What\u27s in the Third and Final Volume of the New Restatement of Property that Estate Planners Should Know About

Professor John Langbein and I have just concluded a twenty-year project for the American Law Institute to restate the law of donative transfers. The official title of our three-volume Restatement is the Restatement (Third) of Property: Wills and Other Donative Transfers.1 We refer to it herein simply as the Property Restatement. The third and final volume of the work was published in the last days of 2011. Professor Langbein spoke about certain of the initiatives in the two earlier volumes, which set forth the principles governing the law of wills, intestacy, interpretation of instruments, and the nonprobate system. The concluding volume covers class gifts, powers of appointment, future interests, and perpetuities. In our division of labor today, I will be speaking about that material. Because I will not be able to cover all of the topics in the third volume, I have added an Appendix to the print version that reproduces the Table of Contents for that volume. Although the Property Restatement does not address the tax-planning side of the work of estate planners, it does address the state-law side of the practice: the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents, as well as preparing to argue cases at both trial and appellate levels. When it comes to litigation, the courts pay attention to the Restatement and usually follow it.2 The Property Restatement, not the Trusts Restatement, deals with the interpretative matters applicable to dispositive provisions in trusts as well as in wills and will substitutes. Consequently, in construing the meaning of a dispositive provision in a trust, the relevant Restatement is the Restatement of Property, not the Restatement of Trusts