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Should We Tax The Gratuitous Transfer Of Wealth?: An Introduction, James R. Repetti 2016 Boston College Law School

Should We Tax The Gratuitous Transfer Of Wealth?: An Introduction, James R. Repetti

Boston College Law Review

The estate tax was enacted because of concerns about the impact of large concentrations of dynastic wealth on the political process. As discussed in this commentary, which reviews the Symposium articles by Paul Caron, David Joulfaian, and Jennifer Bird-Pollan, recent research by political scientists supports the legitimacy of these concerns. In addition, a significant body of studies suggests that inequality has a long-term negative impact on growth. Paul Caron observes in his article that progressivity in our tax system has been decreasing and that the estate tax was 60% or higher for fifty years (1934–1983), a rate much higher ...


Death Is Not The End: The Second Circuit Allows Posthumous Division Of Pension Benefits In Yale-New Haven Hospital V. Nicholls, Thanithia Billings 2016 Boston College Law School

Death Is Not The End: The Second Circuit Allows Posthumous Division Of Pension Benefits In Yale-New Haven Hospital V. Nicholls, Thanithia Billings

Boston College Law Review

On June 4, 2015, in Yale-New Haven Hospital v. Nicholls, the U.S. Court of Appeals for the Second Circuit held that the Employment Retirement Income Security Act of 1974 (“ERISA”) allows state courts to posthumously amend qualified domestic relations orders (“QDROs”) to divide the pension plan benefits of a deceased plan participant. The Second Circuit joined the U.S. Court of Appeals for the Tenth Circuit in allowing QDROs to be posthumously amended. The U.S. Court of Appeals for the Third Circuit, in contrast, has ruled that upon a plan participant’s death, benefits cannot be reassigned through ...


Arkansas’S Trust Code And Trust Planning: A Ten-Year Perspective, Lynn Foster 2016 University of Arkansas at Little Rock

Arkansas’S Trust Code And Trust Planning: A Ten-Year Perspective, Lynn Foster

University of Arkansas at Little Rock Law Review

In 2001, the Uniform Law Commission adopted the Uniform Trust Code, which regulates certain aspects of trusts. One impetus for the trust code was the ever-increasing popularity of revocable trusts as part of standard estate planning packages. Another was the fact that few states—including Arkansas—had well-developed common law trust rules, let alone any statutory trust codes. In 2005, the Arkansas legislature enacted a slightly modified version of the Uniform Trust Code (UTC), titled the Arkansas Trust Code (ATC). At that time, the University of Arkansas at Little Rock Law Review published my article summarizing the most important features ...


With All My Worldly Goods I Thee Endow: The Law And Statistics Of Dower And Curtesy In Arkansas, J. Cliff McKinney 2016 University of Arkansas at Little Rock William H. Bowen School of Law

With All My Worldly Goods I Thee Endow: The Law And Statistics Of Dower And Curtesy In Arkansas, J. Cliff Mckinney

University of Arkansas at Little Rock Law Review

No abstract provided.


When Your Client Is Brain Injured, Don’T You Think You Should At Least 'Consider' Setting Up A Guardianship? What Tbi Lawyers Need To Know About Guardianships And Related Matters, Jani E. Maurer Esq. 2016 Nova Southeastern University - Shepard Broad College of Law

When Your Client Is Brain Injured, Don’T You Think You Should At Least 'Consider' Setting Up A Guardianship? What Tbi Lawyers Need To Know About Guardianships And Related Matters, Jani E. Maurer Esq.

Jani E. Maurer

No abstract provided.


Give Me Liberty And Give Me Death: The Conflict Between Copyright Law And Estates Law, Michael Rosenbloum 2016 University of Georgia School of Law

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.


Trust Term Extension, Reid Kress Weisbord 2016 University of Florida Levin College of Law

Trust Term Extension, Reid Kress Weisbord

Florida Law Review

Over the last thirty years, most jurisdictions in the United States have repealed or abrogated the Rule Against Perpetuities, which prohibits perpetual donor control over property. This, in turn, has led estate planning practitioners to consider whether a trust created to comply with the Rule could, after the Rule’s repeal, be extended in perpetuity to provide for future generations of the settlor’s descendants upon petition of the trustee. Trust term extension in this context implicates fundamental questions about the purpose of a trust: For whose benefit—the beneficiaries’, the settlor’s, or the trustee/fiduciary’s—does the ...


Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien 2016 The Catholic University of America, Columbus School of Law

Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien

Catholic University Law Review

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will ...


Ahead Of The Curve: Promoting Land Tenure Security In Sub-Saharan Africa To Protect The Environment, Andrew R. Falk 2016 Seattle University School of Law

Ahead Of The Curve: Promoting Land Tenure Security In Sub-Saharan Africa To Protect The Environment, Andrew R. Falk

Seattle Journal for Social Justice

No abstract provided.


Mapping Chinese Trusts With A Patrimony Compass, Thomas Simmons 2016 University of South Dakota School of Law

Mapping Chinese Trusts With A Patrimony Compass, Thomas Simmons

Tom E. Simmons

Review of: Kai Lyu, Re-Clarifying China's Trust Law: Characteristics and New Conceptual Basis, 36 Loy. L.A. Int'l & Comp. L. Rev. 447 (2015).


Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen Leacock 2016 Barry University

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen Leacock

Faculty Scholarship

No abstract provided.


Toward A Reality-Based Estate Tax, Wendy C. Gerzog 2016 University of Baltimore School of Law

Toward A Reality-Based Estate Tax, Wendy C. Gerzog

All Faculty Scholarship

Currently, the estate tax does not accurately value the property and transactions that it is meant to cover. Additionally, the marital and charitable deductions do not reflect actual associated transfers, instead skewing their benefits away from their purported beneficiaries. This Article proposes reforming the estate tax by eliminating these sources of unreality and distortion, and to make the current estate tax a reality-based tax. Through six specific proposals, the Article identifies solutions to the problems associated with testamentary transfers, puts forth alternative methods of valuation to prevent gaming of transfer taxes, and offers significant modifications to two deduction provisions.


Probating Prince’S Estate: Who Will End Up With The Singer’S Substantial Intellectual Property?, J. Gordon Hylton 2016 Mitchell Hamline School of Law

Probating Prince’S Estate: Who Will End Up With The Singer’S Substantial Intellectual Property?, J. Gordon Hylton

Cybaris®

No abstract provided.


An Empirical Study Of Modification And Termination Of Conservation Easements: What The Data Suggest About Appropriate Legal Rules, Gerald Korngold, Semida Munteanu, Lauren Smith 2016 New York Law School

An Empirical Study Of Modification And Termination Of Conservation Easements: What The Data Suggest About Appropriate Legal Rules, Gerald Korngold, Semida Munteanu, Lauren Smith

Articles & Chapters

The acquisition of conservation easements by nonprofit organizations (“NPOs”) over the past twenty-five years has revolutionized the preservation of American land. Recently, however, legislatures, courts, practitioners, and commentators have debated whether and how conservation easements should be modified and even terminated. The discussion has almost always been on a theoretical level without empirical grounding and has sometimes generated much heat but little light. The discussion has lacked the necessary empirical context to allow legislatures and courts to thoughtfully develop resolutions to these issues free from sloganeering and posturing.

This article provides and analyzes a previously uncollected dataset that offers guidance ...


A Review Of Alexander A. Bove, Jr., Trust Protectors: A Practice Manual With Forms, Richard C. Ausness 2016 University of Kentucky College of Law

A Review Of Alexander A. Bove, Jr., Trust Protectors: A Practice Manual With Forms, Richard C. Ausness

Law Faculty Scholarly Articles

Alexander Bove has recently written a thoughtful, comprehensive and practical book entitled Trust Protectors: A Practice Manual with Forms. The book describes the powers and rights of a trust protector, as well as the fiduciary duties and potential liabilities associated with this office. In addition, the author examines the relationship between the trust protector and the trustee. He also discusses the role of the courts in this area and identifies a number of practical issues that should be considered by lawyers when they draft trust instruments that contemplate the appointment of a trust protector. Finally, the author provides extensive group ...


Recharging Adult Guardianship Reform: Six Current Paths Forward, Erica Wood 2016 Touro College Jacob D. Fuchsberg Law Center

Recharging Adult Guardianship Reform: Six Current Paths Forward, Erica Wood

Journal of Aging, Longevity, Law, and Policy

No abstract provided.


Commentaries On The Model Rules Of Professional Conduct, Thomas Andrews, Karen Boxx 2016 University of Washington School of Law

Commentaries On The Model Rules Of Professional Conduct, Thomas Andrews, Karen Boxx

Books

This Fifth Edition of the ACTEC Commentaries continues the tradition of providing guidance on the Model Rules of Professional Conduct particular to estate and trust practitioners. The Fifth Edition update to the Commentaries takes account of amendments to the Model Rules adopted since the 2005 Fourth Edition, including those proposed by the American Bar Association Commission on Ethics 20/20 as adopted by the ABA in 2012 and 2013. It is current through August 31, 2015 as there have been no amendments to the Model Rules since 2013.

In addition to these updates, we have added Commentary and Annotations to ...


Planned Parenthood: Adult Adoption And The Right Of Adoptees To Inherit, Richard C. Ausness 2016 University of Kentucky College of Law

Planned Parenthood: Adult Adoption And The Right Of Adoptees To Inherit, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is concerned with the effect of adult adoptions on the inheritance rights (in the broad sense of that term) of adult adoptees. The Article contends many adult adoption statutes assume the existence of a parent-child relationship in which the adopter is the “parent” and the adoptee is a “child” even though this is not true of all adult adoption cases. In addition, legislatures and courts frequently fail to differentiate between “quasi-familial” adoptions and “strategic” adoptions, particularly where inheritance rights are concerned.


The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko 2016 Santa Clara University School of Law

The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko

Faculty Publications

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by her contest, seeks to increase her inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that the will is not a contract and the opposition to enforcement ...


Irresolute Testators, Clear And Convicing Wills Law, Jane B. Baron 2016 Temple University School of Law

Irresolute Testators, Clear And Convicing Wills Law, Jane B. Baron

Washington and Lee Law Review

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear ...


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