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Articles 1 - 11 of 11
Full-Text Articles in Law
The New Undue Influence, David Horton, Reid K. Weisbord
The New Undue Influence, David Horton, Reid K. Weisbord
Utah Law Review
The doctrine of undue influence has long been the problem child of inheritance law. Undue influence, a hazy combination of fraud and duress, supposedly invalidates bequests that a beneficiary obtained by overriding the volition of a vulnerable testator or settlor. But because relationships are complex, concepts like free will are slippery, and challenges to do native transfers are litigated after the owner dies, courts struggle to apply the rule. Making matters worse, fact finders exploit the principle’s vagueness to protect a decedent’s family at the expense of non-traditional relationships. As a result, scholars have criticized undue influence fordecades, with some …
Without A Will, There Is Still A Way: A Statutory Solution To Increase The Value Of A Small Estate And Aid In Reducing The Racial Equity Gap In Wisconsin, Isabella V. Avila Perez
Without A Will, There Is Still A Way: A Statutory Solution To Increase The Value Of A Small Estate And Aid In Reducing The Racial Equity Gap In Wisconsin, Isabella V. Avila Perez
Marquette Benefits and Social Welfare Law Review
For generations, communities of color have struggled to increase their generational wealth. Lack of access to estate planning tools leaves minority groups and low-income families compromised and more likely to die intestate. While the current probate system creates a safety net for those that die intestate, this comment aims to address the need for a statutory solution to aid in combatting Wisconsin's racial equity gap. More specifically, this Comment suggests how increasing and indexing Wisconsin's summary settlement and summary assignment small estate values to include estates of $100,000 or less will allow for more minority and low-income families to qualify …
Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien
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 …
Intestacy Concerns For Same-Sex Couples: How Variations In State Law And Policy Affect Testamentary Wishes, Megan Moser
Intestacy Concerns For Same-Sex Couples: How Variations In State Law And Policy Affect Testamentary Wishes, Megan Moser
Seattle University Law Review
As the number of same-sex couples increases in the United States, concerns regarding the evolution of federal and state law, with respect to rights for same-sex couples, also continue to rise. As marriage is not always available to same-sex couples, they often face very different legal issues than couples in a traditional marriage. Because marriage is typically not a legal cause of action, the question of a marriage’s validity often arises incidentally to another legal question, such as the disposition of a decedent’s estate.
Trusting Trust, Deborah Gordon
Trusting Trust, Deborah Gordon
Deborah S Gordon
What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down recreation of the trustee’s role, this Article contends that valuable lessons can be learned by reconceptualizing how trustees, settlors, and beneficiaries view themselves and each other. Using traditional literature about great judging as a touchstone, the Article argues that those qualities essential to principled adjudication — …
Balancing Testamentary Incapacity And Undue Influence: How To Handle Will Contests Of Testators With Diminishing Capacity, Richard B. Keeton
Balancing Testamentary Incapacity And Undue Influence: How To Handle Will Contests Of Testators With Diminishing Capacity, Richard B. Keeton
Richard B. Keeton, Esq.
Survivorship Rights In Joint Bank Accounts: A Misbegotten Presumption Of Intent, Gregory Eddington
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 agency arrangement. …
Letters Non-Testamentary, Deborah Gordon
Letters Non-Testamentary, Deborah Gordon
Deborah S Gordon
Letters written in anticipation of death, so-called “last letters,” appear frequently in American case law, especially when inheritance is at issue. One common appearance is when such letters are offered to serve as wills for decedents who leave no other written indication of testamentary intent. Even where a properly attested will exists, though, many courts have construed letters as codicils – addenda – to the more traditional instruments, though such letters sometimes contradict or substantially alter the original wills. Courts also use letters as tools for interpreting ambiguous documents and as mechanisms for determining whether a formal property arrangement, a …
Keeping Peace In The Family While You Are Resting In Peace: Making Sense Of And Preventing Will Contests , Judith G. Mcmullen
Keeping Peace In The Family While You Are Resting In Peace: Making Sense Of And Preventing Will Contests , Judith G. Mcmullen
Marquette Elder's Advisor
Even the best intended wills may be challenged if beneficiaries feel slighted. McMullen discusses various challenges to wills which may be based on grounds of public policy, lack of formalities, undue influence, or lack of testamentary capacity. Reasons for disputes are explored and methods, both technical and non-technical, for avoiding challenges are suggested to help provide for the legacy of a peaceful family.
Family Law - Guardianship - The Uniform Adult Guardianship And Protective Proceedings Jurisdiction Act: A Uniform Solution To An Arkansas Problem, Stephen Rauls
University of Arkansas at Little Rock Law Review
No abstract provided.
Living Trusts In The Unauthorized Practice Of Law: A Good Thing Gone Bad, Angela M. Vallario
Living Trusts In The Unauthorized Practice Of Law: A Good Thing Gone Bad, Angela M. Vallario
All Faculty Scholarship
An elderly man recently lost his wife and visits the lawyer's office for assistance in the administration of her estate. After the attorney expresses her condolences, she asks if his wife had a will. The client reaches into a brown shopping bag and retrieves a two-and-a-half inch black binder containing several trusts. The elderly gentleman and his deceased wife were told this would eliminate the expensive legal nightmare of probate. Unfortunately, like many others, this couple was victimized by a trust mill.