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Deceased Beneficiary’s Share of Trust Goes to Her Children

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MARCH 22, 2004 VOLUME 11, NUMBER 38

Claude Baldwin, Jr., prepared a living trust to avoid probate of his estate. His trust directed a distribution to be made at his death to his sister Bernice Branch. The trust was silent as to what would happen if Ms. Branch died first. Of course Mr. Baldwin could have simply amended his trust when his sister did die but, for whatever reason, he did not. The result was a dispute between her two children and his son over who would receive the distribution.

Mr. Baldwin’s son argued that the distribution to his aunt should lapse as a result of her death. In that case he, as the ultimate beneficiary, would receive Ms. Branch’s distribution. Her two children, however, pointed to Alabama’s “antilapse” statute in their argument that the distribution should be made to them.

Antilapse statutes are designed to prevent exactly the problem in Mr. Baldwin’s story. They typically provide that when a person named in a will dies before the testator, the recipient’s children receive the bequest—assuming, of course, that the will does not provide otherwise. The problem with applying the antilapse statute to Mr. Baldwin’s situation is that the distribution was set out in his trust rather than in his will.

As living trusts have become popular estate planning devices problems have occasionally arisen over the applicability of laws governing wills. So, for instance, courts have held that there is no presumption of revocation of a trust arising from the fact that the original document is missing—though there is such a presumption for wills in most states. The Alabama Supreme Court in Mr. Baldwin’s case reaffirmed that wills and trusts are different creatures when it held that the antilapse statute is limited to wills, and does not apply to living trusts.

All was not lost for Ms. Branch’s children, however. The court ruled that the rights held by Ms. Branch arose at the time of signing of the trust (subject, of course, to Mr. Baldwin’s ability to amend). With her death her estate—and thus her children—received the distribution. Baldwin v. Branch, March 5, 2004.

On an interesting human-interest side note, one of the Justices of the Alabama Supreme Court took the time to specially complement the lawyer for Mr. Baldwin’s son. Although he lost, wrote Justice Champ Lyons, Jr., lawyer D. Harry Markstein, Jr., wrote a scholarly brief and argued the case with clarity and zeal. The fact that Mr. Markstein was 90 years old at the time of argument did not diminish his able representation, and younger lawyers would do well to emulate Mr. Markstein, said Justice Lyons (himself a sprightly 64).

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.