’s financial interests.
• The Statute of Wills (1540): This landmark English law, passed during the reign of Henry VIII, marked a major turning point. It allowed landowners to freely dispose of their property by executing a written Will. This was a direct result of landowners’ desire to avoid certain feudal taxes and duties, which often included forced land transfers. 

The Statute of Wills of 1540 was groundbreaking because it was the first law in post-Conquest English history to give landowners the legal right to bequeath their freehold land by will. Previously, land was inherited according to strict feudal rules, which often benefited the crown and limited the landowner’s control over their estate. 

Inheritance before the Statute

Before 1540, the system of feudal inheritance rights meant that a landowner’s property could only be passed on in two limited ways:

• Feudal incidents: Upon the death of a tenant, their land would pass to the nearest male heir (primogeniture). This process incurred hefty “feudal incidents” (fees) for the crown, such as reliefs and wardship.
• Escheat: If a landowner died without a direct male heir, the land would revert directly to the crown. This was known as escheat. 

Key changes introduced by the Statute

The Statute of Wills was a political compromise between King Henry VIII and English landowners, who sought greater autonomy over their property and were frustrated with the rigid inheritance system. The statute was revolutionary because it: 

• Established testamentary freedom: It gave landowners the ability to choose who would inherit their property. A person could devise all of their land held in socage and two-thirds of their land held in knight service.
• Required written wills: The act made written wills, signed by the testator and witnessed by others, a legal requirement. These basic provisions to ensure authenticity and reduce fraud are still foundational to modern will-making.
• Maintained royal revenues: In a clever move, the crown ensured it would still receive income from land held by knight service. The heir who received the land was now responsible for paying the feudal incidents to the king.
• Partially circumvented the Statute of Uses (1536): Passed just a few years earlier, the Statute of Uses made it harder for landowners to avoid feudal fees through “uses” (a form of trust). The Statute of Wills offered a way to legally and directly bypass some of the crown’s control over land inheritance. 

The rise of modern individualism and new family structures

The shift toward Testamentary freedom reflected changing views on individual liberties and property ownership that emerged during the Age of Enlightenment. 

• Individualism vs. family: Philosophers like John Stuart Mill argued that an individual’s right to property was incomplete without the power to bestow it as they pleased after death. In this view, a Testator had the right to make a value judgment on how to distribute their assets based on a beneficiary’s conduct or needs.
• Changing family dynamics: As society industrialized, traditional family structures and expectations for care also changed. No longer were all family members guaranteed to be equally involved in their parent’s lives, creating new justifications for disinheritance. 

Increased complexity of wealth and assets

Early Wills primarily dealt with land and simple personal property, but the Industrial Revolution created new forms of wealth that were far more complex. 

The Industrial Revolution fundamentally transformed the nature of wealth, shifting it from primarily land-based and tangible assets to more complex, abstract financial forms. This change, in turn, spurred a revolution in how wealth was transmitted, decreasing the importance of traditional wills and increasing the use of alternative, “nonprobate” systems. 

Shift to complex financial wealth

• From land to financial assets: Before the Industrial Revolution, wealth was concentrated in landownership, family farms, and small family businesses. The new factory system and modern economies created new kinds of wealth, including stocks, bonds, bank deposits, and insurance contracts, which became the dominant form of wealth.
• Rise of the capitalist class: The accumulation of unprecedented fortunes by industrialists and financiers like Carnegie and Rockefeller introduced a new class of “robber barons” with immense, complex wealth.
• Growth of the middle class: The ability to save wages and invest in new ventures allowed for the growth of a new middle class that accumulated financial assets. This provided greater opportunities for upward mobility outside of inheriting land or aristocratic privilege.
• Human capital as wealth: The economy began to value “human capital”—the skills, knowledge, and education of individuals—as a major form of wealth. For the middle classes, intergenerational wealth transfer increasingly occurred during a parent’s lifetime through investments in a child’s education. 

Transformation of inheritance and wills

The changing nature of wealth prompted a decline in the traditional, court-supervised probate system, with new mechanisms becoming more efficient for transferring modern assets. 

• Growth of the nonprobate system: The Industrial Revolution led to the rise of financial intermediaries—such as banks, brokerage houses, and insurance companies—that developed methods for transferring account balances and other assets upon death without legal probate.
• Increased lifetime transfers: As parents invested in their children’s “human capital” through education, more wealth was transferred during their lifetime rather than after death through a will. The need for older parents to save for their own longer lifespans also reduced the inheritance pool.
• Shifting focus of wills: With many financial assets now transferable outside of the probate process, wills focused on different forms of property, often losing their central role in family wealth transmission.
• Shift in legal interpretation: Legal history research shows that changes in caselaw regarding families and inheritance, rather than just land, profoundly influenced economic development during this period. The laws adapted to the new forms of wealth and family structure.

• New assets: Wealth was no longer measured solely in land but in stocks, bonds, and other forms of intangible property. This required more complex Testamentary instructions to ensure proper management and distribution.
• Blended families: The rise of second marriages and blended families led to a need for more specific instructions to manage Estates and address potential conflicts between spouses and children from different marriages. 

Evolving legal safeguards and litigation

The increased freedom to write complex Wills and disinherit heirs did not go unchecked. The legal system evolved to manage new risks and challenges. 

• Preventing Will contests: The risk of a Will being challenged by a disinherited family member is a key reason for the need for detailed legal language. Provisions like an in terrorem clause, which threaten to forfeit a bequest if it is challenged in Court, are used to deter potential lawsuits.
• Protecting against “malicious Wills”: Concerns arose that individuals could disinherit their families out of spite or malice. The UK’s Inheritance (Family Provision) Act of 1938 and similar laws were passed to protect a spouse or child who was unjustly disinherited from a Will.

The Inheritance (Family Provision) Act 1938 introduced a key change to UK inheritance law by allowing the court to award a discretionary payment from a deceased person’s estate to a surviving spouse or child if the will did not provide “reasonable provision for their maintenance”. This marked the end of absolute testamentary freedom in England and Wales. 

Background before the Act

Prior to the 1938 Act, the English legal principle of testamentary freedom gave testators complete power to disinherit family members from their will, regardless of the hardship caused. This was seen as a way to allow property owners full, unfettered control over their possessions. The 1938 Act fundamentally shifted this principle by recognizing that certain close family members have a social claim to be provided for. 

