Law Commons^™

These Are A Few Of My Least Favorite Things, Richard C. Ausness

Law Faculty Scholarly Articles

The Uniform Probate Code ("UPC") can trace its origins back to a Model Probate Code promulgated by the American Bar Association ("ABA")'s section on Real Property, Probate, and Trust Law in 1946. In 1962, the Section on Real Property, Probate, and Trust Law, along with National Conference of Commissioners on Uniform State Laws began work on what was to become the original UPC. The National Conferences and the ABA's House of Delegates approved the UPC in 1969.

The 1969 UPC was an attempt to modernize some of the traditional rules and provide a degree of uniformity for the American law …

Keeping It In The Family: The Pitfalls Of Naming A Family Member As A Trustee, Richard C. Ausness

Law Faculty Scholarly Articles

This article is concerned with trusts in which either the settlor, trustee, or beneficiaries are members of the same family. For example, the settlors may be the parents, grandparents, or other relatives of the trust beneficiaries. Trustees may be settlors, parents of the beneficiaries, children of the settlor, and other family members, while beneficiaries may include either the settlor, the settlor's spouse, children, grandchildren, or other relatives of the settlor. These persons will be referred to as "family members."

Virtually all family members have disagreements with other family members and sometimes these disagreements can destroy relationships and even lead to …

A "Mere Expectancy?" What Rights Do Beneficiaries Of A Revocable Trust Have Prior To The Death Of The Settlor?, Richard C. Ausness

Law Faculty Scholarly Articles

Revocable trusts became a popular form of a will substitute in the 1960s and remain so to this day. If the trust is funded, the settlor typically retains the right to receive income from the trust, the right to invade the trust principal, and the right to modify the terms of the trust. In addition, the settlor may serve as trustee or may appoint a third-party trustee. At the settlor's death, the trust assets, which may also include property transferred to the trust from the settlor's probate estate by means of a pour-over provision in the will, will be distributed …

Discretionary Trusts: An Update, Richard C. Ausness

Law Faculty Scholarly Articles

In the past, settlors tended to limit a trustee’s discretion by setting forth a specific formula for the distribution of trust assets. Nowadays, however, settlors often prefer to vest more discretion in their trustees. This is partly due to the fact that beneficiaries tend to live longer and, therefore, trusts inevitably last longer, thereby requiring trustees to respond to changing conditions. In addition, settlors often believe that vesting increased discretion on the part of trustees will discourage beneficiaries from bringing expensive and disruptive challenges to their decisions.

Nevertheless, the trend toward increased discretion is not without its problems. First of …

The Timing Of Testation, Mark Glover

Kentucky Law Journal

No abstract provided.

My Response To Beyer And Bove, Richard C. Ausness

Law Faculty Scholarly Articles

Alexander Bove and Gerry Beyer were kind enough to read and comment upon my article about discretionary trusts. I thank them for the time and effort that they put into this assignment and I appreciate the constructive and insightful comments that they made. Needless to say, it is no small task to follow in the footsteps of the great Dean Halbach.

When I read their comments, my first reaction was to say “Gee, I wish that I had thought of that!” Between the two of them, Alexander Bove and Gerry Beyer identified a number of areas that I should have …

Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness

Law Faculty Popular Media

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives.

Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness

Law Faculty Scholarly Articles

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives. Specifically, it explores the history of non-charitable purpose trusts and summarizes the differences between private trusts, charitable trusts, and non-charitable purpose trusts. This Article also examines the treatment of non-charitable purpose trusts in England and the United States prior to the promulgation of the Restatement of Trusts in 1935. This Article surveys the recent adoption of non-charitable purpose trust provisions in the Uniform Trust Code and various Restatements and gives advice on drafting the trust instruments. Lastly, this Article concludes …

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.

