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New York’S Decanting Statute: Helping An Old Vintage Come To Life Or Spoiling The Settlor’S Fine Wine?, David Restrepo 2014 Pace University

New York’S Decanting Statute: Helping An Old Vintage Come To Life Or Spoiling The Settlor’S Fine Wine?, David Restrepo

Pace Law Review

The Comment examines trust decanting in four parts. Part I reviews the historical evolution of decanting statutes, first from common law roots, and later focusing on the legislative history of New York’s decanting statute. Part II briefly explains the functionality of section 10-6.6 of the NY EPTL; the “how does it work” explanation of the statute that authorizes decanting. Part III will discuss the many practical uses of the decanting statute. Finally, Part IV will transition into a discussion on how the trustee’s use of this statute not only leaves him in limbo regarding the tax treatment ...


A Tale Of Two Countries: Comparing The Law Of Inheritance In Two Seemingly Opposite Systems , Ray D. Madoff 2014 Boston College Law School

A Tale Of Two Countries: Comparing The Law Of Inheritance In Two Seemingly Opposite Systems , Ray D. Madoff

Boston College International and Comparative Law Review

Although at first glance French and U.S. inheritance laws appear to be diametrically opposed, this paper provides a deeper analysis. In doing so, it explains that nuances within both systems have made the laws more similar than they initially appear. U.S. inheritance laws, explicitly characterized by freedom of testation, include numerous substantive limits on how a testator may dispose of her property at death. Courts often use doctrines such as mental capacity, undue influence, and fraud to void wills that do not provide for the decedent’s children. Also, because over one half of all Americans die intestate ...


Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer 2014 SelectedWorks

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of ...


From Here To Eternity: The Folly Of Perpetual Trusts, Lawrence W. Waggoner 2014 University of Michigan Law School

From Here To Eternity: The Folly Of Perpetual Trusts, Lawrence W. Waggoner

Law & Economics Working Papers

Trusts that can operate for as many as a thousand years or even forever, typically for the benefit of the settlor’s descendants living from time to time, now and in the future, are all the rage in banking and estate-planning circles. Before 1986, when Congress passed the federal generation-skipping transfer tax (GST tax), settlors had little incentive and probably little desire to establish perpetual trusts, even though they were permitted to do so under the law of Wisconsin, South Dakota, or Idaho. The GST tax created an artificial incentive for the wealthy to establish such trusts. The origin of ...


Can We Trust Trustees? Proposals For Reducing Wrongful Foreclosures, John Campbell 2014 The Catholic University of America, Columbus School of Law

Can We Trust Trustees? Proposals For Reducing Wrongful Foreclosures, John Campbell

Catholic University Law Review

No abstract provided.


The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman’S Separate Estate, Allison Anna Tait 2014 SelectedWorks

The Beginning Of The End Of Coverture: A Reappraisal Of The Married Woman’S Separate Estate, Allison Anna Tait

Allison Anna Tait

Before statutory enactments in the nineteenth century granted married women a limited set of property rights, the separate estate trust was, by and large, the sole form of married women’s property. Although the separate estate allowed married women to circumvent the law of coverture, historians have generally viewed the separate estate as an ineffective vehicle for extending property rights to married women. In this Article, I reappraise the separate estate’s utility and argue that Chancery’s separate estate jurisprudence during the eighteenth century was a critical first step in the establishment of married women as property-holders. Separate estates ...


Beyond The Five Stages Of Grief: Best Practices For Estate Mediation And Advising The Bereaved Client, Louise M. Mimnagh 2014 Western University

Beyond The Five Stages Of Grief: Best Practices For Estate Mediation And Advising The Bereaved Client, Louise M. Mimnagh

Western Journal of Legal Studies

In 1789, Benjamin Franklin famously wrote that nothing in this world is certain “except death and taxes.” Yet, as the baby boomer generation increasingly comprises our senior population, a third near-certainty has emerged: family disputes regarding the estate of a deceased family member. This article reviews the Canadian legislative response to these estate disputes thus far through the introduction of Rule 75.1 of the Ontario Rules of Civil Procedure. It is argued that the introduction of mandatory mediation provides the Estates Bar with an opportunity to review emerging demands on lawyers as well as mediation and bereavement literature in ...


The Digital Death Conundrum: How Federal And State Laws Prevent Fiduciaries From Managing Digital Property, Christina L. Kunz, Damien A. Riehl, James D. Lamm, Peter J. Rademacher 2014 William Mitchell College of Law

The Digital Death Conundrum: How Federal And State Laws Prevent Fiduciaries From Managing Digital Property, Christina L. Kunz, Damien A. Riehl, James D. Lamm, Peter J. Rademacher

Faculty Scholarship

This article discusses four types of fiduciaries, each of which is affected by the vast growth in and the need to manage digital property. The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and ...


Contemporary Trusts And Estates - An Experiential Approach, Jerome Borison, Naomi R. Cahn, Susan N. Gary, Paula A. Monopoli 2014 University of Maryland Francis King Carey School of Law

Contemporary Trusts And Estates - An Experiential Approach, Jerome Borison, Naomi R. Cahn, Susan N. Gary, Paula A. Monopoli

Faculty Scholarship

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate “theoretical and practical legal knowledge and professional identity.” This essay goes on to outline how ...


Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann 2014 University of Michigan Law School

Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann

University of Michigan Journal of Law Reform

This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of ...


Preserving Preservation: Long Green Valley Association, Conservation Easements, And Charitable Trust Doctrine, Alyssa J. Domzal 2014 University of Maryland Francis King Carey School of Law

Preserving Preservation: Long Green Valley Association, Conservation Easements, And Charitable Trust Doctrine, Alyssa J. Domzal

Maryland Law Review

No abstract provided.


Tax Recognition, Barry Cushman 2014 Notre Dame Law School

Tax Recognition, Barry Cushman

Scholarly Works

This article was prepared for the St. Louis University Law Journal’s “Teaching Trusts & Estates” issue. Many law students take a course in Trusts & Estates, but comparatively few enroll in a class devoted to the federal wealth transfer taxes. For most law students, the Trusts & Estates course provides the only opportunity for exposure to some of the basic features of the estate tax, the gift tax, the generation-skipping transfer tax, and some related features of the income tax. The coverage demands of the typical Trusts & Estates course do not allow for intensive discussion of these issues, but there are numerous ...


How Deep Are The Springs Of Obedience Norms That Bind The Overseers Of Charities?, Johnny R. Buckles 2014 The Catholic University of America, Columbus School of Law

How Deep Are The Springs Of Obedience Norms That Bind The Overseers Of Charities?, Johnny R. Buckles

Catholic University Law Review

No abstract provided.


Survivorship Rights In Joint Bank Accounts: A Misbegotten Presumption Of Intent, Gregory Eddington 2014 Marquette University Law School

Survivorship Rights In Joint Bank Accounts: A Misbegotten Presumption Of Intent, Gregory Eddington

Marquette Elder's Advisor

The Article addresses the frequently litigated issue of the ownership of joint bank accounts that elderly people may have opened to protect against incapacity or to avoid FDIC insurance limits on single accounts. Despite the strong possibility of these non-donative motives, most states—by statute or court decision—award the accounts to the surviving co-tenants instead of the depositors’ heirs or will beneficiaries. This occurs even when the account contract did not contain language of survivorship and even when there is no evidence that the depositor was offered a contract that would have allowed him or her to choose an ...


Summary Of In Re Aboud Inter Vivos Trust, 129 Nev. Adv. Op. 97, Emily Anderson 2013 University of Nevada, Las Vegas -- William S. Boyd School of Law

Summary Of In Re Aboud Inter Vivos Trust, 129 Nev. Adv. Op. 97, Emily Anderson

Nevada Supreme Court Summaries

The Court determined two issues: (1) whether NRS 164.010(1) and NRS 164.015(6) give the court in rem jurisdiction to impose a constructive trust on previous trust property; and (2) whether a district court may grant a monetary judgment against former trustees and third parties that was based on the district court’s in rem jurisdiction.


Summary Of In Re Estate Of Bethurem, 129 Nev. Adv. Op. 92, Erica C. Smit 2013 University of Nevada, Las Vegas -- William S. Boyd School of Law

Summary Of In Re Estate Of Bethurem, 129 Nev. Adv. Op. 92, Erica C. Smit

Nevada Supreme Court Summaries

The Court determined one issue: (1) whether, in the absence of a presumption of undue influence, a will contestant bears the burden of proving undue influence by a preponderance of the evidence.


Page, Leonard, 1762-1836 (Sc 1191), Manuscripts & Folklife Archives 2013 Western Kentucky University

Page, Leonard, 1762-1836 (Sc 1191), Manuscripts & Folklife Archives

MSS Finding Aids

Finding aid only for Manuscripts Small Collection 1191. Receipts and sundry papers related to the estate of Leonard Page of Logan County, Kentucky.


Living And Dying In A Digital World: Estate Planning For Digital Assets, Greg Lastowka 2013 SelectedWorks

Living And Dying In A Digital World: Estate Planning For Digital Assets, Greg Lastowka

Greg Lastowka

A brief and practical overview of virtual property issues in the context of estate planing.


Freedom Of Contracts, Hanoch Dagan, Michael Heller 2013 BLR

Freedom Of Contracts, Hanoch Dagan, Michael Heller

Tel Aviv University Law Faculty Papers

“Freedom of contracts” has two components: (1) the familiar freedom to bargain for terms within a contract and (2) the long-neglected freedom to choose from among contract types. Theories built on the first freedom have reached an impasse; attention to the second points toward a long-elusive goal, a liberal and general theory of contract law. This theory is liberal because it develops an appealing conception of contractual autonomy grounded in the actual diversity of contract types. It is general because it explains how contract values – utility, community, and autonomy – properly relate to each other across contract types. Finally, it is ...


In Re Est. Of Bennett, 2013 Mt 230, Calli Oiestad 2013 The University of Montana School of Law

In Re Est. Of Bennett, 2013 Mt 230, Calli Oiestad

Montana Law Review

Wrongful death damages and survival damages arise from distinct claims that must be pursued by a decedent’s personal representative in one action. Survival damages belong to the estate and may only be claimed by the decedent’s heirs. Wrongful death damages belong to the decedent’s survivors and are not restricted to his or her heirs.


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