Key provisions of the 1938 Act

Limited class of dependents

The Act created a specific, narrow category of eligible dependents who could apply for a claim. This included: 

• A surviving spouse.
• An infant son (under 21).
• A son of any age who was, due to a mental or physical disability, incapable of maintaining himself.
• An unmarried daughter of any age or a married daughter under a disability. 

Discretionary court-ordered maintenance

• Instead of establishing fixed inheritance rights, the Act gave the court the discretion to determine what constituted “reasonable provision” and how to order payment from the estate.
• For smaller estates under £2,000, the court was permitted to award a lump-sum payment. For all other estates, the maintenance was to be paid out of the estate’s income.
• The maintenance payments were temporary and would cease under specific conditions. For example, payments to a surviving spouse would stop upon remarriage, and payments to a son would end once he reached 21 or was no longer disabled. 

Maintenance, not redistribution

• The court’s power was limited to providing for the applicant’s maintenance needs, not to achieve an equal or fair redistribution of assets among the beneficiaries.
• The Act ensured that all debts and liabilities of the deceased were settled before any maintenance provision was made. 

Subsequent changes

The Inheritance (Family Provision) Act 1938 was significantly amended by later legislation, including the Intestates’ Estates Act 1952 and the Family Provision Act 1966. It was eventually repealed and replaced by the much broader Inheritance (Provision for Family and Dependants) Act 1975, which expanded the pool of eligible claimants and the courts’ powers. 

• Addressing fraud and undue influence: Modern Wills require clear language and strict execution formalities, such as witnesses, to prevent fraud or coercion. Legal language and the involvement of attorneys are necessary to communicate a Testator’s clear intent to judges, who must interpret the Will and carry out the distribution after the Testator is gone. 

Why Wills Are Less Important

The decline in Wills’ importance is because they are less necessary, and fewer people are creating them. Other options, such are Trusts, have become more prominent. 

• Increased Use of Trusts:  “Pour-Over” Wills are not necessary to leave assets to a Trust. Washington State has a Statute that grants Non-Intervention Powers, which means that the Letters of Administration issued with the Affidavits of the Beneficiaries are used to Administer the Trust without Court supervision because the Beneficiaries agreed that is what they want. The potentially lengthy Probate process associated with Wills is shortened and simplified with an Intestate Probate without a Will. 
• Changes in Family Structure: As family structures and customs evolve, the needs for which Wills are used have also changed, influencing their complexity and forms. 

Changing family structures, such as blended families, unmarried partnerships, and same-sex marriages, have added significant complexity to will administration. These modern family dynamics challenge traditional “sweetheart wills,” which leave assets to a spouse and then to joint children, by creating a higher risk of disputes and unintended inheritance outcomes. To prevent conflict, testators (the people writing the will) must be more deliberate and specific in their estate planning. 

Rise of blended families

In families with stepchildren, the administration of wills is complicated by the challenge of balancing the interests of the current spouse and the children from previous relationships. 

• Intestacy laws: Stepchildren do not have an automatic right of inheritance under intestacy laws (the rules for when someone dies without a valid will), making it critical for the testator to explicitly include them.
• Unintended disinheritance: A common but risky approach for blended families is for each spouse to leave their assets to the surviving partner. This is a gamble for the children of the first spouse to die, as the surviving partner could potentially write a new will leaving everything to their own biological children.
• Preventing disputes: To protect the inheritance of all children, strategies like creating a trust (such as a Qualified Terminable Interest Property (QTIP) trust) are often used. This allows the surviving spouse to benefit from the assets during their lifetime, with the remaining assets passing to the children upon their death.
• Shared authority: To ensure transparency and fairness, a blended family might name co-executors—such as the surviving spouse and one of the deceased spouse’s children—to administer the estate. 

Non-traditional and unmarried partners

With the rise of unmarried and cohabiting couples, the administration of wills must address a significant legal disconnect. 

• No automatic inheritance: Intestacy laws do not recognize unmarried partners, regardless of how long they were together or whether they have children. If a partner dies without a will, the surviving partner has no automatic right to inherit and could face significant financial hardship or even lose their home.
• Increased litigation risk: The surviving partner may be forced to make a legal claim against the estate, which is a costly and stressful process.
• Importance of clear documentation: For unmarried couples, a will is essential for ensuring assets are distributed as intended. They may also create a cohabitation agreement to clarify financial intentions. 

Divorce and serial relationships

Divorce adds several layers of complexity, as previous estate planning documents may still be in effect. 

• Impact on existing wills: While a divorce may automatically revoke bequests made to an ex-spouse in a will, this is not always the case and can depend on state law. It is critical to create a new will to reflect current wishes.
• Outdated beneficiary designations: Retirement accounts and life insurance policies are governed by their own beneficiary designations, which supersede a will. If not updated, an ex-spouse could still receive these assets.
• Updated roles: Post-divorce, a person must designate new executors, trustees, and people with power of attorney, as the previous appointments of an ex-spouse may be automatically revoked. 

Digital asset administration

As individuals accumulate a “digital legacy,” wills have had to adapt to address new types of property. 

• Defining and inventorying assets: Digital assets include a wide range of property, such as cryptocurrency, social media accounts, cloud-stored files, and websites. A digital inventory is necessary to track and manage these items.
• Access challenges: Terms of service and privacy laws can prevent executors from accessing a deceased person’s online accounts.
• Specialized planning: Many estates now incorporate a separate “digital will” or appoint a tech-savvy “digital executor” to manage online accounts. 

Same-sex marriage

The legalization of same-sex marriage has provided access to certain estate planning benefits, but planning remains a priority. 

• Federal benefits: Married same-sex couples now have access to federal benefits such as tax-free transfers of assets to their spouse via the unlimited marital deduction.
• Unmarried same-sex couples: For those who are not married, the need for a will is critical to ensure their partner has an inheritance, as they have no rights under intestacy laws.
• Children and surrogacy: For same-sex couples with children, wills must address potential issues surrounding custody and inheritance rights for both biological and non-biological parents. 

• Legal Prejudices: Historically, even with a Will, same-sex couples or others might face prejudice in Court when challenges to the Will were made on grounds of undue influence or incapacity. 

The administration of wills regarding same-sex couples has shifted from a patchwork of strategies designed to overcome legal obstacles to equal treatment under the law. These advances were secured through key court decisions and legislation that dismantled discriminatory laws, though proactive estate planning remains essential. 

Pre-marriage equality era (pre-2015)

Before the nationwide legalization of same-sex marriage, LGBTQ+ couples lacked legal recognition and were denied spousal inheritance rights at both the federal and state levels. This forced same-sex partners to take extraordinary measures to ensure their wishes were honored: 

• Estate planning was paramount: With no automatic right to inherit from a deceased partner’s estate under intestacy laws (the rules for when someone dies without a will), having a professionally drafted will was the only way to protect a surviving partner.
• Wills were vulnerable to challenge: Even with a will, a same-sex partner’s inheritance could be challenged by the deceased’s family. In the 1964 case In re Kaufmann’s Will, a court invalidated a will that left the majority of an estate to a same-sex partner, citing “suspicious circumstances” related to their relationship.
• Adult adoptions: In a desperate measure to secure legal rights for a partner, some same-sex individuals would legally adopt their partner. This granted the same inheritance and hospital visitation rights as a parent-child relationship but required the adopted partner to legally sever ties with their birth family. 

The path toward equal rights (2013–2015)

Legal victories began to dismantle discriminatory barriers, creating a path toward equal inheritance rights.

• United States v. Windsor (2013): The Supreme Court struck down the Defense of Marriage Act (DOMA), a federal law that had denied federal benefits—including inheritance tax breaks—to same-sex married couples. This ruling allowed legally married same-sex couples to claim the federal marital estate tax deduction.
• Obergefell v. Hodges (2015): The Supreme Court ruled that the right to marry was a fundamental liberty guaranteed to same-sex couples nationwide. This landmark decision had a profound impact on the administration of wills and estates:
  • Spousal inheritance rights: Same-sex spouses were finally treated as “heirs-at-law,” gaining the same rights as opposite-sex spouses under state intestacy laws.
  • Marital deductions: Married same-sex couples became eligible for the same state and federal estate tax benefits and unlimited marital deductions as heterosexual couples.
  • Intestacy laws: In the absence of a will, a same-sex spouse is now entitled to inherit from their partner’s estate according to state laws, which typically allot a significant portion to the surviving spouse.
  • Rights of election: A surviving same-sex spouse gained the right to “elect against” a will if they were disinherited, ensuring they receive a statutory share of the estate. 

Post-equality and ongoing considerations (2015–present)

While marriage equality secured most spousal inheritance rights, potential legal challenges and the need for comprehensive planning remain important. 

• Respect for Marriage Act (2022): This federal law mandates that all states recognize a marriage, regardless of sex, which provides a crucial legal backstop should the Obergefell ruling ever be challenged. However, the act does not guarantee the same protections for unmarried same-sex couples.
• Need for proactive estate planning: Even with guaranteed inheritance rights, same-sex couples are still advised to create comprehensive estate plans. This is necessary to:
  • Direct the distribution of assets outside of standard intestacy laws.
  • Designate an executor.
  • Establish powers of attorney for medical and financial decisions.
  • Ensure wishes are respected in states that may have a less-friendly legal or social environment.
• For unmarried couples: Same-sex couples who choose not to marry do not have the same protections as spouses and must use wills and other legal documents to secure their partners’ rights. 

• Lack of Public Awareness/Preparedness: Many adults do not prepare a Will, resulting in a decline in Estate preparedness and leaving their wishes to the discretion of the Courts. 
• Misunderstanding the Process: Some individuals may find the process of writing a Will daunting or incomplete when using DIY “Will kits”.  Several factors are making traditional Last Will and Testaments less important for many Americans. The decline in their importance is mainly due to the rise of alternative Estate planning tools that can bypass the lengthy, costly, and public Probate process. 

Alternatives that bypass the Will

Modern alternatives allow people to transfer many assets directly to heirs, often with more privacy and control than a traditional Will provides. These include: 

• Revocable living Trusts: These are a popular tool for avoiding Probate, managing assets if you become incapacitated, and keeping your Estate details private.

Revocable Living Trusts are often considered superior to wills for estate administration because they allow for private, efficient asset transfer to beneficiaries by avoiding the costly, public, and time-consuming probate process. Trusts also provide for the management of your assets during incapacity, offering a smooth transition of control to a Successor Trustee without court involvement. Additionally, they can help prevent family disputes by making it more difficult to challenge the plan and keeping your financial affairs confidential. 

Key Advantages of Revocable Living Trusts

• Avoids Probate:This is the most significant advantage. A Will must go through Probate, a Court-supervised process that validates the Will and distributes assets. A Trust allows for the direct transfer of assets to Beneficiaries, bypassing this process and saving time, money, and Court Fees. 
• Ensures Privacy: Unlike a Will, which becomes public record when filed in Probate Court, a Revocable Living Trust remains private. This keeps your financial details and the specifics of your Estate distribution confidential. 
• Manages Incapacity: A Trust designates a Successor Trustee to manage your assets if you become incapacitated. This avoids the need for a court-appointed guardian or conservator, providing a seamless transition of control. 
• Streamlines Asset Distribution: Assets transferred into the Trust can be distributed to your beneficiaries according to your instructions without delays. 
• Reduces the Risk of Disputes: Because a Trust is more difficult to challenge than a Will, it offers more protection against post-death disputes from family members, ensuring your wishes are carried out. 
• Avoids Ancillary Probate:If you own property in multiple states, a Trust holding that property can prevent the need for separate Probate proceedings in each State. 

Important Considerations

• Funding the Trust:To avoid probate, all assets must be properly transferred into the trust during your lifetime. That means Transfer on Death Deeds, Beneficiary Designations and Trust Accounts.
• Ongoing Maintenance: You must ensure that new assets acquired are also transferred to the Trust to keep it fully funded. That means updating Transfer on Death Deeds, Beneficiary Designations and Trust Accounts.
• Cost and Complexity: Establishing a Revocable Living Trust is generally more expensive and complex to set up than a simple Will, but Legal Insurance addresses this issue. 
• Need for a Pour-Over Will: You do not need a “pour-over will” to catch any assets not transferred into the Trust, because an Intestate Probate with agreement of Beneficiaries is superior and promotes family harmony. The Post-Covid Electronic Wills Statute in Washington means that Electronic Wills are likely to be presumed lost of destroyed. It is better, if a Probate in necessary, to have an Intestate Probate which doesn’t require validation of a Will by a Court.

