Keywords
Conflict of laws, Choice of law, Transfer on death, Nonprobate transfer, Securities, Uniform Transfer on Death Securities Registration Act, Testamentary disposition, Successions, Donation mortis causa, Testament, Will, Will formalities, Favor testamenti, Louisiana Civil Code
Abstract
Louisiana courts have recently struggled with whether to recognize transfer-on-death forms for securities accounts as valid. Because these forms do not comply with Louisiana’s law of will formalities, they are incapable of transferring ownership of a decedent’s securities account under Louisiana law. However, some Louisiana courts have held that a decedent can circumvent Louisiana’s rule against nonprobate transfers by including a choice-of-law clause selecting another’s state law to govern the form. Still, other Louisiana courts have held that Louisiana’s rule against nonprobate transfers is a rule of public policy that cannot be avoided with a choice-of-law clause. This paper argues that, instead of applying Louisiana Civil Code article 3540 to determine which body of law governs the issue of formal validity of TOD forms, Louisiana courts should apply article 3528. Doing so would be more consistent with the nature of TOD forms and the policy underlying article 3528 and would help TOD form beneficiaries avoid the harsh consequences of Louisiana’s rule against nonprobate transfers. Finally, the paper addresses the Louisiana Uniform Death on Transfer Securities Registration Act and its shortcomings and offers suggestions for improving the Act.
Repository Citation
Brendan Cuti,
A Conflict of Classifications: The Curious Case of the Transfer on Death Form in Louisiana Law,
16 J. Civ. L. Stud.
(2024)
Available at: https://digitalcommons.law.lsu.edu/jcls/vol16/iss1/10