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Full-Text Articles in Law

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon Jan 2023

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In many areas, uniformity of state law is both practical and desirable. The Uniform Commercial Code, for example, brought harmony to conflicting state laws regarding the sale of goods and secured transactions, smoothing the way for interstate commerce. The law of trusts and estates is another area to which the Uniform Law Commissioners have recently turned their attention. Given the multitude of conflicts in state law regarding intestacy, fiduciary powers, and remote notarization, greater consistency between the states would be welcome. One area that should be off-limits to uniform lawmaking is the state income taxation of trusts. Despite complex and …


The Progressives' Antitrust Toolbox, Herbert J. Hovenkamp Jan 2022

The Progressives' Antitrust Toolbox, Herbert J. Hovenkamp

All Faculty Scholarship

The period 1900 to 1930 was the Golden Age of antitrust theory, if not of enforcement. During that period courts and scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In subsequent years antitrust policy veered to both the left and the right, but today seems to be returning to a position quite similar to the one that these Progressive adopted. Their principal contributions were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later …


The Invention Of Antitrust, Herbert J. Hovenkamp Jan 2022

The Invention Of Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During that period courts and Progressive scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In a very real sense we can say that this group of people invented antitrust law. The principal contributions the Progressives made to antitrust policy were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later provided the foundation for the …


Trusts And Jurisdiction Clauses - Crociani Revisited: Ivanishvili, Bidzina And Others V Credit Suisse Trust Ltd [2020] Sgca 62, Kian Peng Soh Dec 2020

Trusts And Jurisdiction Clauses - Crociani Revisited: Ivanishvili, Bidzina And Others V Credit Suisse Trust Ltd [2020] Sgca 62, Kian Peng Soh

Research Collection Yong Pung How School Of Law

In the recent Singapore Court of Appeal decision of Ivanishvili, Bidzina and others v Credit Suisse Trust Ltd, the court analysed the effect of a forum administration clause in the trust context, holding that while the clause in question was a jurisdiction clause, it was not an exclusive jurisdiction clause governing the dispute between the trustees and beneficiaries.


Surveying The Not Yet Dead: Comment On Hirsch’S Empirical Analysis Of Revival Of Wills, Jonathan Klick Jun 2020

Surveying The Not Yet Dead: Comment On Hirsch’S Empirical Analysis Of Revival Of Wills, Jonathan Klick

All Faculty Scholarship

Hirsch advocates using an empirically grounded presumption when handling the revival of wills problem. The empirical baseline, according to him, should match what most people think (rightly or wrongly) a court would do when the revival problem arises. Hirsch then presents survey evidence on people’s expectations in this setting. Hirsch’s proposal is completely sensible in principle, and there is no reason it should be restricted to the revival problem. The argument applies throughout the field of wills, trusts, and estates and maybe even the law more generally. In practice, however, defining the relevant population to survey could pose a problem.


What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford Jun 2020

What Probate Courts Cite: Lessons From The New York County Surrogate’S Court 2017-2018, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees …


In Re Raggio Family Trust, 136 Nev. Ad. Op. 21 (Apr. 9, 2020), Aariel Williams Apr 2020

In Re Raggio Family Trust, 136 Nev. Ad. Op. 21 (Apr. 9, 2020), Aariel Williams

Nevada Supreme Court Summaries

The Court determined that neither the language in the trust instrument nor NRS 163.4175 requires the trustee to consider the beneficiary’s other assets before making distributions from the trust.


Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits, Adrienne D. Davis Jan 2020

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.


Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt Jan 2020

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, …


Strengthening The Passivity Default, Ian Ayres, Edward Fox Jun 2019

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.


Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox Mar 2019

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 …


The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon Jan 2019

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article …


Magical Thinking And Trusts, Bridget J. Crawford Jan 2019

Magical Thinking And Trusts, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

At a time of monumental economic inequality in the United States, wealthy individuals and their tax-motivated behavior have come under significant scrutiny from all corners. In 2019, the Supreme Court issued its first major ruling in over sixty years on the state income taxation of trusts. In North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the Court declined to close what some critics consider to be a major loophole that benefits the trusts that wealthy individuals create for family members. This Article makes two principal claims—one interpretative and the other normative. This Article explains why the …


Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak Jan 2019

Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak

Faculty Publications & Other Works

In trust administration, there is often a tugging contest between a settlor's or trustee's desire to limit certain information being released to beneficiaries and beneficiaries' desire for total transparency. While the reasons for limiting information are varied, a common one is autonomy, sometimes emanating from the settlor's or trustee's concern that such information may be harmful to the beneficiary or the family dynamic. Nowhere is this tension more apparent than the interplay between Uniform Trust Code (UTC) Sections 105 (Default and Mandatory Rules) and 813 (Duty to Inform and Report).


Less Trust Means More Trusts, Bridget J. Crawford Jan 2019

Less Trust Means More Trusts, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the word, one can discern fault lines in contemporary U.S. political and …


The Decline Of Revocation By Physical Act, Barry Cushman Jan 2019

The Decline Of Revocation By Physical Act, Barry Cushman

Journal Articles

The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This article surveys the place of revocation by physical act in …


The Rise Of Business Trusts In Sustainable Neo-Innovative Economies, Lee-Ford Tritt, Ryan Scott Teschner Jan 2019

The Rise Of Business Trusts In Sustainable Neo-Innovative Economies, Lee-Ford Tritt, Ryan Scott Teschner

UF Law Faculty Publications

This Article is organized as follows: Part I provides a basic understanding of business trusts in the United States. Next, Part II explores the differences between business trusts in the United States and those in Singapore. Finally, Part III discusses how historical and cultural influences may have shaped the success—or lack thereof—of the business trust form in Singapore and in the United States.


The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong Jul 2018

The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong

Faculty Publications

Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working, and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact. One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E. U. Member States, U.S. citizens can also be affected by …


Discretionary Trusts: An Update, Richard C. Ausness Jan 2018

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 …


Change Is Constant In Estate Planning: Reflections Of An Actec Law Journal Editor, Bridget J. Crawford Jan 2018

Change Is Constant In Estate Planning: Reflections Of An Actec Law Journal Editor, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Change is the only constant in the life of a trusts and estates professional. The law changes; the needs of clients change; the methods for achieving certain results change; technology and modes of communication change. So, too, it can be said that change is the only constant running through more than forty years of our organization's flagship publication.


“Undemocratic” Trusts And The Numerus Clausus Principle, E. Gary Spitko Jan 2018

“Undemocratic” Trusts And The Numerus Clausus Principle, E. Gary Spitko

Faculty Publications

In Democracy and Trusts, Professor Carla Spivack argues that, pursuant to the numerus clausus principle, a court is empowered to impair legislation authorizing a certain trust form where the legislation was not the product of “democratic decision-making.” This imaginative claim is predicated upon two antecedent claims. First, Professor Spivack argues that the numerus clausus principle should apply to equitable interests. Second, she argues that the numerus clausus principle does not invest legislatures with the sole authority to determine allowable property forms; rather, courts also have an important role to play in composing the list of property forms. This review …


Commentary On Reid Kress Weisbord And David Horton, Boilerplate And Default Rules In Wills Law: An Empirical Analysis, Danaya C. Wright Jan 2018

Commentary On Reid Kress Weisbord And David Horton, Boilerplate And Default Rules In Wills Law: An Empirical Analysis, Danaya C. Wright

UF Law Faculty Publications

Reid Weisbord and David Horton have undertaken an incredibly important empirical study in an area of law that suffers from a large gap in our understanding of how people actually choose to leave their property at their death and the drafting traps that can easily lead to litigation. The study is also important for illustrating how the lawyers we teach in Trusts and Estates need to be more careful in drafting the various documents to manifest their clients' testamentary intent. In particular, Weisbord and Horton studied 230 recently probated wills in Sussex County, New Jersey and discovered that the use …


In Re Davis Family Heritage Trust, 133 Nev. Adv. Op. 26 (May 25, 2017)., Ping Chang May 2017

In Re Davis Family Heritage Trust, 133 Nev. Adv. Op. 26 (May 25, 2017)., Ping Chang

Nevada Supreme Court Summaries

No abstract provided.


