Law Commons^™

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

Articles

These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

Special Family And Lifestyle Tax Issues, Helena S. Mock

William & Mary Annual Tax Conference

No abstract provided.

Aligning The Stars -- Estate Planning For Entrepreneurs In Interesting Times, Stefan F. Tucker, Mary Ann Mancini, Tammara Langlieb

William & Mary Annual Tax Conference

No abstract provided.

Inheritance Equity: Reforming The Inheritance Penalties Facing Children In Non-Traditional Families, Danaya C. Wright

UF Law Faculty Publications

This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families — single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives — their right to inherit from the persons who function as their parents are severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states' …

Elaine Hightower Gagliardi On Proving Estate And Gift Tax Value: Evolving Lessons From Recent Cases, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

The term, “fair market value,” proves one of the most litigated in the Federal estate and gift tax code. Value lies in the eyes of the appraiser, often resulting in wide disparities between the Service’s and taxpayer’s appraised values.2 The underlying assumptions, and at times the legal principles, on which an appraisal rests can vary greatly based on the particular asset and the appraisal method. The Tax Court claims wide latitude in deciding an asset’s value, reserving the right to draw from each appraisal submitted as it deems appropriate to arrive at ultimate value based on a preponderance of the …

Newsroom: Pbc: Safe Passage Through Guardianship, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

How The Ali's Restatement Third Of Property Is Influencing The Law Of Trusts And Estates, Lawrence W. Waggoner

Articles

Restatements, once limited to restating existing law, are now substantially devoted to law reform. The ALI's website states its law-reform policy thus: "The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law." In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. A paper in that symposium argued against the ALI's law-reform policy. The authors specifically speculated that the reformist rather than restatist character of the recently completed Restatement (Third) of Property: Wills and Other Donative Transfers (Property Restatement) has "very …

Summary Of In Re Estate Of Murray, 131 Nev. Adv. Op. 8, Godinho M. Vincent

Nevada Supreme Court Summaries

The Court determined NRS Chapter 126 (the Nevada Parentage Act) and not NRS Chapter 123 (Nevada’s probate laws) controls for parentage determinations of potential heirs, including determinations sought for probate matters.

East Asian Trusts At The Crossroads, Ying Chieh Wu

Research Collection Yong Pung How School Of Law

The purpose of this article is to scrutinize the legal structure of trusts in Japan, SouthKorea and Taiwan. The so-called infrastructure of the private law of these jurisdictions is rooted in theRoman-Germanic basis, which adopts dichotomous system in respect of that area of privatelaw dealing with property: the law of property and that of obligation. However,the adoption of the trust has caused some problems. Though controversial, thecontract-based view seems to be the majority view in the East Asian civiljurisdictions, yet the property-based view dominates the commonlaw world. However, being influenced by common law, the property-approach isalso asserted by some commentators …

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

Faculty Scholarship

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 …

Enough About Avoiding Probate…, Let’S Avoid Probate Litigation!, Marshall Whitley

Publications

Paper presented to the Estate Planning Council of Diablo Valley, February 15, 2015, monthly report.

A History Of Preferential Share In Ontario: Intestacy Legislation And Conceptions Of The Deserving Or Undeserving Widow, Louise M. Mimnagh, Mcnamara Pizzale

Osgoode Legal Studies Research Paper Series

Ontario’s current method for trying to ensure the fair distribution of an intestate’s estate, or the estate of an individual without a valid Last Will and Testament, is outlined in the Succession Law Reform Act. Specifically, section 45(1) outlines the foundational concept of a “preferential share,” which entitles the surviving spouse to a prescribed financial interest in the estate which is prioritized above all other heirs.

The concept of a preferential share stands in sharp contrast with historical English common law methods of devolving intestate estates in which legal entitlements were heavily influenced by an individual’s gender and marital status. …

Probate Actions And 'Suspicious Circumstances': A Third Standard Of Proof For Allegations Involving Moral Guilt, Louise M. Mimnagh

Osgoode Legal Studies Research Paper Series

When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of …

The Secret Economy Of Charitable Giving, Allison Anna Tait

Law Faculty Publications

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent …

Publicity Rules For Public Trusts, Allison Anna Tait

Law Faculty Publications

That museums are public trusts is a truism in academic discourse and industry discussion. What various commentators mean when they speak about museums as public trusts, however, is less clear. This Article untangles and analyzes the various meanings of "'public trust" and how these meanings translate into regulatory systems. I propose that two predominant meanings-the public resource and trust law meanings-jointly constitute the definition of a public trust, and that each meaning has a consequent regulatory framework. These definitional and regulatory frameworks coexist without conflict in most contexts. In the context of deaccessioning,however, they collide.

Deaccessioning-the practice of a museum …

Trusts In Commerce: Guy Neale V Nine Squares Pty Ltd [2014] Sgca 64, Man Yip

Research Collection Yong Pung How School Of Law

In Guy Neale v Nine Squares Pty Ltd [2014] SGCA 64, the Court of Appealconsidered the operation of the express trust in the commercial context and theprinciples relating to the award of an institutional constructive trust for breachof fiduciary duty. The decision is interesting not only for the exposition of legalprinciples, but also because it relates to the posh restaurant-bar, “Ku De Ta”,located at Marina Bay Sands.

