History Lives!

Vince Taormina
May 11, 2020

A brief history of estate planning

Those of you who know me well know that I am a history nerd.  In fact, the very first book that I can remember buying for myself was The French Revolution by Christopher Hibbert.  I was eleven.  It is precisely that interest in dead men and inconsequential facts that has probably kept me from getting dates over the years.  But, nevertheless, I continue to trudge through the world of non-fiction, learning as much as I can about Shay’s Rebellion, pre-Columbian Meso-America, and the 1934 California gubernatorial election between Democrat Upton Sinclair and Republican Frank Merriam.

My curiosity with history, especially in light of my new law firm, got me thinking: What is the history of estate planning?  When did societies first begin to develop concepts of property and lineal descent?  Who came up with Wills and Trusts?  And, more importantly, how did those estate planning tools make their way to the United States?  So, in the interest of putting you to sleep or exposing my innate capacity to bore people, I want to share with you a brief history of estate planning.

For much of human existence, the concept of ownership and property did not exist.  Scientists estimate that our species, Homo Sapiens, first emerged around 250,000 years ago.  But it wasn’t until about 8,000 years ago that our ancestors settled down and formed communities.  That means that for 242,000 years, the earliest humans roamed the earth as hunters and gatherers.  As far as we know, they had no concept of ownership.  Whatever the land naturally provided them was theirs.  It wasn’t until they wised up and settled into permanent settlements before property really developed as a concept.

About 4,500 years ago, the first legal code, issued by the Mesopotamian king Urukagina, recognized the property rights of individuals and protected those rights from seizure by the government.  Around the same time, the Ancient Egyptians began to solve the question of what happens to a person’s property when he/she dies by devising what would eventually become the Will.  But if we want to discover the origins of our current system of descent and distribution, we have to look to another ancient civilization: Rome.

During the Republican period, a commission of twelve men ratified the legal code of the Roman Republic in 451-450 B.C.  This code was known as the “Twelve Tables.”  Table V of the code dealt with inheritance and outlined how a person’s estate shall be distributed at death.  Under the provisions of Table V, if a man died intestate (meaning without a Will), then his property—women had no property because they themselves were the property of men—would be given to his closest male relatives.  If the man died with a valid Will, then his property would be distributed in accordance with that Will.  To be valid, a Roman Will had to be declared in public in the presence of seven witnesses.  Lawyers spent much of their time drafting this public declaration for the testator and arguing for their validity in the courts.  By some estimates, nearly 60-70% of all civil actions in Ancient Rome arose over problems connected to inheritance.

Although Rome collapsed in 5th Century A.D., the impact of its laws remained throughout much of European society.  The Roman law of intestate succession carried over into England after the Norman Conquest in 1044 in what became known as “primogeniture” succession.  Under this system, the oldest son received all of his father’s property.  It was this very system of succession that allowed the same noble families to control the same land for hundreds of years.  Although Wills still remained popular in medieval England, they were not the most popular estate planning tools among the country’s ruling elite.  Instead, most opted to plan their estates by way of the “Use,” the precursor to the modern Trust.

With the Use, landowners could avoid some of the stipulations imposed by the government, like taxes.  The Use also gave landowners great freedom in effectuating their estate planning desires and allowed them to grant their property to certain members of their family without having to follow the primogenitor system of inheritance.  Although originally a concept developed by the courts instead of Parliament—we generally call such concepts “common law”—Parliament enacted the Statute of Uses in 1535.  And in 1540, it passed the Statute of Wills.  However, it would not be until 1925 before Parliament abolished primogeniture inheritance.

When the English settled in what would eventually become the United States, they brought with them the “common law” tradition, meaning that most of the same laws that applied in England applied in the United States.  This included various estate planning laws.  However, beginning in the 1600’s, colonial governments began to diverge with the English when it came to intestate succession.  Fueled by skepticism of aristocracy and generational wealth, the Massachusetts Bay Colony and Pennsylvania became the first states to reject primogeniture inheritance.  Instead of estates passing to the oldest son at death, Massachusetts and Pennsylvania passed reforms to ensure that property was divided equally between the decedent’s children.  Such a system of intestate succession ensured that one family could not retain its wealth over hundreds of years and forced children of the wealthy to work hard for their own living since they could not rely on their parent’s wealth to support them.  By the time of the Revolutionary War, most colonies had adopted this more equitable view of intestate succession, a system which still exists in every state today.

Because “common law” applied equally to the English colonies, the Statute of Wills of 1540 also had effect in what would become the United States.  Most people could devise a Will so long as it was valid.  The same goes for “Trusts.”  While Trusts were used primarily for protection of real property in England, they eventually took on many of the same protections afforded by the Use.  Americans could now place most any property in Trust to protect their assets from government intervention, taxation, and creditors.

By the 1940’s, many states began to reform their Probate Codes (“Probate” applies only to Wills and is the court-sanctioned process through which a Will is disposed of after death) and implement uniform standards for Wills and Trusts.  And since the year 2000, many states, including Missouri, have adopted the Uniform Trust Code, providing for general uniformity in Trust creation and administration.  This approach summarized many of the court-manufactured doctrines relating to Trusts into one streamlined statutory approach.

If you made it this far without falling asleep or exiting out of your browser, you can see that estate planning goes back millennia.  The concept of intestate succession goes back all the way to the days of Rome.  The Will even predates that.  Estate planning has developed tremendously through the centuries.  I could have bored you by going through all of the developments, but I just wanted to give you the highlights.

Estate planning is serious business.  Its development over thousands of years proves this.  When you work with The Taormina Firm to create an estate plan that fits you and your family’s needs, you are becoming part of a tradition that dates back to the earliest days of civilization; you are becoming part of history.  So make your own history by choosing The Taormina Firm to craft a personalized estate plan for you.