Klabacka V. Nelson, 133 Nev. Adv. Op. 24 (May 25, 2017), Christopher Kelly May 2017

Klabacka V. Nelson, 133 Nev. Adv. Op. 24 (May 25, 2017), Christopher Kelly

Nevada Supreme Court Summaries

The Court determined that (1) family courts have subject matter jurisdiction in divorce proceedings that involve issues otherwise outside the scope of family courts, (2) parol evidence may not be considered to determine party intent to form separate property agreements and self-settled spendthrift trusts where the written agreements are valid and unambiguous, (3) a court order equalizing assets between different spendthrift trusts is improper because the NRS protects against court orders that move assets from trusts and against moves that do not benefit trust beneficiaries, (4) spendthrift trusts may not be reached for payment of personal obligations not known at …


In Re Connell Living Trust, 133 Nev. Adv. Op. 19 (May. 04, 2017), Marco Luna May 2017

In Re Connell Living Trust, 133 Nev. Adv. Op. 19 (May. 04, 2017), Marco Luna

Nevada Supreme Court Summaries

The Nevada Supreme Court affirmed the decision of the district court that found Appellant had breached her fiduciary duty when she withheld assets from entering a trust created for her children, the Respondents. The Court found that the mother had insufficient evidence to raise a genuine issue of material fact that she owned 100% of a trust created by her parents when her children were slated to receive 65% of said trust from their grandparents. The Court affirmed the lower court, ordered the assets be moved to the children's trust, and awarded them attorney's fees.


Asymmetries In The Generation And Transmission Of Wealth, Felix B. Chang Apr 2017

Asymmetries In The Generation And Transmission Of Wealth, Felix B. Chang

Faculty Articles and Other Publications

This Article assigns a redistributive role to the legal rules of trusts and estates. Unlike business law, trusts and estates has lagged in articulating a comprehensive theory on inequality. Consequently, income inequality is compounded intergenerationally as wealth inequality, with dire consequences for economic productivity and social stability. To move the discourse on wealth inequality, this Article explores the divergent approaches toward inequality in business law and trusts and estates.

Additionally, this Article recasts trusts and estates’ legal rules as wealth transfer mechanisms. Four categories of rules are implicated: (1) rules that interact with the tax system, (2) rules that govern …


Social Control Of Wealth In Antebellum New York, William P. Lapiana Jan 2017

Social Control Of Wealth In Antebellum New York, William P. Lapiana

Articles & Chapters

No abstract provided.


E. Bement & Sons V. National Harrow Company: The First Skirmish Between Patent Law And The Sherman Act, Amelia Rinehart Jan 2017

E. Bement & Sons V. National Harrow Company: The First Skirmish Between Patent Law And The Sherman Act, Amelia Rinehart

Utah Law Faculty Scholarship

In the 1890s, the Sherman Act presented a host of unknowns for patent owners and lax enforcement enabled the proliferation of trusts like the Harrow Trust embodied in the practices of National Harrow. Bement, a profligate license violator, ended up fighting the trust all the way to the Supreme Court, but the surprising outcome left an enduring impression on the interplay between antitrust and patent law. In this way, the case has been both important and forgotten over time. Given the outcome in Actavis, and the possibility for a change of personnel on the Court that may shift it further …


Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt Dec 2016

Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging …


Let My Trustees Go! Planning To Minimize Or Eliminate Virginia And Other State Income Taxes On Trusts (Powerpoint), Richard W. Nenno Nov 2016

Let My Trustees Go! Planning To Minimize Or Eliminate Virginia And Other State Income Taxes On Trusts (Powerpoint), Richard W. Nenno

William & Mary Annual Tax Conference

No abstract provided.