• Beneficiary designations: Many assets, such as retirement accounts (e.g., 401(k)s and IRAs), life insurance policies, and some bank accounts, pass directly to the named beneficiary without going through a Will or Probate.

Beneficiary designations are a vital component of estate administration because they allow assets to be transferred directly to your intended recipients, bypassing the lengthy, costly, and public probate court process. For certain assets, these designations override instructions in your will, making them a powerful tool for ensuring your wishes are carried out swiftly and efficiently. 

How beneficiary designations streamline estate administration

• Bypass the probate process: Many accounts, such as life insurance policies, 401(k)s, IRAs, and Payable-on-Death (POD) or Transfer-on-Death (TOD) bank accounts, have beneficiary designations. When a beneficiary is named, the assets pass directly to that person, avoiding the probate court entirely. This can save your loved ones significant time, money, and stress.
• Prevent unintended consequences: If you do not name a beneficiary, or if your designation is outdated, the financial institution holding the asset must follow its own default rules or state intestacy laws. This could lead to assets being paid to an ex-spouse, an unintended relative, or a minor child, which may then require court intervention.
• Provide faster access to funds: For certain assets like life insurance, having a named beneficiary means the proceeds can be paid out almost immediately upon your death, after the beneficiary submits the required paperwork. This is crucial for dependents who may need immediate financial support.
• Override a will: A beneficiary designation takes legal precedence over your will for that specific asset. For example, if your will states that your son should inherit your IRA but the beneficiary form names your ex-spouse, your ex-spouse will receive the funds. 

Risks of not using beneficiary designations

Without proper beneficiary designations, your estate administration could face several complications:

• Increased costs and delays: When an asset defaults to your estate, it must go through probate. This can be a lengthy and expensive legal process involving attorney and court fees, which reduces the value of the inheritance for your heirs.
• Disputes among heirs: Unclear or missing beneficiary information can lead to conflict and confusion among family members, sometimes resulting in expensive and emotionally draining legal battles.
• Unfavorable tax consequences: For certain assets, like retirement accounts, naming your estate as the beneficiary can lead to unfavorable tax treatment for your heirs. For example, it could accelerate the income tax burden on the inherited funds.
• No control over the legacy: If you fail to name a beneficiary, your state’s laws of intestate succession will determine who receives your assets. This may not align with your personal wishes, such as leaving a portion of your estate to a close friend or a charity. 

• Joint ownership: Assets held in joint tenancy with the right of survivorship automatically pass to the surviving co-owner upon your death, superseding anything a Will might say. 

Using joint ownership to avoid probate, particularly in appreciated assets like real estate, carries significant tax risks concerning the cost basis. While probate is bypassed, the beneficiaries may forfeit the “stepped-up” cost basis, leading to a much larger capital gains tax liability when they sell the property. 

Loss of stepped-up basis for non-spouses

When a beneficiary inherits an asset through a will or trust, the asset’s cost basis is “stepped-up” to its fair market value on the date of the original owner’s death. This can significantly reduce or eliminate capital gains taxes if the beneficiary sells the property soon after inheriting it. 

However, with joint ownership, especially with non-spouses, only the deceased’s portion of the asset gets a step-up in basis. The surviving joint owner’s original basis is still based on the asset’s purchase price. 

Example of lost tax benefits:

• A parent buys a house for $100,000.
• The parent adds their child as a joint owner.
• Upon the parent’s death, the house is worth $500,000.
• Because of joint ownership, the child’s half of the house retains the original basis of $50,000 (half of the $100,000 purchase price).
• The deceased parent’s half is stepped-up to its value at death, $250,000 (half of $500,000).
• The child’s total cost basis for the house is $300,000 ($50,000 + $250,000).
• If the child sells the house for $500,000, their taxable capital gain is $200,000 ($500,000 – $300,000), resulting in a substantial tax bill.
• If the child had inherited the entire house through a trust or will, their cost basis would be the full $500,000. The capital gains would be zero, resulting in no tax on the sale. 

Gift tax implications

The IRS may consider adding a new owner to a joint account or deed as a gift. If the value of the gifted portion exceeds the annual gift tax exclusion, you may need to file a gift tax return. For larger assets, this can trigger gift tax liability and use up a portion of your lifetime gift tax exemption. 

Exposure to the co-owner’s liabilities

Once an asset is jointly owned, it is exposed to the new co-owner’s financial risks. If the co-owner files for bankruptcy, is sued, or gets a divorce, creditors can go after their share of the jointly owned asset. This could force a sale of the property to satisfy the co-owner’s debts. 

Loss of control

A joint owner can take actions that affect the asset without the other owner’s full consent or knowledge, especially with financial accounts. With real estate, you cannot sell, refinance, or take out a mortgage on the property without the co-owner’s approval. This can lead to disputes and potentially force legal action. 

Unintended disinheritance

Joint ownership supersedes a will. The asset automatically passes to the surviving joint owner, regardless of what the will states. This could accidentally disinherit other heirs who were meant to receive a portion of the estate. For example, if a parent has two children but only makes one a joint owner on a bank account, that child will receive all the funds, regardless of a will that stipulates an equal split. 

Alternatives to joint ownership

Estate planning tools such as revocable trusts, payable-on-death (POD) accounts, and transfer-on-death (TOD) deeds can allow you to avoid probate with fewer risks. These methods allow assets to pass directly to beneficiaries while maintaining the original owner’s control and preserving potential tax benefits.

Disadvantages of relying on a Will alone

Compared to alternative tools, a Will has several limitations that make it a less-than-ideal centerpiece for many modern Estate plans:

• Probate Court is required: A Will is simply a set of instructions for the Probate Court, which is the public, legal process of distributing a deceased person’s Estate. This process can be lengthy, expensive, and stressful for families.
• No provision for incapacity: Unlike a living Trust, a Will offers no legal protection or guidance for asset management if you become incapacitated. A separate durable power of attorney is required for this.
• Lacks privacy: Because a Will goes through the public Probate process, your Estate inventory and other financial details become a matter of public record.
• Limited control for heirs: Assets distributed through a Will are given to heirs all at once. A Trust can provide more control, such as staggering inheritance distributions to minor children until they reach a certain age.
• Doesn’t cover all assets: Your Will does not apply to assets that are titled in a Trust or that have a named beneficiary, such as a life insurance policy. 

