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Articles 1 - 30 of 30
Full-Text Articles in Estates and Trusts
Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly
Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly
Journal of Intellectual Property Law
The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …
Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin
Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin
Georgia Law Review
In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be …
Heirs Property In Georgia: Common Issues, Current State Of The Law, And Further Solutions, Caitlin Henderson
Heirs Property In Georgia: Common Issues, Current State Of The Law, And Further Solutions, Caitlin Henderson
Georgia Law Review
In Georgia, real property passes through an intestate estate
in the form of heirs property. Under this system, heirs share
ownership of the property as tenants in common. This form of
ownership poses several obstacles to realizing the land’s full
potential and, in certain circumstances, courts will partition
the property in forced sales or will physically divide the
property among the heirs. Heirs property and its accompanying
problems are particularly common in Georgia due to strict
policies concerning will execution formalities. Georgia and the
U.S. Congress have attempted to cure the problems associated
with heirs property through the adoption of …
Convention Providing A Uniform Law On The Form Of An International Will: Problems With State Probate Law, Jack N. Sibley
Convention Providing A Uniform Law On The Form Of An International Will: Problems With State Probate Law, Jack N. Sibley
Georgia Journal of International & Comparative Law
No abstract provided.
Give Me Liberty And Give Me Death: The Conflict Between Copyright Law And Estates Law, Michael Rosenbloum
Give Me Liberty And Give Me Death: The Conflict Between Copyright Law And Estates Law, Michael Rosenbloum
Journal of Intellectual Property Law
No abstract provided.
Tax Planning: Foreign Investment In United States Real Property, William H. Newton Iii
Tax Planning: Foreign Investment In United States Real Property, William H. Newton Iii
Georgia Journal of International & Comparative Law
No abstract provided.
Creation, Administration, And Effectiveness Of The "Failsafe" Trust For Nonresident Aliens, Andrew H. Prussack
Creation, Administration, And Effectiveness Of The "Failsafe" Trust For Nonresident Aliens, Andrew H. Prussack
Georgia Journal of International & Comparative Law
No abstract provided.
The Testamentary Foundations Of Commercial Arbitration, Peter B. Rutledge
The Testamentary Foundations Of Commercial Arbitration, Peter B. Rutledge
Scholarly Works
This Article offers the first systematic treatment of the relationship between commercial arbitration and testamentary arbitration. (By testamentary arbitration, I mean an arbitration clause contained in a will requiring beneficiaries to resolve differences over the estate by means of an enforceable decision by a private party rather than judicial resolution in a probate court.) Recent scholarship and jurisprudence have questioned the enforceability of these arrangements as incompatible with the requirement of a written "agreement" between parties to the arbitration. Contrary to these views, close examination of the historical record of testamentary arbitration leading to the Federal Arbitration Act's enactment reveals …
A Comparative Guide Of Where To Die: Should The United Kingdom Repeal Its Inheritance Tax?, William T. Thistle
A Comparative Guide Of Where To Die: Should The United Kingdom Repeal Its Inheritance Tax?, William T. Thistle
Georgia Journal of International & Comparative Law
No abstract provided.
Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack
Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack
Georgia Law Review
This Article questions, for the first time, the equitable and policy basis of Slayer Rules, the rules that bar killers from inheriting from those they kill. It shows that killings that involve inheritance usually occur as a result of domestic abuse or severe mental illness, and argues that, because the legal and social service systems offer little help to those trapped in abusive relationships or those disabled by mental illness, it is not justifiable for those systems to deprive the killer of an inheritance when he or she takes the only means of escape available.
Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver
Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver
Georgia Law Review
The recent Georgia Supreme Court ruling in Levenson v.
Word exposes difficult interpretative and equitable
questions posed by Georgia's slayer statute. The case
began after Debra Post inherited her husband's estate but
was then arrested for his murder. She used her husband's
life insuranceproceeds and the real property she acquired
through the murder to pay two law firms to defend her in
the murder trial before pleading guilty.