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 …

Sherlock Holmes And The Problem Of The Dead Hand: The Modification And Termination Of "Irrevocable" Trusts, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is about the modification and termination of so-called “irrevocable” trusts. A trust may be made irrevocable at the time of its creation or it may become so at a later time. A testamentary trust is one that is embodied in a will and becomes effective at the testator’s death. Since the testator will be dead by the time the trust becomes effective, he will not be in a position to modify or revoke it. For the same reason, a revocable trust will become irrevocable when the settlor dies or when the power to revoke is released. Finally, an …

When Is A Trust Protector A Fiduciary?, Richard C. Ausness

Law Faculty Scholarly Articles

The use of trust protectors has become increasingly popular in the past twenty years. This is largely due to the fact that settlors can use trust protectors to provide more flexibility in trust management, especially for long-term trusts. However, the use of trust protectors is not without some risk. First of all, the legal status of trust protectors is not explicitly recognized in some states. Furthermore, even in those states which do recognize the legality of trust protectors, the nature and extent of their powers is sometimes not always clear. Finally, there is the vexing question of whether trust protectors …

Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is …

Forcing Life On The Dead: Why The Pregnancy Exemption Clause Of The Kentucky Living Will Directive Act Is Unconstitutional, Kristeena L. Johnson

Kentucky Law Journal

No abstract provided.

The Role Of Trust Protectors In American Trust Law, Richard C. Ausness

Law Faculty Scholarly Articles

“A trust is an arrangement whereby one person (the trustor) transfers property to another person or entity (the trustee) and directs the trustee to hold the property for the benefit of another person (the beneficiary).” These days, trustees often have significant discretionary and administrative powers. The increased use of institutional trustees, as well as the growing sophistication and complexity of modern trust asset management, have induced many settlors to give their trustees greater power and discretion. In addition, many states have enacted statutes, such as the Uniform Trustees’ Powers Act or the Uniform Trust Code (UTC), that confer broad powers …

How Do I Love Thee, Let Me Count The Days: Deathbed Marriages In America, Terry L. Turnipseed

Kentucky Law Journal

No abstract provided.

Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Law Faculty Scholarly Articles

On January 5,2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations," was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law, trust law, …

Married In Kentucky: A Surviving Spouse's Dower Right In Personalty, Elizabeth S. Muyskens

Kentucky Law Journal

No abstract provided.

The Offshore Asset Protection Trust: A Prudent Financial Planning Device Or The Last Refuge Of A Scoundrel?, Richard C. Ausness

Law Faculty Scholarly Articles

In recent years, a large number of Americans have established "asset protection trusts" in foreign countries. An asset protection trust is a self-settled spendthrift trust which is created in order to protect the settlor's property from the claims of creditors. Virtually all American jurisdictions recognize spendthrift trusts, which prohibit both voluntary and involuntary alienation of a third party beneficiary's interest in a trust; however, most do not allow a settlor who has retained a beneficial interest in a spendthrift trust to protect that interest from the claims of creditors. A growing number of present and former British possessions, however, have …

Practical Risk Management For Trustees And Other Fiduciaries, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Practical Risk Management for Trustees and Other Fiduciaries held by UK/CLE in July 2005.

32nd Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 32nd Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2005.

No-Fault Death: Wedding Inheritance Rights To Family Values, Linda Kelly Hill

Kentucky Law Journal

No abstract provided.

Elements Of Estate Planning Ii: With A Mind To Drafting, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Elements of Estate Planning II: With a Mind to Drafting held by UK/CLE in July 2004.

31st Annual Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 31st Annual Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2004.

30th Annual Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 30th Annual Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2003.

29th Annual Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 29th Annual Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2002.

The Essential Toolbox For The Estate & Trust Lawyer, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on the Essential Toolbox for the Estate & Trust Lawyer held by UK/CLE in July 2002.

28th Annual Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 28th Annual Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2001.

Estate Litigation In Kentucky, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Estate Litigation in Kentucky held by UK/CLE in July 2001.

27th Annual Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Turney P. Berry, Edward J. Beckwith, Kathleen C. Thompson, David J. Herzig, Andrew R. Jacobs, Emily Ledford Lawrence, Wayne F. Wilson, Melony J. Lane, Douglas Dean, Eric A. Manterfield

Continuing Legal Education Materials

Materials from the 27th Annual Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2000.