Law Commons^™

Advanced Health Care Directives In Nebraska: Health Care Power Of Attorney And Living Wills, J. David Aiken

Extension Farm and Ranch Management News

First paragraph:

During this period of coronavirus pandemic, some Nebraskans may be concerned about how medical decisions will be made for them if they are unable to communicate their wishes to their health care providers themselves. In these circumstances, health care providers will normally consult with the patient’s family members who may be available (spouse, then adult children–consensus, then parents, etc.) If no family members are present, the health care providers will use their best medical judgment in making health care decisions for the patient.

Disclaimer

This information is intended for educational purposes only; it must not be taken as …

Accounting For Ag: Step Up While Passing Down, Austin Duerfeldt

Extension Farm and Ranch Management News

Summary

Through this article, I hope you’ve gained a better understanding of the basics of a step up in basis. A step up in basis can be viewed as an opportune time to sell long held farm ground that appreciated in value, with little to no capital gain issues. It plays a vital role in estate planning. In the individual case of each farmer/rancher, how the step up in basis might work for your operation varies on many specific circumstances. Developing an estate planning team that includes professionals such as an attorney and accountant, as well as, investment and insurance …

Utilizing Estate Plans To Achieve Economic Justice, Geber Penate

Poverty Law Conference & Symposium

Bayview has been the home to many black families for decades. However, the inability of title-holders to create distribution plans for their estate before their death has contributed to their ultimate displacement. When a title-holder of property dies, their property is required to go through a court system known as probate. The probate court system has various functions ranging from identifying assets, calculating any owed taxes and fees, and distributing property. The only way to avoid probate is through the execution of a probate-avoidance distribution document, which is mentioned in further detail below. The probate court system, to say the …

Assumptions (Mistakes) That Parents Make With Estate Plans, Allan Vyhnalek

Extension Farm and Ranch Management News

Excerpt:

The main take-home message should be that the parents: 1) have a plan and continue to revise that plan from time to time and 2) be sure to think through the unintended consequences of your plan. Hopefully, some of the common assumptions mentioned here can be put into place so that the family does stay together for decades to come.

This is not an exhaustive list of assumptions that can go awry. It is being presented as a place for family thought and discussion to start. For more information go to: http://agecon.unl.edu/succession. There are other articles and video …

United States V. Dimartino, Christian Ramos

GGU Tax & Estate Planning Review

Whether the United States District Court for the District of Connecticut, abused its discretion in denying DiMartino’s request for a competency hearing and giving no weight to Defendant’s psychologist’s report prepared at counsel’s request.

Fraying The Knot: Marital Property, Probate, And Practical Problems With Tribal Bans, Suzianne D. Painter-Thorne

Articles

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in …

Salce V. Cardell, Corey Michelle Timpson

GGU Tax & Estate Planning Review

Whether either party violated the in terrorem clause as stated in both the trust and last will and testament.

Duncan V. Rawls, Steven J. Reading

GGU Tax & Estate Planning Review

Whether and under what circumstances Georgia public policy prohibits enforcement of an in terrorem, or no contest, provision of a trust.

February 2020 Breakdown Of State-By-State Gilti Conformity, Bacilio Medez Ii

GGU Tax & Estate Planning Review

It has been two years since the enactment of the Tax Cuts and Jobs Act (TCJA) and many states are still wrestling with exactly how they plan to conform to key provisions of the law—particularly those provisions related to Global Intangible Low-Taxed Income (GILTI).

Deconstructing Foundational Principles Of Trusts And Estates Law, Sergio Pareja

Faculty Scholarship

REVIEW: Naomi R. Cahn, Dismantling the Trusts and Estates Canon, 2019 Wis. L. Rev. 165 (2019).

All areas of the law have certain foundational principles or beliefs that are widely shared. These underlying assumptions often go unchallenged. In the trusts and estates field, these principles include: (1) giving a certain amount of ongoing control to the transferor, or in the case of a decedent, to the “dead hand,” (2) respect for formality, (3) the importance of the traditional, legally-recognized family, and (4) the “wealth” narrative that focuses on the transmission of conventional forms of wealth.

