Law Commons^™

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 …

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.

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 …

The Uniform Disposition Of Community Property Rights At Death Act, Sarah N. Welling

Law Faculty Scholarly Articles

In 1977, eight of the United States use community property systems instead of the common law systems used in the other 42 states. Because the community property system is totally alien to common law states which do not recognize community interests in property, when domiciliaries of a community property state migrate to a common law state problems develop over the definition of property rights. Two questions usually arise: do the spouses’ rights and interests in the community property change if they move to a common law state? And if not, how are these rights and interests protected? The first question …