The court-appointedadministratorof the estate sued the
law firms for conversion for not returning these illegally
and immorally acquired funds. Under the Georgia slayer
statute, a murderer forfeits the right to serve as …
Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control?, Verner F. Chaffin
Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control?, Verner F. Chaffin
Scholarly Works
Georgia should resist the urge to join the parade of states that have overturned the Rule Against Perpetuities. We do not neet the dynasty trust in Georgia. The repeal of perpetuities laws ignores the reasons for the Rule Against Perpetuities and uncritically assumes that preserving family wealth in perpetuity is a desirable social goal. The Rule is still needed to prevent persons long removed from the current scene from tying up wealth without restriction and from unduly influencing the behavior of those living in the present. For background purposes, this Article reviews the legislative history of Georgia's Rule Against Perpetuities …
Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang
Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang
LLM Theses and Essays
Bankruptcy is a judicial process purporting to regulate and adjust the financial relationships between debtors and creditors which come into a deadlock. In the modern United States, bankruptcy has become a concept pervading each corner of the social and economic lives. It touches mass tort victims, large corporations, small family business, government institutions, and even normal individuals. The appearance of the modern bankruptcy law of the United States is signaled by the enactment of the Bankruptcy Reform Act in 1978 which, together with later amendments, constitute the current Bankruptcy Code of the United States; but also help them strategically restructure …
Estate Creditors, The Constitution, And The Uniform Probate Code, Sarajane Love
Estate Creditors, The Constitution, And The Uniform Probate Code, Sarajane Love
Scholarly Works
The United States Supreme Court's decision in Tulsa Professional Collection Services, Inc. v. Pope caused the usually staid legal enclave of estate administration to sit alert. The Court declared unconstitutional an Oklahoma statute that barred creditors of decedents from filing claims against the decedents' estates two months after published notice of the commencement of probate proceedings. The statute violated the due process rights of known and reasonably ascertainable creditors because it did not require a better form of notice to them. In failing to require actual notice to known creditors, the statute was not drastically atypical of other statutes regulating …
Ethical Considerations In Medicaid Estate Planning: An Analysis Of The Aba Model Rules Of Professional Conduct, Eleanor Crosby Lanier, Ira M. Leff
Ethical Considerations In Medicaid Estate Planning: An Analysis Of The Aba Model Rules Of Professional Conduct, Eleanor Crosby Lanier, Ira M. Leff
Scholarly Works
The purpose of this article is to provide a starting point for discussion of ethical issues related to the practice of Medicaid estate planning. The authors explore the history of attorney involvement in planning and financing long-term care. They also analyze how the ABA Model Rules of Professional Conduct address the ethical dilemmas that arise in practice, using a case study to illustrate some of these issues. The individual authors' perspectives on this practice differ with respect to certain issues. One is a former Legal Services lawyer, and the other has a private practice which focuses on Medicaid estate planning.
Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson
Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson
Scholarly Works
While there are pervasive problems with the current ERISA legislation, this Article will focus only on survivor benefits and will concentrate in particular on the short-term marriage provision. This Article will maintain that facial neutrality notwithstanding, the short-term marriage provision is discriminatory in effect, grounded in dubious logic, and unsupportable from a historical perspective. In order to demonstrate this, this Article will delve thoroughly into the historical development of ERISA, with particular emphasis on the survivor benefit provisions. The depth to which this Article plumbs the general development of ERISA is intended to demonstrate the weak historical foundation on which …
Cable Traffic And The First Amendment Must-Carry Under A Diversity Approach And Antitrust As Possible Alternative, Bruno Vandermeulen
Cable Traffic And The First Amendment Must-Carry Under A Diversity Approach And Antitrust As Possible Alternative, Bruno Vandermeulen
LLM Theses and Essays
Recent technological progress in the field of telecommunications has greatly changed the competitive structure between broadcasters, cable operators, and telephone companies. The legal and economic environment for these media participants has shifted, and new problems have arisen. One major problem is the enhanced threat of concentration of media corporations, as corporate bigness becomes desirable and the number of diversified owners of media outlets continues to decrease. This paper analyzes broadcasting regulations and subsequent case law to show the concern by the legislature and regulatory agencies to preserve diversity in opinion and media-ownership through emphasis on “localism” and a “marketplace of …
Transfer -On-Death Securities Registration: A New Title Form, Richard V. Wellman
Transfer -On-Death Securities Registration: A New Title Form, Richard V. Wellman
Scholarly Works