Despite the growing prevalence of alternative Estate planning methods, a traditional Will is sometimes still used for tasks that are better accomplished by other means.

• Handling leftover assets: Traditionally, before Covid, Estate plans combined a Trust with a “Pour-Over Will.” This ensures that any assets accidentally left out of the Trust—such as a newly purchased car—are transferred to the Trust upon your death. A Will is not needed for vehicles because the DOL has an Affidavit that can be completed to transfer any motor vehicle with a a Death Certificate. Washington also has an Affidavit of Small Estates statute that allows the transfer of up to $100,000 without a Court Order. Beneficiaries can sign affidavits consenting to who is the Personal Representative, whether a bond will be required, and whether Non-Intervention Powers will be requested to so that no further contact with the Court is needed after the Letters of Administration are issued. Agreement by Beneficiaries promotes family harmony and decreases the chance of theft. Probate of a Will can be contentious and theft is common. I have filed Intestate Probate Petitions even though the Client had a paper Will simply because I didn’t want to have to mail the original to the Court in Seattle and risk that the Court would find some defect and require an Intestate Probate Petition (without a Will). Without a Will, the process is entirely electronic.
• Simple Estates: Some believe that for individuals with very simple finances and few assets, a Will may still be the most straightforward and cost-effective option but this is false.  Probate is the most expensive and least straight forward method of transferring all asset types.

Why Some Erroneously Believe That Wills Remain Important

• Clarity and Instruction: Wills provide clear instructions for the distribution of assets and the care of dependents, minimizing potential conflicts among family members.  Revocable Living Trusts do all of that and a better job of minimizing conflict because the Successor Trustee has to communicate with Beneficiaries before acting. Washington State allows a Personal Representative to Petition the Probate Court to open a Probate without the knowledge of the other Beneficiaries who receive notice of the Appointment by the Court in the form of Letters of Administration with Non-Intervention Powers. That means the Personal Representative can act without any further contact with the Court. It is quite possible for a newly appointed Personal Representative to steal before other Beneficiaries get notice by mail.
• Guardian Appointment: The Washington Legislature allows appointments of Guardians in a Power of Attorney for Finances or a Will. A Power of Attorney for Finances is superior because it applies while you are alive, and does not require Court intervention to use like a Will.  Putting the Guardianship Appointment doubles the cost because a Probate Lawyer files the Probate Petition and a Family Law Attorney files the Guardianship Appointment Petition.
• Personal Representative (Executor) Nomination: Wills name a Personal Representative to administer the Estate, ensuring a Trusted individual manages debts, taxes, and asset distribution according to the Testator’s wishes. Revocable Living Trusts do a better job of ensuring that all of those things are done quickly, privately, & cheaply which is the opposite of Probate Court which is public, slow, & expensive.
• Disinheritance of estranged adult children

Historically, Wills were used to override the Intestacy Statute which gives equal shares to all children. If a parent didn’t want to give equal shares that was in the Will. Historically, there were foolish customs sometimes still used today of giving a token amount to a beneficiary. This is ridiculous and serves no purpose. Probating a Will gives Beneficiaries the right to legally contest the Will. Probate requires notice to all Beneficiaries. This is an ineffective means of disinheritance which has been made irrelevant by the Transfer on Death Deed Statute for Real Estate and the Beneficiary Designation Stature for 401(k) and brokerage accounts, and Revocable Living Trust accounts or Payable on Death Beneficiaries. All of those options are superior to a Will because the require no notice and are entirely private without the risk of litigation by a disinherited Beneficiary. I have literally had clients tell me that they don’t care if they don’t get anything as long as their siblings don’t get anything so they are Willing to engage in hostile litigation for the purpose making the Estate insolvent.

The millenia of history regarding Last Will & Testaments contributes to people repeating the same old mistakes for centuries without thinking. Giving a token gift to a disinherited adult child was done in ancient Rome, but has no purpose in modern society.

My own father died in December of 2024 and left me and my sister $200 each. This was a stupid gesture. Neither one of us will accept such a gift that would be insulting if it weren’t so pathetic and idiotic. That amount is insufficient to deter a Will Contest with a No-Contest clause disinheriting anyone Contesting the Will. For example, say an Estate was $5 million and there were two adult children who stood to inherit $2.5 million each. If $250,000 was left to each child, that is only 10% of their total inheritance, but it is likely enough to deter a lengthy and risky Will Contest.

In ancient Rome, giving a token gift to a disinherited son was a necessary legal action to prove that the son was intentionally and not accidentally omitted from the will

. Under Roman civil law, a will was not valid if it failed to mention any immediate family member, whether by including them or expressly disinheriting them. 

The token gift was part of a ritual known as “emancipation,” which dissolved the father’s absolute power (

patriapotestasp a t r i a p o t e s t a s𝑝𝑎𝑡𝑟𝑖𝑎𝑝𝑜𝑡𝑒𝑠𝑡𝑎𝑠) over his children. In later Roman law, the practice became a formality used by testators to demonstrate their intent. 

Context of the Roman legal tradition 

The practice of giving a token inheritance can be understood through two key aspects of Roman law: 

• Patria potestas: Roman law gave a father, or paterfamilias, ultimate legal power over his children and descendants, known as patria potestas. All property acquired by a child was legally the father’s, and the father could even sell his son into servitude.
• Wills and intestacy: A Roman citizen generally sought to create a will to dictate the division of their property, rather than letting the standard rules of intestacy apply. However, the will had to follow a strict formula and explicitly name or disinherit immediate heirs to be considered legally valid. 

