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Full-Text Articles in Law

Ademption And The Domain Of Formality In Wills Law, Gregory S. Alexander Dec 2014

Ademption And The Domain Of Formality In Wills Law, Gregory S. Alexander

Gregory S Alexander

The 1990 revision of the Uniform Probate Code ("UPC") marks the second stage of probate reform in the second half of this century. The first stage was the adoption of the original UPC. While it included some changes in the substantive law of wills, its primary objective was to simplify probate procedure. The second stage, by contrast, focuses almost entirely on the substantive law of wills and will substitutes. It changes several of the primary rules of wills law, including the traditional rule requiring strict compliance with execution formalities. It also makes significant changes in the subsidiary rules of wills …


The Transformation Of Trusts As A Legal Category, 1800-1914, Gregory Alexander Dec 2014

The Transformation Of Trusts As A Legal Category, 1800-1914, Gregory Alexander

Gregory S Alexander

Sometimes we are least aware of that which most affects us. So it seems with respect to legal categories. Lawyers do not take legal categories very seriously today. But they should. Legal categories are central to legal reasoning; indeed it is almost impossible to imagine legal reasoning without the use of categories. Categorical thinking affects every area of law. The purpose of this article is to illuminate, through a case-study, the contingent and ideological character of legal categories. It focuses on the development of trusts into and then as a discrete legal category during the period between the beginning of …


Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Gregory S. Alexander, Mary L. Fellows Dec 2014

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Gregory S. Alexander, Mary L. Fellows

Gregory S Alexander

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …


Alternative Models Of Ante-Mortem Probate And Procedural Due Process Limitations On Succession, Gregory S. Alexander, Albert M. Pearson Dec 2014

Alternative Models Of Ante-Mortem Probate And Procedural Due Process Limitations On Succession, Gregory S. Alexander, Albert M. Pearson

Gregory S Alexander

Ante-mortem probate stands as a significant recent development in the American law of wealth succession. It confronts a problem that seriously impairs our probate system, the depredatious will contest, and promises to help revitalize the probate process. Already enacted in several states and currently under active study by the Joint Editorial Board of the Uniform Probate Code and the National Conference of Commissioners on Uniform State Laws, ante-mortem probate is likely to be widely implemented in some form. But while legislators and academics alike support ante-mortem probate as a general idea, disagreement has emerged over the specific form it should …


The Conservatorship Model: A Modification, Gregory S. Alexander Dec 2014

The Conservatorship Model: A Modification, Gregory S. Alexander

Gregory S Alexander

Reform-minded probate lawyers have discussed the idea of ante-mortem probate for many years. Yet, owing to several seemingly unavoidable defects, it has never attracted widespread support and only recently has been implemented anywhere in the United States. In his article, Living Probate: The Conservatorship Model, Professor John Langbein has eliminated many of those defects and has made the idea much more feasible. In doing so, he has contributed to the development of simple, convenient, and efficient systems of probate. However, his proposal introduces new flaws that threaten the practical working of his procedural model. Basically, Langbein proposes that living probate …


The Dead Hand And The Law Of Trusts In The Nineteenth Century, Gregory Alexander Dec 2014

The Dead Hand And The Law Of Trusts In The Nineteenth Century, Gregory Alexander

Gregory S Alexander

This article discusses a basic paradox at the core of liberal property law. Individual freedom to dispose of consolidated bundles of rights cannot simultaneously be allowed and fully maintained. If the donor of a property interest tries to restrict the donee's freedom to dispose of that interest, the legal system, in deciding whether to enforce or void that restriction, must resolve whose freedom it will protect, that of the donor or that of the donee. Although post-realist American property lawyers acknowledge this conflict, at least nominally, it did not emerge in legal consciousness in so starkly visible a form until …


Sperms And Estates: An Unadulterated Functionally Based Approach To Parent-Child Property Succession, Lee-Ford Tritt Dec 2014

Sperms And Estates: An Unadulterated Functionally Based Approach To Parent-Child Property Succession, Lee-Ford Tritt

Lee-ford Tritt

The Article argues that the sanguinary nexus test, the dominant standard for determining whether an individual has a right to inherit property when another dies, has become an increasingly frustrating, and arguably arcane, legal tool in light of the diversity of family relationships extant in modern American life. The sanguinary nexus test determines child status based upon ties of “blood.” Considering the evolving notions of family structures and advances in reproductive technologies involving cloning, surrogacy and egg/sperm donation, serious questions arise about whether the existing sanguinary nexus test can produce results consistent with the fundamental principle of testamentary freedom underlying …


Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch Nov 2014

Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch

Karen Burke

Family partnerships have been become increasingly popular as a means of avoiding estate and gift taxes. As other estate freezing techniques have been closed off by statutory anti-abuse rules, estate planners have increasingly resorted to partnerships as a vehicle for transferring assets within a family at deeply discounted values. Discounts ranging from one-third to over one-half of the value of the underlying assets are routinely claimed, and often allowed, based on lack of marketability and lack of control, even where these disabilities have no lasting or ascertainable economic effect. Nevertheless, the use of family partnerships to suppress value for transfer …


A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison Nov 2014

A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison

Jeffrey L Harrison

Select financial institutions and members of the Bar have seized upon the presence of the limited exemption from the generation skipping transfer tax provided under the Internal Revenue Code to promote so-called dynasty trusts as a means whereby individuals can build dynastic wealth for a family forever free from transfer taxes. To realize such benefits, state law that does not impose the Rule Against Perpetuities must govern the trust. The promise of dynastic wealth is unlikely to be realized due to several factors. Administrative and tax costs are likely to reduce the yield on such trusts to a level where …