This article is inspired by a new form for registering corporate shares that is now available to certain stockholders of Southwestern Bell Corporation (SBC). Designed to replace stock registrations that make two or more persons appear to be co-owners, the new form, referred to herein as a transfer-on-death (TOD) registration, enables a sole owner to register a designation of a death beneficiary in whose favor a transfer on death of the registered shares may occur outside the probate process. The new registration form extends a key provision of the Uniform Probate Code (U.P.C.) that was designed to encourage development of …
The Rule Against Perpetuities As Applied To Georgia Wills And Trusts: A Survey And Suggestions For Reform, Verner F. Chaffin
The Rule Against Perpetuities As Applied To Georgia Wills And Trusts: A Survey And Suggestions For Reform, Verner F. Chaffin
Scholarly Works
The prevalent criticism seems to be that the Rule Against Perpetuities, as presently applied, does not further the best interests of society and therefore should be changed to make it work better. To determine how well the Rule is operating, a critical examination will be made of Georgia statutory law and decisions involving its application to class gifts, private trusts, charitable gifts, commercial transactions, powers of appointment, and to various types of future interests including reverters, rights of entry, and executory interests. This Article will also explore techniques for avoiding the lethal effect of the Rule through draftsmanship, judicial construction, …
Dispensing With Administration, Estates Of Absentees, Simultaneous Death, Appointment And Qualification Of Domestic And Foreign Personal Representatives: A Critique Of Statutory Requirements, Verner F. Chaffin
Scholarly Works
This Article will survey certain aspects of decedent's estate administration, including the situations where administration may be avoided, the administration of estates of absentees and missing persons, and the problems involved where simultaneous death occurs. The various types of personal representatives, their appointment and qualification, and the distinctions between foreign and local personal representatives will be considered. Georgia law will be given a critical appraisal, its shortcomings will be delineated, and suggestions will be made for improvement in areas where the need is greatest.
Imperfect Gifts As Declarations Of Trust: An Unapologetic Anomaly, Sarajane N. Love
Imperfect Gifts As Declarations Of Trust: An Unapologetic Anomaly, Sarajane N. Love
Scholarly Works
This article will address circumstances under which 'gifts' of personalty, made without legal supervision by lay people, should be construed as declarations of trust in order to carry out the wishes of the property owner. The declaration of trust doctrine may salvage some attempted gift transactions because the property which is the subject of the trust need not be delivered to the trust beneficiary.
The Probate And Establishment Of Domestic And Foreign Wills: An Analysis Of Statutory Requirements, Verner F. Chaffin, Donna G. Barwick
The Probate And Establishment Of Domestic And Foreign Wills: An Analysis Of Statutory Requirements, Verner F. Chaffin, Donna G. Barwick
Scholarly Works
In our mobile society, ownership of property in Georgia by nonresidents is increasing. Few, if any, nonresidents prepare separate wills to dispose of their property in a foreign state or make sure that the one will adheres to the formalities of every state in which they own property. Thus, it is reasonable to expect that the problems of probate of foreign wills will increase in future years. Likewise, Georgia testators increasingly desire to name family members or friends domiciled in other states to serve in a fiduciary capacity under their wills. This Article will describe contemporary statutory patterns which deal …
A Reappraisal Of The Wealth Transmission Process: The Surviving Spouse, Year's Support And Intestate Succession, Verner F. Chaffin
A Reappraisal Of The Wealth Transmission Process: The Surviving Spouse, Year's Support And Intestate Succession, Verner F. Chaffin
Scholarly Works
This Article will attempt to describe and evalute certain aspects of the wealth transmission process. Attention will be given to the surviving spouse's intestate share and its size, the spouse's protection against disinheritance through forced share legislation or otherwise, and, more significantly, whether such a drastic legislative intrusion on freedom of testation is really needed. The adequacy of the support allowance for the decedent's family during the period of administration will also be explored. Attention will also be focused on selected provisions of the intestacy scheme, such as the order of succession, the doctrine of advancements, whether distribution is per …
Multiple Party Accounts: Georgia Law Compared With The Uniform Probate Code, Richard V. Wellman, J. Foster Clark
Multiple Party Accounts: Georgia Law Compared With The Uniform Probate Code, Richard V. Wellman, J. Foster Clark
Scholarly Works
Joint accounts established in financial institutions have become increasingly popular as inexpensive and convenient means of nontestamentary disposition of wealth. Varied and often unsuitable legal theories which have been relied upon to validate such attempts have, however, resulted in inconsistent case results in what should otherwise be a fairly simple area. In their article, Professor Wellman and Mr. Clark explain this disparate treatment and demonstrate the desirability of Article VI, Part 1 of the Uniform Probate Code as a statutory solution for the problems presented.