Significance of the token gift 

By giving a token gift to a disinherited son, the father was performing a legal formality with several implications: 

• Avoiding legal challenges: If a son was simply left out of a will, it was assumed to be an oversight. This would open the will up to a legal challenge on the grounds that it was “undutiful” (querela inofficiosi testamenti). By explicitly acknowledging the son with a token gift, the father demonstrated his clear and intentional decision to exclude him.
• Signaling emancipation: The process of disinheritance for a son legally within the father’s power (potestas) was complex. It required a special procedure of “emancipation” that included a ceremonial sale of the son three times. With each “sale,” the son was ritually freed from his father’s authority.
• Formal declaration: The token gift became a symbolic way to declare that the son had been formally and knowingly excluded. This satisfied the legal requirement of mentioning all male children by name in the will to ensure its validity. 

Symbolic rather than financial 

The value of the gift was not important; its function was purely symbolic. The gift was not intended to provide for the son, but to serve as a legal marker that his exclusion from the main inheritance was a conscious choice by the father. The ultimate goal was to ensure the will’s legal integrity and prevent family disputes from undermining the testator’s wishes after his death. 

Interestingly, there was a time in ancient Rome when biological sons could be disinherited, but not adopted sons. That is why when the Apostle Paul refers to Jesus adopting followers as sons it has significance under Roman law of the time.

Ephesians 1:5 says:

“he predestined us for adoption as sons through Jesus Christ, according to the purpose of his will.”

Abolishing the myth: Some people still operate on the outdated belief that leaving a child a single dollar is a legal requirement for disinheritance. This is a myth, and explicitly stating the name, birthday, and sex of the child and stating the disinheritance followed by for reasons known to them is a clearer and more modern legal strategy which doesn’t give a basis to be attacked in a Will Contest for being factually incorrect. 

Providing a final message

For some, the nominal gift is not about legal strategy but is a symbolic gesture of disapproval. While this can have serious legal implications and backfire, some choose the “insulting” amount as a final statement to an estranged child. 

Potential drawbacks

The “token gift” strategy is not advisable, and modern estate planners discourage it. 

• Beneficiary rights: By naming a child as a beneficiary—even for $1—the executor is legally required to send them formal notices and accountings. This can be an administrative hassle and give the estranged child a way to cause trouble during the probate process.
• Fueling conflict: The insult of a token gift can be the final straw that provokes an estranged child to launch a bitter and costly will contest. 

The Washington Legislature has created an Estate Administration System that empowers citizens to do what they want with their property without any contact with the Probate Court if they do a few simple things.

The conditions of the ancient world don’t exist anymore, yet people still use vastly outdated techniques to administer their Estates.

While many modern options for estate planning exist, people continue to use outdated techniques due to common avoidance behaviors, misconceptions, and the perceived complexity and cost of creating a comprehensive plan. Many also fail to update their existing plans, which causes them to become outdated over time. 

Why people avoid modern estate planning

Reluctance to face mortality

• Many people are psychologically uncomfortable with the idea of death or incapacitation and avoid thinking or talking about it. This is a primary driver of procrastination.
• Some believe that planning for death or talking about it will somehow hasten it, an irrational but powerful subconscious belief. 

Belief that estate planning is for the wealthy

• It is a common misconception that estate planning is only for the very rich, so people with more modest assets believe it does not apply to them. Estate Planning is about People; Not Property, so it doesn’t matter what you have. The point is to think about who is in your life and what you want for them after you are gone.
• Anyone with assets, including a home, online bank accounts, or digital property, can benefit from a modern plan because Probate costs several thousand dollars and lasts at least 6 months and requires Public Disclosure of Assets such as Real Estate that may be burglarized as a result of being listed in the Probate Inventory. 

Perceived cost and complexity

• Hiring an estate planning attorney and using more sophisticated tools like trusts can be expensive, and many assume that all options are cost-prohibitive. Legal Insurance is a huge help with the cost. MetLife offers an Individual Premium Plan that is very affordable.
• The legal jargon and perceived complexity of the process also intimidate many people, who don’t know where to start. 

“Later” syndrome

• Estate planning is an important but not urgent task for most people. As a result, it is easy to indefinitely postpone in favor of more immediate concerns. 

How existing estate plans become outdated

Even for those who have a plan, a “set it and forget it” mindset leads to documents that no longer reflect their modern lives. 

• Changes in family dynamics: Blended families, divorces, deaths, new births, or a shift in a relationship can all make existing wills and trusts irrelevant or even counter to a person’s wishes.
• Outdated beneficiary forms: Beneficiary designations on retirement accounts, life insurance, and bank accounts override a will or trust. If these aren’t regularly updated, a former spouse or relative could inherit assets against the person’s current intent. The Washington Legislature passed a statute voiding the x-spouse as primary beneficiary upon entry of the Divorce Decree to avoid that issue.
• Neglect of digital assets: Older wills and trusts fail to account for a person’s digital life, including online financial accounts, cryptocurrency, and social media.
• Changes in tax and state law: Tax codes and state inheritance laws are constantly changing. A plan that was effective under old rules may now cause extra tax burdens for heirs.
• Reliance on problematic “simple solutions”: Using joint ownership to avoid probate can lead to new complications, such as tax problems or creditor issues. Other seemingly simple tools like “stretch” IRAs have been made obsolete by law changes.
• Using DIY documents: Generic, online estate planning forms often fail to account for unique family situations, tax consequences, or state-specific legal requirements, leading to potential disputes and invalidation. 

Better modern alternatives

For those willing to plan, modern estate planning offers many advantages that address the complexity of today’s financial landscape.

• Trusts: These can offer greater control, avoid probate, minimize taxes, and protect assets from creditors or irresponsible heirs. They are particularly useful for blended families or for planning for a loved one with special needs.
• Digital asset planning: Modern plans specifically address online accounts, providing clear instructions and appointing a digital executor to handle a person’s online life.
• Modern deeds: An enhanced life estate deed can transfer property outside of probate while allowing the owner to retain control during their lifetime.
• Integrated planning: Financial advisors and legal professionals can now provide holistic “life and legacy planning” services that address assets, tax implications, and family dynamics with a focus on ongoing updates.
• Will substitutes: For specific assets like retirement accounts and life insurance, using transfer-on-death (TOD) or payable-on-death (POD) designations can keep them out of the probate process entirely. 

Lying Liars as Obituary Writers

The history of omitting negative aspects from obituaries is rooted in centuries of social traditions that privilege memorializing the deceased positively and respecting the privacy of the grieving family. While public standards for truth in journalism have evolved, the function of most obituaries as a personal, family-driven tribute has kept the tradition of discretion firmly in place. 

