Law Commons^™

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article describes selected cases and significant legislation from the period of June 1, 2014 through May 31, 2015 pertaining to Georgia fiduciary law and estate planning.

Fiduciary Governance, Paul B. Miller, Andrew S. Gold

William & Mary Law Review

The fiduciary relationship is one of the most fundamental legal relationships, and its importance for both public and private law is increasingly recognized. Fiduciary mandates typically involve one person—the fiduciary—administering the affairs or property of other persons—an individual beneficiary or group of beneficiaries. Yet, as we will demonstrate, this is not the only way fiduciary relationships are structured. Most accounts of fiduciary law oversimplify the law because they exclude a categorically different form of fiduciary relationship. A significant set of fiduciary relationships feature governance mandates in which the fiduciary is charged with pursuing abstract purposes rather than the interests of …

Forfeiting Trust, Deborah S. Gordon

William & Mary Law Review

Over the past two years, a significant number of appellate courts in jurisdictions throughout the country have faced trust provisions that purport to disinherit any beneficiaries who challenge a trustee’s decision making. Such provisions to “secure compliance ... with dispositions of property”—known as “forfeiture,” “no-contest,” “anticontest,” or “penalty” clauses—have appeared in wills for well more than a century. But the trust clauses differ from their testamentary counterparts and thus deserve serious scrutiny in their own right, especially because the abundance of recent cases has led to increasingly inconsistent and haphazard approaches. This Article exposes the problems that trust forfeiture clauses …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

Property Law—Upending The Familiar Tools Of Estate Planning: Equity Renders Revocable Trusts Subject To The Arkansas Spousal Election. In Re Estate Of Thompson, 2014 Ark. 237, 434 S.W.3d 877., Lucy L. Holifield

University of Arkansas at Little Rock Law Review

No abstract provided.

The Family Llc: A New Approach To Insuring Dynastic Wealth, Evan Michael Purcell

The Journal of Business, Entrepreneurship & the Law

This Article introduces the taxpayer to the basic background principles needed to understand the inner workings of the investment, then provides a guide to drafting considerations for the family's attorney, and concludes with a general plan to maintain business legitimacy and take advantage of tax-favored status, while retaining the flexibility essential to combating the unexpected. Part II addresses the historically favored tax treatment of life insurance products, as well as relatively recent restrictive reforms. Part III addresses the background foundation of the LLC entity and surveys its skeletal structure. Part IV introduces a practical example of how to create an …

Front Matter

ACTEC Law Journal

No abstract provided.

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

ACTEC Law Journal

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 Generation-Skipping Transfer Tax And Sociological Shifts In Generational Length: Proposing A Generation-Inflation Index For Taxation, Alyssa A. Dirusso

ACTEC Law Journal

No abstract provided.

Medicaid Planning For Long-Term Care: California Style, John A. Miller, Vanessa S. Stroud

ACTEC Law Journal

California's Medicaid program, "Medi-Cal", differs significantly from programs in other states. This article sets out the major distinctions between California's program and other state programs as applied to long term care for disabled seniors. It illustrates the major planning techniques that are employed throughout the country and also those techniques that are available only in California.

Medicaid is the means tested, cooperative state and federal program that pays for much of the nursing home and other long term care in the United States. California's uneven implementation of federal legislation regulating Medicaid over the last several decades has created many challenges …

The Reed Case: The Seed For Equal Protection From Sex-Based Discrimination, Or Polite Judicial Hedging?, John P. Murphy Jr.

Akron Law Review

Reed is yet another example of how the Equal Protection Clause may be used to strike down state statutes which embody arbitrary classifications that are neither fairly nor substantially related to the object of the statute, and which bring about the invidious discrimination that is repugnant to the Fourteenth Amendment. It must stressed that the outcome of Reed is clearly commendable in terms of justice. What is troublesome is the fact that one may contend that the Supreme Court hedged, perhaps avoided, an excellent opportunity in which to expand the constitutional scope of the Equal Protection Clause. Reed afforded the …

The Uniform Probate Code And The Practice Of Law In Ohio, Robert M. Brucken

Akron Law Review

The author, an active probate lawyer, believes much of an attorney's time is wasted in present probate practice. Too much time is spent in attempting to cut the red-tape requirements of "make-work" probate procedures that serve no purpose in all but a very few cases. Therefore, it is worthwhile to call to the attention of the practicing bar the need for probate reform, and the attractive vehicle for reform which is now available.

