The impact of NCBE dropping wills and trusts from the Next Gen Bar Exam

As widely reported, the National Conference of Bar Examiners ("NCBE"), which develops the Uniform Bar Exam ("UBE") currently used by 40 states, has dropped wills and trusts as a tested subject matter from the Next Gen Bar Exam scheduled to be rolled out in July 2026. Not all 40 states currently using the UBE have signed on to the Next Gen Bar exam, but an increasing number are doing so. When approached about the decision to drop wills and trusts, officials at NCBE advised that trusts and estates concepts will be included between 2026 and 2028 on the performance portions of the exam.  The performance portions provide the necessary law, so it is not necessary to have substantive knowledge ahead of the exam. California announced in May of this year that it would opt out of using the Next Gen Bar exam, but a Blue Ribbon commission organized to study the bar exam in California recommended that the topic be dropped from California's bar exam as well. Fortunately, the State Supreme Court, in its Administrative Order 2024-10-10-01 issued Oct. 10, 2024, rejected this recommendation, keeping estate planning, trusts and probate on the California exam at least for the time being.

Even with California for the moment bucking the trend, trusts and estates practitioners are justifiably worried about the impact of decisions to remove wills and trusts from the exam throughout large portions of the country. There is already an alarming drop in tenured wills and trusts professors in law schools around the country. And the removal of the subject from the majority of bar exams will only further that drop - if the subject is not tested on the bar, students are less likely to take it in law school, and, thus, there is less need to teach it and certainly less need for a tenured professor to do so. Law students study at law schools across the country even when they wind up practicing in California, and the breadth of that education matters.

And even an attorney trained and barred in California frequently needs competent assistance in jurisdictions outside of California. Because probate jurisdiction is in rem and each state has its own system, if a California resident dies owning property in another state, there needs to be a probate in that state to handle that property. Absent multiple bar admissions, a California lawyer is neither competent nor licensed to handle the property in another state.  The same is true for issues relating to conservatorships, guardianships and a multitude of other property transfers. Thus, the general lack of training on this subject will necessarily impact even states where the subject is taught and tested.

Unfortunately, this downward trend in the teaching of wills and trusts comes at a time when skilled trusts and estates attorneys are most needed.  In a 2023 survey of attorney professional liability claims, Ames & Gough reported that, for the third year in a row, insurers saw the largest number of malpractice claims related to trusts and estates. The same survey reported that "failure to know or properly apply the law" was one of the top causes of malpractice claims. And the ABA Standing Committee on Lawyers' Professional Responsibility 2016-2019 Report found that trusts and estates claims were 10% of all malpractice claims. These numbers are not surprising in light of the importance of trusts and estates law to so many areas of the public's life.

Trusts and estates touch virtually everyone as everyone dies, and any property they die holding needs to be transferred to another owner. Thus, almost every member of the public is touched by the issue. In fact, more than one million probate or estate cases are filed in state courts each year with this number likely to escalate with the aging population. Before 2045, baby boomers and the silent generation will pass a total of $84.4 trillion in assets with approximately $72.6 trillion of that going directly to heirs.  And nearly $500 billion is passed to charities each year. Trusts and estates attorneys are instrumental in the vast majority of these transactions, ensuring that assets pass as efficiently as possible and as intended. And while many would assume that this is an issue confined to those wealthy enough to need tax planning, the fact is that even where an estate does not involve significant estate taxes, there are many other issues that require the expertise of trusts and estates attorneys.

The recent heirs' property initiatives demonstrate the impact of lack of estate planning for those without generational wealth. Heirs' property is family property that typically results from families that do not do any estate planning. As a result, the property passes via intestacy, divided among however many intestate heirs exist. This may go on for generations. The common ownership created by this situation often results in partition actions and certainly discourages the accumulation and combined use of family wealth. Although heirs' property exists in families of every race and ethnicity, this situation disproportionally affects African American communities. The Uniform Partition of Heirs Property Act has been drafted to address these issues, but competent and plentiful estate planning and advice is necessary to address issues like this for underserved communities.

Another situation is that there are over 50 million older Americans, soon to be 22% of the population, and Alzheimer's is expected to affect 18 million people by 2050. Planning and assistance for these people is traditionally the field of trust and estates practitioners. An additional 10% of the elderly population experience abuse. Again, trusts and estate practitioners are instrumental in taking the necessary steps to protect these elders, whether through powers of attorneys and trusts, conservatorships, or the necessary litigation to recover their property.

In other words, knowledgeable trusts and estates practitioners are necessary to clients in all economic situations, and a dearth of such attorneys will be a disservice to the public.