Historical tradition of decorum

For most of their history, obituaries were not intended as objective biographical records.

• Early death notices: The earliest obituaries in the U.S. and Britain were simple announcements listing the deceased’s name and the details of their death. As death became less public and more medicalized during the late 19th and early 20th centuries, the focus shifted toward celebrating the person’s life rather than dwelling on morbid details.

A death notice tends to celebrate a deceased person’s life to honor their legacy, help surviving family members with the grieving process, and provide a positive and affirming sense of closure. While the news of a death is somber, focusing on the person’s positive impact can help lift the spirits of those left behind. 

For the grieving process

• Encourages positive remembrance: Writing a notice that highlights fond memories, stories, and the good times shared with the deceased helps friends and family focus on the positive aspects of the person’s life rather than just the sadness of their passing.
• Aids in closure: Seeing the details of a loved one’s life summarized can provide a sense of finality and comfort. It helps those who are grieving to reflect on the life that was lived, providing an important step toward acceptance.
• Offers a therapeutic outlet: Writing or reading a death notice can be a meaningful way to process emotions. As family members compile the memories and achievements of the deceased, they are often reminded of their loved one’s unique personality and spirit. 

To honor the deceased

• Tells their unique story: Every person has a unique life story, and a death notice provides an opportunity to tell and preserve it. It offers a glimpse into who the person was, including their unique character, values, and passions.
• Acknowledges accomplishments: The notice serves as a testament to the individual’s achievements, contributions to their community, and the legacy they leave behind. This provides inspiration for future generations.
• Reflects their wishes: For some, celebrating life in a cheerful manner is what the deceased would have wanted, often requesting that loved ones have a “party” instead of a mournful funeral. The celebratory tone honors this request. 

For the community

• Announces the news respectfully: Before the digital age, a notice was the quickest and most efficient way to inform a wide community—including distant friends, family, and colleagues—of a person’s death and funeral arrangements.
• Rallies support: By announcing the loss to the community, the notice allows people to offer condolences and support to the grieving family.
• Serves as a historical record: Obituaries and death notices are a form of historical record, documenting an individual’s life and ensuring their memory is preserved for future generations. 

• Purpose as a tribute: As obituaries grew longer and more biographical, they were increasingly written by family members rather than journalists. The primary purpose was to honor the deceased, inform the community of funeral arrangements, and aid the family’s healing process. This purpose created a strong incentive to highlight positive qualities while omitting flaws or negative actions.
• Don’t speak ill of the dead: This unwritten social rule, or “Eulogy Effect,” is a major cultural factor. It is widely accepted that during a period of grief, it is inappropriate to air grievances or disrespect the dead and their grieving family in public. Obituaries are traditionally seen as a final, protective statement. 

Reasons for omitting negative details

Beyond general politeness, a number of other factors have historically contributed to censoring negative aspects of a person’s life.

• Privacy concerns: Sensitive issues like mental health struggles, addiction, or stigmatized causes of death (e.g., suicide or contagious disease) were—and often still are—omitted to protect the family’s and the deceased’s reputation.

Issues like suicide and drug abuse are often omitted from obituaries due to the persistent social stigma surrounding them, a desire for family privacy, and a focus on commemorating the person’s life rather than the circumstances of their death. However, this practice has begun to change as some families choose to be open in an effort to raise awareness and reduce shame. 

Social stigma

For generations, there has been a powerful social taboo around specific causes of death, which influences what families choose to publicly disclose. 

• Suicide: Historically viewed as shameful or sinful, suicide carries a strong stigma that can lead to feelings of guilt and embarrassment for surviving family members.
• Drug abuse: Addiction was long perceived as a moral failing rather than a disease, and families often withheld the cause of death to avoid judgment from their community.
• Euphemisms: To avoid mentioning these topics, obituaries often use vague phrases like “died suddenly,” “passed unexpectedly,” or “after a brief illness”. 

Family privacy

The decision of what to include in an obituary is ultimately up to the family, who often desire privacy during their time of grief. 

• Respect for the deceased: The family may be honoring the deceased’s wishes, as some individuals prefer to keep their struggles with mental health or addiction private.
• Shielding loved ones: Relatives may choose to omit sensitive details to protect other family members from pain, shame, or scrutiny.
• Avoidance of public knowledge: Publicizing a stigmatized cause of death could invite unwanted questions, judgment, and gossip from the community, adding stress to the mourning process. 

Ethical and structural considerations

Several other factors contribute to why sensitive issues are often left out of obituaries.

• Focus on the life lived: Obituaries are meant to be a positive tribute celebrating a person’s life, accomplishments, and character, rather than focusing on the tragic circumstances of their death.
• Cost and brevity: Many newspapers charge for obituaries based on length. Leaving out the cause of death can make the announcement shorter and less expensive.
• Cause not immediately known: At the time an obituary is submitted, the official cause of death may not yet be known, as an autopsy or other investigation might be pending.
• Medical privacy laws: Legal and ethical rules, such as HIPAA in the United States, prevent funeral homes and medical personnel from releasing private health information, even after death. 

The changing trend

In recent years, the norm of omitting stigmatized causes of death has started to shift.

• Reducing stigma: Some families now intentionally include the cause of death to raise awareness about addiction and mental health, openly challenging the associated shame.
• Honoring the whole person: By speaking openly about suicide or addiction, families aim to provide a more complete and honest picture of their loved one, demonstrating that these struggles do not define their entire life.
• Advocacy and education: Mentioning the cause of death can turn a personal tragedy into a teachable moment for others, promoting public conversations and advocacy for mental health and addiction resources. 

• Family conflict: Obituaries can become battlegrounds for family disputes, leading relatives to deliberately distort or omit information. Examples include concealing a divorce, excluding children from other marriages, or exaggerating accomplishments.
• Legal concerns: In some cases, families may be unwilling to mention a cause of death or other details that could expose them to legal complications, such as a lawsuit.
• Maintaining a positive legacy: For public figures, the omission of character flaws or scandals is often a deliberate attempt to manage their public image and control how they are remembered. 

Modern shifts toward honesty

While the tradition of discretion remains the norm, the rise of online platforms and changing social values have introduced more complexity.