Probate Law Reform And Nonprobate Transfers, Grayson M.P. Mccouch Nov 2014

Probate Law Reform And Nonprobate Transfers, Grayson M.P. Mccouch

Grayson McCouch

The advent of widespread, large-scale probate avoidance has added a new dimension to the project of probate law reform. When the Uniform Probate Code made its debut in 1969, its primary goal was to modernize traditional probate procedures and make them more uniform, flexible, and efficient. The Code's reforms were in part a response to the rise of will substitutes which offered a ready means of transferring property at death outside the probate system. In the intervening years, however, will substitutes have continued to proliferate, while traditional probate procedures have resisted comprehensive reform. The probate system has not become obsolete …


Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch Nov 2014

Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch

Grayson McCouch

Family partnerships have been become increasingly popular as a means of avoiding estate and gift taxes. As other estate freezing techniques have been closed off by statutory anti-abuse rules, estate planners have increasingly resorted to partnerships as a vehicle for transferring assets within a family at deeply discounted values. Discounts ranging from one-third to over one-half of the value of the underlying assets are routinely claimed, and often allowed, based on lack of marketability and lack of control, even where these disabilities have no lasting or ascertainable economic effect. Nevertheless, the use of family partnerships to suppress value for transfer …


Contemporary Trusts And Estates: An Experiential Approach (2nd Ed)., Susan Gary, Jerome Borison, Naomi Cahn, Paula Monopoli Nov 2014

Contemporary Trusts And Estates: An Experiential Approach (2nd Ed)., Susan Gary, Jerome Borison, Naomi Cahn, Paula Monopoli

Paula A Monopoli

Contemporary Trusts and Estates: An Experiential Approach uses cases and statutory materials, along with exercises and problems, to integrate legal analysis and practice skills. Consistent with the Carnegie Report‘s call for more practice skills, it includes exercises in document drafting, role-playing, and letter writing to clients.


Proposals For Revising Georgia's Probate Code, Mary F. Radford Oct 2014

Proposals For Revising Georgia's Probate Code, Mary F. Radford

Mary F. Radford

No abstract provided.


Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford Oct 2014

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Mary F. Radford

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.


Spendthrift Trusts: It's Time To Codify The Compromise, Anne S. Emanuel Oct 2014

Spendthrift Trusts: It's Time To Codify The Compromise, Anne S. Emanuel

Anne S. Emanuel

No abstract provided.


The Fiduciary Duty Of Care: A Perversion Of Words, William Gregory Oct 2014

The Fiduciary Duty Of Care: A Perversion Of Words, William Gregory

William A. Gregory

No abstract provided.


Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly Jul 2014

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Daniel B Kelly

The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s …


Tax Recognition, Barry Cushman Jun 2014

Tax Recognition, Barry Cushman

Barry Cushman

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 …


Contemporary Trusts And Estates - An Experiential Approach, Jerome Borison, Naomi R. Cahn, Susan N. Gary, Paula A. Monopoli Apr 2014

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

Paula A Monopoli

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 …


Defective Decision-Making And Mistakes, Man Yip Mar 2014

Defective Decision-Making And Mistakes, Man Yip

Man YIP

No abstract provided.


Assisted Reproductive Technology Poses New Estate-Planning Questions, Lindsey Paige Markus, Assistance From Evan D. Blewett Feb 2014

Assisted Reproductive Technology Poses New Estate-Planning Questions, Lindsey Paige Markus, Assistance From Evan D. Blewett

Evan Blewett

Due to the deferral of pregnancy, environmental issues and a host of medical factors, infertility rates are on the rise. The Centers for Disease Control estimated that as many as 12 percent of U.S. women and their partners experience infertility, and experts posit that this statistic continues to rise. The increased prevalence and effectiveness of Assisted Reproductive Technology, or ART, creates myriad legal issues for individuals and couples to consider.


Inheritances And Death: Legal Strategies In The United States, England And France, Ray Madoff, Pierre-Alain Conil Dec 2013

Inheritances And Death: Legal Strategies In The United States, England And France, Ray Madoff, Pierre-Alain Conil

Ray D. Madoff

No abstract provided.


Letters Non-Testamentary, Deborah Gordon Dec 2013

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 …


Where Strict Meets Substantial: Oklahoma Standards For The Execution Of A Will, Katheleen R. Guzman Dec 2013

Where Strict Meets Substantial: Oklahoma Standards For The Execution Of A Will, Katheleen R. Guzman

Katheleen R. Guzman

No abstract provided.


Rethinking The Testamentary Capacity Of Minors, Mark Glover Dec 2013

Rethinking The Testamentary Capacity Of Minors, Mark Glover

Mark Glover

Minors lack the legal capacity to execute wills. Subject to limited exceptions in some states, a will executed by a child is void. Because this testamentary age requirement conflicts with the primary objective of the law of wills, which is to allow decedents to freely choose how their estates will be distributed, this rule should be founded upon a coherent and compelling policy rationale. Nonetheless, it is not. Three potential rationales might explain the testamentary incapacity of minors. First, the age requirement could represent a categorical capacity threshold that is aimed at protecting children from their immaturity and indiscretion. Second, …


Decoupling The Law Of Will-Execution, Mark Glover Dec 2013

Decoupling The Law Of Will-Execution, Mark Glover

Mark Glover

The law of will-execution includes two related but distinct components. The first is formality, including the requirements that a will be written, signed, and witnessed. The second is the standard that courts use to evaluate compliance with these formalities. Courts traditionally apply a rule of strict compliance, under which any formal defect invalidates the will. Fueled by longtime criticism of this rule, an ongoing reform movement seeks to relax the law’s insistence on strict compliance. However, despite broad support within the legal academy, this reform effort has been slow to instigate change. This Article argues that the reform movement’s struggles …