In her …

How Inheritance Law Affects Family Firm Performance: Evidence From A Natural Experiment, Yong Kyu Gam, Min Jung Kang, Junho Park, Hojong Shin

Research Collection Lee Kong Chian School Of Business

We argue that changes in the inheritance system affect incentives leading to sibling rivalry among descendants and therefore have a material impact on family firm performance. Using South Korea's 1991 inheritance law reform that stipulates the equal distribution of a deceased person's property to descendants, we find that the performance and operating growth rate in family firms show significant enhancement compared with those of nonfamily firms. Moreover, the positive effects are greater for family firms that undergo a business succession with multiple sons and married daughters. Overall, our results suggest that changing to equal bequests of inheritance has a positive …

A New Trust Code For New York, Renee R. Roth, William P. Lapiana

Other Publications

No abstract provided.

The Law Of High-Wealth Exceptionalism, Allison Anna Tait

Law Faculty Publications

No family is an island. But some families would like to be – at least when it comes to wealth preservation – and they depend on what this Article calls the law of high-wealth exceptionalism to facilitate their success. The law of high-wealth exceptionalism has been forged, over the years, from the twinned scripts of wealth management and family wealth law, both of which constitute high-wealth families as sovereign entities capable of self-regulation and deserving of exemption from the rules that govern ordinary-wealth families. Consequently, high-wealth families take advantage of complicated estate planning techniques and highly favorable wealth rules in …

Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt

UF Law Faculty Publications

Will construction—the process wherein a trier of fact must determine the testator’s probable intent because the testator’s actual intent is not clear—is too little discussed and too often misunderstood in succession law jurisprudence. Yet, construction issues are becoming increasingly important due to a growing number of will and trust disputes concerning the determination of beneficiaries in a post-Obergefell United States. Currently, courts are being asked to construe terms like “spouse,” “husband,” “wife,” “child,” “son,” “daughter,” and “descendants” in estate planning documents during a time in which understandings of marriage, identity, reproduction, religious liberty, and public policy are rapidly evolving. Interestingly, …

Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits, Adrienne D. Davis

Scholarship@WashULaw

This Article highlights the importance of using both popular culture references and fictional show characters as mediums for teaching courses on Trusts and Estates. Utilizing post-mortem intimacy audits, specifically through pop culture pedagogical hypotheticals and case studies, Professor Davis highlights the importance of understanding doctrines within Trusts and Estates Law. Focusing on the examples of Shaquille O’Neal and Strom Thurmond, this Article highlights three important lessons for students: the fragility of estate planning, the effects of individual estate planning on groups’ broader wealth and political equality, and the role of private law in distributing legal rights and political equality.

Against Fiduciary Constitutionalism, Samuel L. Bray, Paul Miller

Journal Articles

A growing body of scholarship draws connections between fiduciary law and the Constitution. In much of this literature, the Constitution is described as a fiduciary instrument that establishes fiduciary duties, not least for the President of the United States. This Article examines and critiques the claims of fiduciary constitutionalism. Although a range of arguments are made in this literature, there are common failings. Some of these involve a literalistic misreading of the works of leading political philosophers (e.g., Plato and Locke). Other failings involve fiduciary law—mistakes about how to identify fiduciary relationships, about the content and enforcement of fiduciary duties, …

What Happened To Grandma’S House: The Real Property Implications Of Dying Intestate, Danaya C. Wright

UF Law Faculty Publications

Studies have shown that intergenerational wealth transmission significantly affects wealth concentration and the growing wealth gap. Of the two million households that received an inheritance or a substantial inter vivos gift each year, roughly half are small, under $50,000, while transfers of $1 million or more account for only 2% of the transfers. Yet, those 2% of inheritances over $1 million comprise 40% of total wealth transferred. As scholars continue to examine the role of inheritance in the alarming wealth gap, few are focusing on how the laws of intestacy might exacerbate the gap by leading to greater wealth loss …

Trustees’ Investment Duties And Cryptoassets, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This article considers the legal and practical concerns for trustees regarding cryptocurrencies and other related instruments, which will be referred to as “cryptoassets”. It will briefly introduce the various types of cryptoassets and explore the risks involved when trustees decide to (or not to) invest in these instruments. This article provides a framework on how trustees should approach the issue of cryptoassets.