• Honest obituaries: Viral, brutally honest obituaries—though still rare—have begun appearing in recent decades. These are typically written by relatives to address a history of abuse, neglect, or addiction, often against the backdrop of significant family dysfunction.

While it’s true that the deceased cannot defend themselves against any claims made about how they lived their lives, they also can no longer be held accountable for doing harm. Death hands them a full exoneration. Because of this, an honest obituary may be a survivor’s only path toward closure.

This is what happened in the case of my sister who was hurt by our father’s disinheritance of her. My father died in December of 2024 at age 83. I had not spoken to him in 26 years and my sister hadn’t spoken to him in many years either. The reason was that he never wanted to be a father and wasn’t a father. He never had a father himself. Our parents divorced when I was 6. Larry, our Father, was too busy remarrying two more times, eventually three more time to care about us and had a “new family.” Larry did nothing for the college education of either of us. I changed my name from Garges to Mulvaney when I was 18 because I knew Larry was a zero in life, and would be after his death. He proved me right by giving $200 each to my sister and myself. He never cared, but it didn’t make any difference in my life. I am a lawyer married to another lawyer and we make considerably more income than my father ever made, so I don’t want or need anything from him.

• Media coverage: For public figures, professional journalistic obituaries are expected to be more truthful and comprehensive than a family-submitted notice. While they may still soften certain details, they are less likely to completely whitewash a controversial past, a standard that differs significantly from personal, family-written obituaries.

Obituaries for the rich and famous differ from those for the rest of us in their purpose, content, and the process by which they are written. A famous person’s obituary is a news item and a public record, while a regular person’s is a paid announcement placed by family members. 

Celebrity obituaries are news

Because famous people are public figures, their deaths are considered newsworthy events that impact society on a wider scale. Their obituaries are written by professional journalists and published in the news section of a paper, often on the front page. For non-celebrities, obituaries serve as personal announcements, placed as paid advertisements by the family alongside other death notices. 

Prepared in advance

For prominent figures, obituaries are often researched and written in advance of their death and kept on file by major news organizations. This practice, which can begin years or even decades before a person’s passing, allows for comprehensive, well-researched pieces to be published quickly. 

Extensive biographical detail

An ordinary person’s obituary typically includes basic biographical information such as birth date, hometown, and names of surviving family members. A celebrity obituary, by contrast, functions as a detailed biography and retrospective of the deceased’s public life. It provides deep context on their career, achievements, and impact, incorporating extensive reporting on interviews, performances, or political speeches. 

Focused on public legacy

While a personal obituary highlights a person’s unique character traits, family bonds, and hobbies, a celebrity obituary focuses more on public impact. It emphasizes how their contributions influenced public life, culture, or history. Any personal or family details are typically included to provide context for their public persona. 

Acknowledges a complex life

Unlike personal obituaries that tend to be celebratory, a news-written celebrity obituary may mention questionable or controversial aspects of a person’s life, if relevant to their public story. A journalist’s role is to provide a complete picture of the person’s legacy, not to hide or sugarcoat their past. 

Historical tradition

Historically, written obituaries were reserved exclusively for the wealthy, powerful, and notable members of society. It was only in the latter half of the 20th century that the practice expanded to include everyday people in newspaper columns. Today, obituaries for the famous continue this tradition by documenting the lives of those deemed most significant to society.

• Different publication standards: Today, the standard for omission differs depending on the context. Paid death notices, submitted by families, are treated differently from journalist-written obituaries for notable people. Families can write their own narratives, and newspapers and hosting websites have limited ability to interfere as long as the notice does not violate content standards such as libel. 

Publication standards significantly affect the content of obituaries by dictating the submission process, acceptable information, cost, and overall tone. The rules can vary widely depending on whether the notice is a paid, family-written announcement or a feature story written by a newspaper’s staff. 

Editorial vs. paid notices

A key standard affecting content is the distinction between a paid “death notice” and an editorially written “obituary”. 

• Paid death notice: A family submits and pays for a typically brief announcement. The content is subject to the publication’s formatting and length guidelines, with costs often calculated by word or line.
• Editorial obituary: These are reserved for prominent or notable public figures. They are written by newspaper staff, not the family, and include more biographical detail and context. While families can request one, the newspaper makes the final decision on whether to publish it. 

Content restrictions and accuracy

To protect readers and maintain journalistic integrity, publications impose clear standards on the content of all death announcements.

• Verification: Publications generally require verification of death from a funeral home or crematorium before publishing a notice. Some may refuse to accept changes to an already-published notice if they cannot verify its accuracy.
• Liability and defamation: Publications will not print content that is libelous, defamatory, or promotes hate speech. As long as a notice does not violate these rules, the publication will typically not intervene in family disagreements over an inaccurate but non-libelous notice.
• Privacy and security: To protect surviving family members, newspapers and online platforms advise against including sensitive information that could be misused, such as a home address, the exact birth date, or the maiden name of surviving relatives. 

Structure and formatting

To ensure consistency, publications often require that obituaries adhere to a specific format. Most guidelines cover the following elements:

• The basics: The deceased’s name, age, date of death, and city of residence are generally required at the start of the announcement.
• Biographical information: Many publications will ask for details about the deceased’s birth, career, education, and hobbies.
• Family members: Standard practice includes listing surviving relatives, such as a spouse, children, and parents.
• Service details: Information about any funeral, memorial service, or donation requests is a common feature.
• Photos: While optional, many publications allow a photo to be included for an additional fee. 

Cost-based length

Since most death notices are paid advertisements, the price often directly correlates with the length of the submission.

• Concise announcements: Families on a budget may opt for a shorter notice that includes only the essential facts to keep costs down.
• Full life stories: For those with a more flexible budget, longer, more detailed stories celebrating the deceased’s life are possible, often with an online version that allows for greater length. 

Online vs. print

The rise of online memorials has also changed publication standards. While print editions have space limitations and cost restrictions, online platforms offer greater freedom. Many newspapers partner with online memorial sites like Legacy.com to publish longer versions of paid death notices, providing more space for personal stories and anecdotes.

____________________________________________________________________________________

---

Washington State residents can meet with me in Zoom/DocuSign from anywhere in the world, and I can notarize their electronic signatures because I am a remote online notary.  Just email me an image of your photo ID.