Merger Is Indirect Gift In Cavallaro, Kerry A. Ryan

All Faculty Scholarship

In Cavallaro v. Commissioner, the Tax Court held that a merger of two family-owned businesses resulted in a substantial taxable gift. The taxpayers avoided penalties by demonstrating that they relied in good faith on the mistaken advice of competent tax advisers.

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

Articles

“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 …

Beyond The Five Stages Of Grief: Best Practices For Estate Mediation And Advising The Bereaved Client, Louise M. Mimnagh

Osgoode Legal Studies Research Paper Series

In 1789, Benjamin Franklin famously wrote that nothing in this world is certain “except death and taxes.” Yet, as the baby boomer generation increasingly comprises our senior population, a third near-certainty has emerged: family disputes regarding the estate of a deceased family member. This article reviews the Canadian legislative response to these estate disputes thus far through the introduction of Rule 75.1 of the Ontario Rules of Civil Procedure. It is argued that the introduction of mandatory mediation provides the Estates Bar with an opportunity to review emerging demands on lawyers as well as mediation and bereavement literature in order …

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 …

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

Articles

No abstract provided.

Fiduciary Obligations And Aboriginal Peoples, Kent Mcneil

Articles & Book Chapters

No abstract provided.

A Simpler Verifiable Gift Tax, Wendy G. Gerzog

All Faculty Scholarship

The purpose of this article is to propose a simpler verifiable gift tax, to reassert basic principles of transfer taxes, to encourage simple, outright gifts, and to eliminate some of the major abuses in the current gift tax regime. To accomplish these goals, the proposed tax would simplify gift completion rules, adopt a hard-to-complete rule of transfer taxation, reduce the annual exclusion while expanding the consumption exclusion, and employ loss of preference inducements to increase gift tax compliance.

Correcting The Record Regarding Therestatement Of Property’S Slayer Rulein The Brooklyn Law Review’Ssymposium Issue On Restatements, Lawrence W. Waggoner, John H. Langbein

Articles

In 2014, the Brooklyn Law Review published a symposium issue on Restatements of the Law. The organizer of the symposium, Professor Anita Bernstein, did not afford an opportunity for Restatement reporters to comment on the articles. The organizer did invite the Director of the American Law Institute, Lance Liebman, to contribute an essay commenting on the symposium as a whole. Liebman’s essay—unintentionally no doubt—misstated the position that we took in formulating the slayer rule for the Restatement (Third) of Property: Wills and Other Donative Transfers. Liebman’s misstatement—that we recommended that the Institute adopt a rule allowing a murderer to inherit …

Controversies In Tax Law: A Matter Of Perspective (Introduction), Anthony C. Infanti

Book Chapters

This volume presents a new approach to today’s tax controversies, reflecting that debates about taxation often turn on the differing worldviews of the debate participants. For instance, a central tension in the academic tax literature — which is filtering into everyday discussions of tax law — exists between “mainstream” and “critical” tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or social justice? Should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives?

To capture and interrogate what often seems like a chasm …

Revisiting The Revolution: Reintegrating The Wealth Transmission System, Melanie B. Leslie, Stewart E. Sterk

Articles

Thirty years ago, John Langbein published "The Nonprobate Revolution and the Future of Succession." The article celebrated testators' newfound ability to avoid the expense and delay of the probate court system by holding assets in a variety of non-probate devices, such as retirement and bank accounts with beneficiary designations and revocable trusts. Langbein high-lighted problems the revolution might generate and predicted how they might be resolved. Since then, significant problems have indeed developed. First, wills law doctrines designed to effectuate intent of testators have not been universally extended to non-probate transfers. Second, the fragmentation of the wealth transmission process has …

The Estate Planner's Income Tax Playbook, Samuel A. Donaldson

Faculty Publications By Year

No abstract provided.

The Testamentary Foundations Of Commercial Arbitration, Peter B. Rutledge

Scholarly Works

This Article offers the first systematic treatment of the relationship between commercial arbitration and testamentary arbitration. (By testamentary arbitration, I mean an arbitration clause contained in a will requiring beneficiaries to resolve differences over the estate by means of an enforceable decision by a private party rather than judicial resolution in a probate court.) Recent scholarship and jurisprudence have questioned the enforceability of these arrangements as incompatible with the requirement of a written "agreement" between parties to the arbitration. Contrary to these views, close examination of the historical record of testamentary arbitration leading to the Federal Arbitration Act's enactment reveals …

Copyright Trust, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Collaborative production of expressive content accounts for an ever growing number of copyrighted works. Indeed, in the age of content sharing and peer production, collaborative efforts may have become the paradigmatic form of authorship. Surprisingly, though, copyright law continues to view the single author model as the dominant model of peer production. Copyright law’s approach to authorship is currently based on a hodgepodge of rigid doctrines that conflate ownership and control. The result is a binary system under which a contributor to a collaborative work is either recognized as an author with a full control and management rights or a …