Descendible Future Interests In Georiga: The Effect Of The Preference For Early Vesting, Verner F. Chaffin
Descendible Future Interests In Georiga: The Effect Of The Preference For Early Vesting, Verner F. Chaffin
Scholarly Works
In past issues of the Review Professor Chaffin has illuminated many areas of Trust and Estates Law. In this Article he treats the inscrutable area of descendible future interests. Future interests which do not terminate at death obviously result in nonpossessory property passing through the estates of their holders. This Article first shows the unhappy consequences of such passage of property. It then points out not only that most draftsmen and testators are unaware of the undesirable consequences of creating descendible future interests, but also that many such interests exist as a result of Georgia's constructional preference for early vesting …
An Update On Federal Estate And Gift Taxation: Recent Decisions And Revenue Rulings, Verner F. Chaffin
An Update On Federal Estate And Gift Taxation: Recent Decisions And Revenue Rulings, Verner F. Chaffin
Scholarly Works
"Tax law is constantly evolving, never static, and always in the process of becoming something other than it was." In the following survey, Professor Chaffin brings us abreast of the latest changes in the field of estate and gift tax and gives us insight into the future direction of the law in this area.
The Time Gap In Wills: Shifting Assets And Shrinking Estates--Obsolescence And Testamentary Planning In Georgia, Verner F. Chaffin
The Time Gap In Wills: Shifting Assets And Shrinking Estates--Obsolescence And Testamentary Planning In Georgia, Verner F. Chaffin
Scholarly Works
If estates were static, property inalienable and assets immutable, this article would serve as nothing more than an academic exercise. However, estates grow and shrink, and the assets comprising an estate shift from one form of wealth to another. Obviously, such changes in the composition of property affected by a will can materially disrupt the testamentary plan of the decedent. In his Article Professor Chaffin investigates the effects of changes in property passing under a will and the legislative and judicial response in Georgia to the problems posed by such changes.
The Time In Gap In Wills: Problems Under Georgia's Lapse Statutes, Verner F. Chaffin
The Time In Gap In Wills: Problems Under Georgia's Lapse Statutes, Verner F. Chaffin
Scholarly Works
The makeup of the class of beneficiaries and the composition of the property affected by a will may be substantially altered by events occurring after the execution of the will by the testator. Naturally, such alterations may materially disrupt the testamentary plan. Such changes in beneficiaries typically involve the application of the state's so-called lapse statutes. In his Article, Professor Chaffin explores the Georgia statutory scheme and the problems which have arisen thereunder. In a subsequent article to appear in this volume, he will investigate the effects of ademption and abatement of property passing under the will.
Improving Georgia's Probate Code, Verner F. Chaffin
Improving Georgia's Probate Code, Verner F. Chaffin
Scholarly Works
No one would deny that our laws should provide an efficient and rational system for the transmission of wealth, whether by intestacy or under the terms of a will. The purpose of this article is to suggest several specific reforms and to attempt to explain why they should be made. No effort is made to enumerate all the troublesome areas. The changes recommended are not definitive or comprehensive, but are simply illustrative of matters that a complete study would bring to light. Total agreement with the writer's conclusions would be undesirable and certainly unexpected.
An Unprincipled Decision On A Will, Alan Watson
An Unprincipled Decision On A Will, Alan Watson
Scholarly Works
In this article Professor Alan Watson reviews the decision of Alfenus from Ancient Rome (D.28.5.45 Alfenus 5 dig).