This vehicle, the Uniform Probate Code, was prepared as a sevenyear project of the National Conference of Commissioners on Uniform State Laws, with the assistance of the …

Contractual Wills: Misplaced Marital Loyalties: Eunsuing Litigation: Increased Federal Estate Taxes, Addison E. Dewey

Akron Law Review

A MYSTIFYING PLETHORA OF RECENT CASES indicates that husbands and and wives seem to be placing much more euphoric confidence in the judicial enforcement of their contractual wills than they do in unbargained-for assurances by the spouse that the provisions of such will never be changed. Many cases indicate that married couples feel that while mutual trust and confidence may be a revered tradition resulting from matrimonial bliss, they prefer to superimpose upon testamentary dispositions of their estates the common law concept of contract as an agreement which the courts will enforce. The repeated pattern of the various cases is …

Nontaxable Transfers; Interest-Free Loans; Crown V. Commissioner, Linda Haught Robb

Akron Law Review

"INTEREST-FREE FAMILY LOANS remain outside the purview of the federal estate and gift tax statutes despite the recent efforts of the Internal Revenue Service to convince the judiciary that, in such loans, the fair market value of the foregone interest is a gift. This is an extrapolation of the Service's efforts to find income to the recipient in other interest-free money situations. In light of the Service's limited activity in dealing with tax consequences of the interest-free loans, the Seventh Circuit's decision in Crown v. Commissioner' will be an important reference for estate and tax planning. Doubtlessly, the Service will …

The Use Of Short-Term Trusts In Conjunction With Interests In Oil Or Gas Properties: A Practitioner's Guide, Robert W. Malone

Akron Law Review

This article will address the tax consequences of the funding of a short-term trust with an interest in oil or gas wells. At the end of this article there is set forth as Appendix 11 a form of short-term trust which could be used for this purpose. Appendix 11 contains an example of a situation where such use would be appropriate and a computation of the tax savings which can be generated by the use of such a trust.

Rediscovering The Resulting Trust: Modern Maneuvers For A Dated Doctrine?, Malcolm L. Morris

Akron Law Review

Usually thought of as only a remedial measure, the resulting trust may now be ready to take on an expanded role. Although not considered devolutionary vehicles per se, resulting trusts can direct the passage of title, and are therefore potentially useful estate planning tools. To serve in this capacity, the applicable principles used to raise resulting trusts must be introduced at the time of the transaction and not resorted to as an afterthought at some later date. Using resulting trusts in such a manner is arguably inconsistent with the theory supporting their existence. This article suggests, however, that the courts …

United States Trust Co. V. I.R.S., Scott D. Brackett

Akron Law Review

During the course of its administration, an estate may receive income that is subject to federal income tax. When, and if, an estate receives such income the executor is faced with the task of filing the estate's income tax return along with a number of related considerations. One of the more important considerations is the allocation of the burden of such tax between the beneficiaries of the estate and the estate itself.

Subchapter J of the Internal Revenue Code provides the mechanism to allocate that burden between the beneficiaries and the estate. Generally, Subchapter J attempts to allocate the tax …

The Ohio Designated Heir Statute, Albert H. Leyerle

Akron Law Review

This article will discuss the procedure for the designation of an heir, its vacation or revocation, and the effect of such a designation. The status of the designated heir, examples of unanswered questions and gray areas, and the practical significance of the statute will be included in this discussion. The conclusion will further illustrate just how powerful and practically significant a designation can be.

Justice Before Generosity: Creditors' Claim To Assets Of A Revocable Trust After The Death Of The Settlor, Lauren Ashley Gribble

Akron Law Review

The Ohio legislature recently passed the Ohio Trust Code, which primarily codified existing trust law. In keeping with the operation of revocable trusts and the principle that settlors should not be able to use such trusts to avoid creditors, it provides that creditors may claim the assets of a revocable trust during the lifetime of the settlor. It is, however, silent as to creditors’ ability to access trust funds after the settlor’s death. Two Ohio appellate courts have discussed the statute, only to arrive at different conclusions regarding its operation and significance in light of case precedent. This Article will …

A Time To Live, A Time To Die, Linda Shields-Stiefel

Akron Law Review

The purpose of this Comment is to review S.B. 1 and to compare it to other states living will statutes and to the proposed Uniform Rights of Terminally Ill Act.

