Estates and Trusts Commons^™

Dead Men (And Women) Should Tell Tales: Narrative, Intent, And The Construction Of Wills, Karen J. Sneddon

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The will is one of the most personal legal documents that an individual may ever create. The will is written in first person, present tense. Yet most wills reveal little of the person, the personality, or the personal. The inclusion of the testator’s relationships with people, entities, and property does little to convey the testator’s wishes, hopes, or fears. Some may assert that as a formal legal document, the will should be impersonal and be built using standardized, formulaic phrasing. Not only does such position overstate the accuracy of standardized, formulaic phrasing, but such position also ignores the foundational principle …

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

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In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

What Can The Apple Teach The Orange? Lessons U.S. Land Trusts Can Learn From The National Trust In The U.K., Jessica Owley, Lauren Gwin, Sally K. Fairfax

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The National Trust in England, Wales, and Northern Ireland is one of the oldest and most revered private land conservation organizations in the world. While the private land conservation movements in the United States and the United Kingdom began at a similar time and with similar tools, conservation attitudes and methods in the two countries diverged. Today, the National Trust dominates land conservation in the U.K. while the strength of the U.S. movement is the energy of over 1,500 smaller organizations operating at different scales across the country. Despite the differences, this project looks to the National Trust in England …

E-Notice And Comment On Due Process, Sergio J. Campos

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No abstract provided.

Strengthening The Passivity Default, Ian Ayres, Edward Fox

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In The Prudence of Passivity, Bryon Harmon and Laura Fisher (hereafter HF) argue that "passive management become the default approach for the investment of trust funds, to be abandoned only when circumstances specifically dictate the use of active management."' In this comment we argue that their thesis could be strengthened (i) by more clearly distinguishing between default law and default investment practices, (ii) by more clearly articulating their favored altering rules.

Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox

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Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost, however, in …

Probate Funding And The Litigation Funding Debate, Jeremy Kidd

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Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature …

Voice, Strength, And No-Contest Clauses, Karen J. Sneddon

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The will is a unilateral written disposition of probate property to be effective upon the will-maker's death. To have any legal effect, however, the will-maker's family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker's voice may jeopardize the legal effect of the will.

This Article argues that the over-reliance on "time-tested" formulaic language …

How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton

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The author examines clinical studies that use neuroscience technology to study patients in Vegetative States. The studies indicate that some of the patients are, in fact, conscious. The author suggests that this finding is a matter of considerable practical importance for the drafting and execution of end-of-life protocols such as Advance Directives and Living Wills. He recommends that statutes, and other guidance used by patients, caregivers, medical institutions, family members and others to draft and interpret such Directives and Wills, be revised or amended to take account of these results.

Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen Boxx, Philip N. Jones

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Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to an attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a …

Clarifying The “Probate Lending” Debate: A Response To Professors Horton And Chandrasekher, Jeremy Kidd

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The debate over third-party funding of legal claims just got more interesting. The debate already had plot twists, such as free-market scholars lining up in opposition to the U.S. Chamber of Commerce and alongside proplaintiff scholars who they oppose in tort reform debates. Now add to the mix a recent paper by Professors Horton and Chandrasekher that introduced an entirely new angle to the debate: funding of probate disputes. Now that this parallel area of funding has been identified, comparing and contrasting probate funding with litigation funding should illuminate the incentives that funders/recipients face in both scenarios. By pointing out …

Fraudulent Conveyances Masquerading As Asset Protection Trusts, James J. White

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Viewed with a dispassionate but slightly skeptical eye, transfers to asset protection trusts are fraudulent conveyances pure and simple. I think so and the evidence points that way.

The asset protection trust is a simulacrum of the well-known and thoroughly conventional mode of holding assets for a “beneficiary” by a “trustee” under the terms of an elaborate document. Trusts, of course, are widely used in estate planning and elsewhere in circumstances where one person, the settlor, wishes to make assets available to another on the settlor’s terms; a parent might use a trust to put aside assets for a minor …

Medicaid Planning In Idaho, John A. Miller

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No abstract provided.

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

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These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

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Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

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“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

Medicaid Planning For Long-Term Care: California Style, John A. Miller

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No abstract provided.

Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein

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In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. The organizer of the symposium, Professor Anita Bernstein, did not afford an opportunity for Restatement reporters to comment on the articles. The organizer did invite the Director of the American Law Institute, Lance Liebman, to contribute an essay commenting on the symposium as a whole. Liebman’s essay—unintentionally no doubt—misstated the position that we took in formulating the slayer rule for the Restatement (Third) of Property: Wills and Other Donative Transfers. Liebman’s misstatement—that we recommended that the Institute adopt a rule allowing a murderer to inherit …

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

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This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …

Shakespeare In The Classroom: How An Annual Student Production Of King Lear Adds Dimension To Teaching Trusts And Estates, Karen E. Boxx

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I always begin the first day of my Trusts and Estates course by discussing the reasons for taking the class. While I note that some students may take the class to help in passing the bar exam or because family members have already asked them to draft wills, my list of reasons instead include: (1) exposure to the fiduciary relationship; (2) the real life ethical dilemmas faced by the lawyers; (3) learning to read and interpret state statutes; and (4) consideration of how law responds to societal changes and governs human relationships. This last reason is critical: Trusts and Estates …

Memento Mori: Deaths And Wills, Karen J. Sneddon

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Death. The mere mention of the word sends a shiver down the spine or provokes a nervous giggle. Modern reactions to death range from avoidance, as shown by the abundance of death euphemisms, to fascination, as shown by the number of movies and television shows centered on death, including Twilight's vampires and The Walking Dead's zombies. Estate planning is the legal environment in which a person con.fronts his or her mortality and participates in the formulation of his or her legacy. Contextualizing the experience as a memento mori experience promotes the function of the estate planning process, specifically …

Rethinking Erisa's Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik

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This article discusses the evolution of retirement income funds from defined benefit packages to 401(k) and IRA accounts and how the changing dynamic has reshaped the way retirees think about post-retirement income. The article outlines the mechanics of 401(k) accounts and rollover IRAs in the post-retirement period and presents questions about the ability of retirees to successfully address the complex issues relating to investment choices including, what entity they entrust their savings to, the volume and source of distributions, and long-term sufficiency planning. The article suggests that an increase in the use of annuities may help to resolve some of …

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti

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The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay …

Washington Trust Law's Extreme Makeover: Blending With The Uniform Trust Code And Taking Reform Further With Innovations In Notice, Situs, And Representation, Karen E. Boxx, Katie S. Groblewski

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Washington trust laws were comprehensively revised in 2011 and 2013, resulting in the integration of concepts from the Uniform Trust Code and the addition of some novel provisions. This article discusses in depth the evolution of Washington law regarding the duties to inform and report, the situs of a trust, and representation of interested parties. In addition, this article discusses other UTC provisions that were integrated into Washington statutes and gives an explanation of any departures from UTC language and prior Washington law.

Effectively Curbing The Gst Exemption For Perpetual Trusts, Lawrence W. Waggoner

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In "Effectively Curbing the GST Exemption for Perpetual Trusts," I criticized the Treasury Department’s proposal for dealing with perpetual trusts. My objection is that Treasury’s approach would leave many trusts and much wealth GST-exempt for much longer than Congress originally intended. For perpetual trusts created before enactment, Treasury’s approach would allow them to continue to be unburdened by a durational limit. For perpetual trusts created after the effective date of enactment, Treasury’s approach would still allow them to qualify for the GST exemption, but would have the exemption expire 90 years after the trust was created.

What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner

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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 …

Retirees Beware: Don't Worry About The British, 'Taxmageddon' Is Coming, Douglas A. Kahn, Lawrence W. Waggoner

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"Taxmageddon" is coming. Unless Congress extends the current rates or reaches an agreement on tax reform, dividends will then be taxed as ordinary income at a marginal rate as high as 39.6 % and net capital gains will then be taxed at 20%. For high-income taxpayers, a 3.8% Medicare surtax will be added to the taxation of net capital gains, dividend income, interest, and other investment income, bringing the highest marginal rate to 43.4%.

Speaking For The Dead: Voice In Last Wills And Testaments, Karen J. Sneddon

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I do now hereby give, bequeath, and devise all items of tangible personal property that I own or may own a right thereonto, which includes, but is not limited to, objet d'art, furnishings, automobiles, and silver, to my surviving issue per stirpes.

A will is arguably the most important and personal legal document an individual ever executes. As the language above illustrates, much of the typical language in a will removes all traces of the individual. This personal legal document is ostensibly the individual's-the testator's-document. For a testator, contemplating the creation and execution of a will is the contemplation of …

Us Perpetual Trusts, Lawrence W. Waggoner

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In 2009, the UK reconfirmed tis long-standing public policy against perpetual trusts. America has been moving in the opposite direction. Recent years have seen a movement in the states to pass legislation allowing settlors to create family trusts that can last forever or for several centuries. Sadly, and embarrassingly, the American perpetual-trust movement has not been based on the merits of removing the traditional curb on excessive dead-hand control. The policy issues associated with allowing perpetual trusts have not been seriously discussed in the state legislatures. The driving force has been interstate competition for trust business.

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

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This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …