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Tomorrow's Inheritance: The Frontiers Of Estate Planning Formalism, David Horton 2017 University of California, Davis, School of Law

Tomorrow's Inheritance: The Frontiers Of Estate Planning Formalism, David Horton

Boston College Law Review

The rules that govern the creation of an estate plan are in flux. Courts once demanded strict adherence to the Wills Act. Yet, this legacy of hyper-vigilance is waning, as the Uniform Probate Code, the Restatement (Third) of Property, and ten states have adopted the harmless error rule. Meanwhile, trusts, which need not comply with the Wills Act, have eclipsed wills as the dominant method of posthumous wealth transmission. This Article explores three budding topics that threaten to further complicate this area. First, there are anecdotal accounts of decedents trying to make electronic wills. In both strict compliance and harmless ...


Misapplied Trust Funds And Mortgage Loans, Ruo Yu TAN 2017 Singapore Management University

Misapplied Trust Funds And Mortgage Loans, Ruo Yu Tan

Research Collection School Of Law

Where trust monies are used in breach of trust to pay for the deposit for a property, the courts have held that any mortgage loan which was used to fund the purchase does not count as the trustee's contribution to the purchase price for the purpose of determining the trustee's and the beneficiary's respective beneficial ownership in the property. This article considers two issues. First, if trust monies are used only after the trustee has paid for the deposit using his own money, are the loan monies obtained by the trustee under the mortgage still liable to ...


Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle 2017 William & Mary Law School

Liberty In Loyalty: A Republican Theory Of Fiduciary Law, Evan J. Criddle

Faculty Publications

Conventional wisdom holds that the fiduciary duty of loyalty is a prophylactic rule that serves to deter and redress harmful opportunism. This idea can be traced back to the dawn of modern fiduciary law in England and the United States, and it has inspired generations of legal scholars to attempt to explain and justify the duty of loyalty from an economic perspective. Nonetheless, this Article argues that the conventional account of fiduciary loyalty should be abandoned because it does not adequately explain or justify fiduciary law’s core features.

The normative foundations of fiduciary loyalty come into sharper focus when ...


Freedom Of Inheritance, Mark Glover 2017 University of Wyoming College of Law

Freedom Of Inheritance, Mark Glover

Utah Law Review

The law grants individuals the broad freedom of disposition to decide how their property should be distributed upon death. The rationale underlying freedom of disposition is that the choices of individual donors produce results that maximize social welfare. Policymakers are rightfully skeptical that they can craft a mandatory estate plan that fits all situations or that probate courts can consistently and accurately assess the merits of particular dispositions of property. By contrast, the donor is in the best position to evaluate her own specific circumstances and to place property in the hands of the donees who will benefit the most ...


How Many #Followers Do You Have?: Evaluating The Rise Of Social Media And Issues Concerning In Re Ctli’S Determination That Social Media Accounts Are Property Of The Estate, Patricia A. Leeson 2017 The Catholic University of America, Columbus School of Law

How Many #Followers Do You Have?: Evaluating The Rise Of Social Media And Issues Concerning In Re Ctli’S Determination That Social Media Accounts Are Property Of The Estate, Patricia A. Leeson

Catholic University Law Review

With the rise of social media use, legal disputes have surfaced with litigants looking to the courts to determine issues of ownership and legal authority. As a matter of first impression, a U.S. Bankruptcy Court in Texas held that a Twitter and Facebook social media account were to be regarded as property of the estate pursuant to Section 541 of the Bankruptcy Code. The court analogized the social media accounts to subscriber lists because they provide valuable access to customers. Although the court addressed the question of whether social media applications are to be regarded as property in bankruptcy ...


Video: Elder Law For Beginners, Arlene Lakin, Gail Fisher 2017 Nova Southeastern University

Video: Elder Law For Beginners, Arlene Lakin, Gail Fisher

Law Center Plus Seminar Series

This particular seminar is designed to educate attorneys about how to be an elder law attorney. Practitioners will learn the various skill sets involved: estate and incapacity planning as well as protection of assets in order to qualify for, or remain qualified for, public benefits such as Medicaid and veteran’s pension with aid and attendance.

1. How to work with senior citizens and their families in a clinical as well as legal format
2. How to determine capacity of elderly clients to execute legal documents
3. How to analyze family relationships
4. How to design an estate and incapacity ...


In Re Frei Irrevocable Trust, 133 Nev. Adv. Op. 8 (Mar. 2, 2017), Angela Lee 2017 Nevada Law Journal

In Re Frei Irrevocable Trust, 133 Nev. Adv. Op. 8 (Mar. 2, 2017), Angela Lee

Nevada Supreme Court Summaries

The Nevada Supreme Court adopted the Restatement (Second) of Trusts SS 338 (Am. Law Inst. 1959). It held trusts are modifiable by a settlor and beneficiary as long as any non-consenting beneficiaries' interests are not prejudiced.


Liberty And Community In Marriage: Expanding On Massey’S Proposal For A Community Property Option In New Hampshire, Jo Carrillo 2017 University of California, Hastings College of the Law

Liberty And Community In Marriage: Expanding On Massey’S Proposal For A Community Property Option In New Hampshire, Jo Carrillo

University of New Hampshire Law Review

This article argues that intimate partners should have the right to adopt a sharing economy within marriage. Forty-one U.S. states employ a separate property regime for property acquired during marriage; of these, only two allow married couples to opt out of the separate property system and hold their assets as community property. Nine U.S. states are community property states. To encourage equal partnership in marriage, Calvin Massey proposed that New Hampshire, a separate property state, enable a community property option. This essay expands on Massey’s proposal by comparing it to three other marriage reform proposals: two based ...