Part I briefly overviews the American history of living wills. Part II reviews living will/right to die statutes in effect and major court decisions. Part III discusses Ohio's position on the right to die, both statutory and judicial. Part IV reviews S.B. 1 and suggests several changes. The conclusion recommends that a uniform living will statute be enacted to guarantee equal treatment for patients in all jurisdictions.

The Trust Throwback Rules: The Solution Remains After The Problem Fades, John R. Cunningham

Akron Law Review

This article will briefly review the history of the throwback rules and will then show that the small savings still available through trust accumulations that would result without the operation of the throwback rules do not justify the continuance of these complicated throwback rules. In fact, the tax savings through trust accumulations without the throwback rules can be matched even within the operation of the throwback rules. Finally, this article will show that through a small rate change that may be forthcoming for other reasons, the potential savings through the accumulation of income in trusts may be reduced to such …

Advance Directive Accessibility: Unlocking The Toolbox Containing Our End-Of-Life Decisions, Vanessa Cavallaro

Touro Law Review

No abstract provided.

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.

Exposing The Hocus Pocus Of Trusts, Kent D. Schenkel

Akron Law Review

Part II makes the conceptual case for viewing the trust as an elective cost-externalization device. Part III offers the spendthrift trust as the archetypal model for purposes of our analysis, briefly describes the spendthrift trust, and explores its consequences to outsiders to the trust deal. Part IV offers some reasons why the elective externalities of trusts persist. Part V first examines and rejects a couple of approaches to minimizing the externalized costs of trusts that rely on the “bundle of sticks” approach to property interests. It then moves beyond the bundle of sticks approach, settling on a solution based on …

How The Über-Wealthy Benefit From Investing Outside Retirement Plans (And How You Can Too), Sergio Pareja

Catholic University Law Review

Current law incentivizes the use of traditional retirement plans, but those plans may not actually produce the best long-term tax situation for the taxpayer. The stepped-up basis at death does not apply to what is known as “income in respect of a decedent” (IRD). Generally, IRD is income that cannot be assigned from one person to another for income tax purposes. This includes pre-tax income set aside in a traditional employer-sponsored retirement plan, such as a 401(k) plan, as well as contributions to a deductible individual retirement account (IRA). Thus, stock held within a traditional employer-sponsored retirement plan or a …

A Trustee’S Fiduciary Duties At The Start And End Of Administration, Robert Whitman

Catholic University Law Review

Prior to the creation of a trust and at its termination, a trustee’s fiduciary duties are often ambiguous. It is argued that, where fiduciary duties do not exist, contract law may be found to govern the rights of the settlor, the trustee, and the beneficiaries. This article refutes this argument because under the principles of modern contract law, certain conduct may be permitted that would not be acceptable if fiduciary duties existed more clearly. The most common problems arise in three areas: (1) the seeking of a receipt and release by a corporate fiduciary upon an informal termination of a …

Heir Property In The African American Community: From Promised Lands To Problem Lands, Roy W. Copeland

Professional Agricultural Workers Journal

Abstract

African American landowners have been reluctant to take advantage of intergenerational succession laws which provide for an orderly transfer of property from one generation to the next. This reluctance has led to a prevalence of heir property. Heir property is created when a person dies intestate. Heir property has created an impediment to wealth accumulation and has contributed to African American land loss in America. Partition actions are a byproduct of heir property which has operated to accelerate the loss of real property in the African American community. The Uniform Partition of Heir Property Act provides for procedural safeguards …

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Marquette Law Review

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

When An Ex Can Take It All: The Effect—And Non-Effect—Of Revocation On A Will Post-Divorce, Molly Brimmer

Maryland Law Review

No abstract provided.

Tax Planning: Foreign Investment In United States Real Property, William H. Newton Iii

Georgia Journal of International & Comparative Law

No abstract provided.