Giving Back A Fraudulent Transfer: A Defense To Liability?, David G. Carlson

Articles

In Whitlock v. Lowe (In re Deberry) (5th Cir. 2019), the Fifth Circuit court of appeals found it obvious that if a transferee gives back fraudulently transferred funds (which the debtor then dissipates), the transferee has a complete defense to liability to the transferor’s bankruptcy trustee. This puts the Fifth Circuit at odds with the Sixth and Seventh Circuits, where the prepetition give-back counted as no defense. This article concludes that a more nuanced position should mediate between these extremes, based on an “innocent donee” defense retrieved from Nineteenth Century precedent. The article emphasizes that if bad faith transferees for …

Trustee Liability For Breach Of Trust—Loss Or Profit, Or Loss And Profit?, Kenneth F. Joyce

Journal Articles

No abstract provided.

Remedying The Abuse Of Organisational Forms: Trusts And Companies Considered, Pey Woan Lee

Research Collection Yong Pung How School Of Law

Both the trust and the company are organisational forms distinguished bytheir ability to facilitate affirmative asset partitioning. However, this feature isvulnerable to abuse by those whose purpose is to defeat creditor rights. Thisarticle considers recent developments in judicial doctrines aimed atcountering such abuse and the extent to which they are explicable by, orcoherent, with economic analyses drawn from the work of Hansmann andKraakma.

What Can The Apple Teach The Orange? Lessons U.S. Land Trusts Can Learn From The National Trust In The U.K., Jessica Owley, Lauren Gwin, Sally K. Fairfax

Articles

The National Trust in England, Wales, and Northern Ireland is one of the oldest and most revered private land conservation organizations in the world. While the private land conservation movements in the United States and the United Kingdom began at a similar time and with similar tools, conservation attitudes and methods in the two countries diverged. Today, the National Trust dominates land conservation in the U.K. while the strength of the U.S. movement is the energy of over 1,500 smaller organizations operating at different scales across the country. Despite the differences, this project looks to the National Trust in England …

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

Faculty Scholarship

Author's Note: This Article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed. Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this …

In Re Fund For Encouragement Of Self Rel., 135 Nev. Adv. Op. 10 (Apr. 25, 2019), Skylar Arakawa-Pamphilon

Nevada Supreme Court Summaries

NRS § 163.556 does not permit a court to disregard trustees' objections and appoint half of a wholly charitable trust’s assets to a new trust when, pursuant to the trust instrument’s terms, all trustees must consent before distributing half of the trust’s assets.

Proposed New York Trust Code, Surrogate’S Court Advisory Committee To The Chief Administrative Judge Of The Courts Of The State Of New York

Other Scholarship

Text of a proposed New York Trust Code to be submitted to the New York Legislature.

E-Notice And Comment On Due Process, Sergio J. Campos

Articles

No abstract provided.

Strengthening The Passivity Default, Ian Ayres, Edward Fox

Articles

In The Prudence of Passivity, Bryon Harmon and Laura Fisher (hereafter HF) argue that "passive management become the default approach for the investment of trust funds, to be abandoned only when circumstances specifically dictate the use of active management."' In this comment we argue that their thesis could be strengthened (i) by more clearly distinguishing between default law and default investment practices, (ii) by more clearly articulating their favored altering rules.

Fiduciary Principles In Chinese Law, Nicholas C. Howson

Book Chapters

This chapter examines the principles of fiduciary doctrine that are found in Chinese law, with a particular focus on developments in law and regulation in the People’s Republic of China (PRC) after the early 1980s. It also considers the advent and elaboration of what the Anglo-American legal system calls “corporate fiduciary duties,” including partnership fiduciary duties. The chapter first provides an overview of basic conceptions of corporate fiduciary duties that entered Chinese law and practice through at least three separate tracks: academic, regulatory, and jurisprudential. It then explores corporate and partnership fiduciary duties after 2006, placing emphasis on corporate law …

Amy Mclellan, Jd, Llm, To Lead Goldengate University's New Joint Llm And Ms Intaxation Program, Golden Gate University School Of Law

Press Releases

Golden Gate University (GGU) announces the appointment of Amy B. McLellan , JD, LLM, as Dean of the Braden School of Taxation and Director of the LLM Taxation and Estate Planning programs— marking the beginning of a groundbreaking joint program, after separate operation within the University for many years.This new high-level role signifies another innovative step forward to prepare students for today's merging worlds ob business, law, and technology.

Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox

Articles

Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost, however, in …