The Disposition Of Human Remains And Organ Donation: Increasing Testamentary Freedom While Upholding The No Property Rule, Louise M. Mimnagh 2017 Osgoode Hall Law School

The Disposition Of Human Remains And Organ Donation: Increasing Testamentary Freedom While Upholding The No Property Rule, Louise M. Mimnagh

Western Journal of Legal Studies

In terms of real and personal property, Canadian law grants individuals substantial testamentary freedom in the disposition of their estate. However, in regards to human remains, Ontario has upheld the common law’s longstanding “No Property Rule,” which prevents testamentary freedom in regards to one’s bodily remains. In light of changing societal notions of property and value with respect to the human body, this article argues in favour of implementing greater testamentary freedom for individuals in regards to the disposition of their body, organs, tissue, and fluids. This article reviews alternative approaches to the testamentary disposition of human remains ...


Estate Of Holliday: "Flping" The Script, Phyllis C. Taite 2017 Florida A&M University College of Law

Estate Of Holliday: "Flping" The Script, Phyllis C. Taite

Journal Publications

In this article, Taite examines Estate of Holliday, in which the Tax Court held that the full value of property transferred to a family limited partnership was properly includable in the decedent’s estate because the decedent had a retained right in the property and no significant nontax reasons for making the transfer.


Estate Of Purdue: A Blueprint For Flping, Phyllis C. Taite 2017 Florida A&M University College of Law

Estate Of Purdue: A Blueprint For Flping, Phyllis C. Taite

Journal Publications

In this article, Taite examines Estate of Purdue, in which the Tax Court held that assets of the decedent that were transferred to the family limited liability company were not includable in the gross estate, that transfers to the family trust qualified for an annual exclusion, and that the estate could deduct interest on loans from the estate’s beneficiaries.


The Elective Share Has No Friends: Creditors Trump Spouse In The Battle Over The Revocable Trust, Angela M. Vallario 2017 University of Baltimore School of Law

The Elective Share Has No Friends: Creditors Trump Spouse In The Battle Over The Revocable Trust, Angela M. Vallario

All Faculty Scholarship

A revocable trust is a popular estate planning tool used to disinherit a spouse in sixteen jurisdictions. In common law jurisdictions, a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent's estate regardless of the decedent's estate plan. However, sixteen jurisdictions have defined a dissatisfied spouse's rights with a fractional share of the deceased spouse's "net probate estate," allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these ...


Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner 2017 University of Florida Levin College of Law

Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner

UF Law Faculty Publications

This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent ...


Foreword--Festschrift In Memory Of Dennis I. Belcher, Bridget J. Crawford 2017 Elisabeth Haub School of Law at Pace University

Foreword--Festschrift In Memory Of Dennis I. Belcher, Bridget J. Crawford

Pace Law Faculty Publications

In academia, it is customary to honor important milestones in a colleague's career with a festschrift, a collected volume of scholarly essays or reflections on the individual's contributions to his or her field. Very often, festschrifts are assembled to celebrate a retirement, but they are also used to honor the memory of a colleague who has died. The Board of Editors of the ACTEC Law Journal unanimously agreed that our first issue of the 2017-2018 academic year should be in honor and memory of Dennis Belcher. With the encouragement and contributions of many of Dennis's friends and ...


Family Limited Partnerships And Section 2036: Not Such A Good Fit, Mitchell M. Gans, Jonathan G. Blattmachr 2017 Maurice A. Deane School of Law at Hofstra University

Family Limited Partnerships And Section 2036: Not Such A Good Fit, Mitchell M. Gans, Jonathan G. Blattmachr

Hofstra Law Faculty Scholarship

The IRS has struggled to close down abusive family limited partnerships. At first unreceptive to IRS arguments, the courts eventually embraced section 2036 as an estate-tax tool for attacking such partnerships. Because the section was not designed to apply to partnerships, difficulties have arisen as the courts have struggled with the fit. In its most recent encounter, the Tax Court in Powell grappled with a fit-related issue that implicates the Supreme Court’s landmark decision in Byrum. The Powell court, it will be argued, misread Byrum, conflating the majority opinion with the dissent – and converting the rule-based approach adopted by ...


Social Control Of Wealth In Antebellum New York, William P. LaPiana 2017 New York Law School

Social Control Of Wealth In Antebellum New York, William P. Lapiana

Articles & Chapters

No abstract provided.


The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton 2017 Texas A&M University School of Law

The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton

Faculty Scholarship

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs—the last will of Dr. Jekyll. This will so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that he is impelled to seek the truth behind his friend ...


Wills & Trusts, Gerry Beyer 2017 Southern Methodist University

Wills & Trusts, Gerry Beyer

SMU Annual Texas Survey

No abstract provided.


Ip, R.I.P., Andrew Gilden 2017 Willamette University College of Law

Ip, R.I.P., Andrew Gilden

Washington University Law Review

Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered.

This Article reexamines the interests of an artist’s families, friends, and other heirs (IP ...


The Impact Of Estate Of Howell: Guardianship, Heir Misbehavior, And The Modern Family Within Illinois, 50 J. Marshall L. Rev. 615 (2017), Michael Habic 2017 John Marshall Law School

The Impact Of Estate Of Howell: Guardianship, Heir Misbehavior, And The Modern Family Within Illinois, 50 J. Marshall L. Rev. 615 (2017), Michael Habic

The John Marshall Law Review

This Comment shall discuss and evaluate the guardianship decision-making standard implemented in Estate of Howell as it relates to guardianships of disabled persons, and why Illinois has the best scheme for safeguarding the assets of a disabled adult when a guardian creates an estate plan on his or her behalf. The discussion is based on the holding in Estate of Howell that a guardian may act on behalf of the disabled adult’s interests and therefore the disabled adult’s last will and testament need not conform to the rules of intestacy, because of the hierarchical substituted judgment and best ...


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