Estates and Trusts Commons^™

Linton Family Llc And The Step Transaction Doctrine, Wendy G. Gerzog

All Faculty Scholarship

This article discusses Linton, a district court decision about a family limited liability company, indirect gifts, and the step transaction doctrine.

Rudkin Testamentary Trust -- A Response To Prof. Cohen, Douglas A. Kahn

Articles

In the August 3 issue of Tax Notes, Prof. Stephen Cohen wrote an article about Justice Sonia Sotomayor’s opinions in three tax cases. Of those three cases, only the opinion she wrote in William L. Rudkin Testamentary Trust v. Commissioner, 467 F.3d 149 (2d Cir. 2006), Doc 2006- 21522, 2006 TNT 203-4, is worthy of comment. Although the Second Circuit’s decision in that case was affirmed by the Supreme Court under the name Knight v. Commissioner, the construction of the critical statutory language that Justice Sotomayor adopted was rejected and criticized by Chief Justice Roberts, writing for a unanimous court. …

Families For Tax Purposes: What About The Steps, Wendy G. Gerzog

All Faculty Scholarship

At least 4.4 million families in the U.S. are blended ones that include step-children and step-parents. For tax purposes, these steps receive preferential treatment for their status because they are on the one hand included as family members for many income tax benefit sections, but on the other hand excluded as family members for business entity attribution purposes and for gift and estate tax anti-abuse provisions. In the interests of fairness and uniformity, steps should be treated as family members for all tax purposes where steps have in fact voluntarily acted as their biological or adoptive counterparts, both when such …

Negron: Circuits Now Split 2-2, Wendy G. Gerzog

All Faculty Scholarship

The article discusses Negron and the circuit split on the issue of whether to value non-assignable lottery payments in a decedent's estate by means of the actuarial tables or whether that value needs to be discounted for non-marketability.

A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison

UF Law Faculty Publications

Select financial institutions and members of the Bar have seized upon the presence of the limited exemption from the generation skipping transfer tax provided under the Internal Revenue Code to promote so-called dynasty trusts as a means whereby individuals can build dynastic wealth for a family forever free from transfer taxes. To realize such benefits, state law that does not impose the Rule Against Perpetuities must govern the trust. The promise of dynastic wealth is unlikely to be realized due to several factors. Administrative and tax costs are likely to reduce the yield on such trusts to a level where …

The Irs's Flawed Solution To The Controversy Over Deductible Claims Against The Estate And The Necessity For A Date-Of-Death Standard, 42 J. Marshall L. Rev. 789 (2009), Lisa K. Johnson

UIC Law Review

No abstract provided.

The Estate And Gift Tax Implications Of Self-Settled Domestic Asset Protection Trusts: Can You Really Have Your Cake And Eat It Too?, Phyllis C. Taite

Faculty Articles

Self-settled asset protection trusts are wealth preservation trusts coupled with the spendthrift provisions. This type of trust permits the settler to have the benefit of treating the trust as a separate entity thereby protecting his assets from creditors while maintaining a pecuniary interest, as well as some level of control over what ultimately happens to the trust property. By providing asset protection from potential creditors while still having the ability to maintain a beneficial interest in the trust, the settler can essentially “have his cake and eat it too.” The typical domestic self-settled asset protection trust may not be treated …

A Comment On Unification, Grayson M.P. Mccouch

UF Law Faculty Publications

This Article discusses recent proposals aimed at unifying the law of wills and nonprobate transfers. The author notes that default rules of construction present the strongest case for unification, but contends that distinctions between wills and nonprobate transfers remain important in the areas of formalities and restrictions affecting third-party rights. The author concludes that the policy goal should be to allow wills and nonprobate transfers to operate smoothly as complementary methods of deathtime wealth transmission.

Valuation Discounting Techniques: Terms Gone Awry, Wendy G. Gerzog

All Faculty Scholarship

Fair market value is defined in the section 2031 Regulations. For its validity, that definition of fair market value relies on the normal definitions of its significant terms: a seller is someone who is seeking the highest price for her product and a buyer is someone who wants to obtain the lowest price for his purchase. It is only that tension that creates the realistic, and fair, market value of that asset. Indeed, without that conflict, the definition is comprised of hollow words.

In the context of family limited partnerships, terms have been misused. By utilizing the limited partnership shell, …

From The Greedy To The Needy, Wendy G. Gerzog

All Faculty Scholarship

In some instances when the taxpayer makes a charitable donation, the loss of revenue to the government, and the corresponding gain to the taxpayer, far exceeds the benefit to the charity. Some of these losses may be generated by government sanctioned complex transactions and even government created devices. This article proposes a new way to examine "quid pro quo" charitable gifts that reflects the rationale for the charitable deduction.The article analyzes various charitable donations in terms of the dollars gained by the taxpayer, the dollars lost by the government, and the dollars received by the charity. After considering a sliding …

Reply Brief For Petitioner, Knight V. Commissioner Of Internal Revenue, No. 06-1286 (U.S. Nov. 2, 2007), Cornelia T. Pillard, Peter J. Rubin

U.S. Supreme Court Briefs

No abstract provided.

Brief For Petitioner, Knight V. Commissioner Of Internal Revenue, No. 06-1286 (U.S. Aug. 23, 2007), Cornelia T. Pillard, Peter J. Rubin

U.S. Supreme Court Briefs

No abstract provided.

Charitable Ira Gifts In 2007, Christopher R. Hoyt

Faculty Works

No abstract provided.

Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Law Faculty Scholarly Articles

On January 5,2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations," was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law, trust law, …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Family Limited Partnerships: The Beat Goes On, Walter D. Schwidetzky

ExpressO

Family limited partnerships ("FLP's") are commonly used for estate planning and estate tax savings. They have come under attack by the IRS. Of late, courts have often held that the assets of an FLP are included in the decedent's estate under section 2036 of the Internal Revenue Code. The article discusses a number of recent, highly important cases in this area and makes a proposal for reform.

Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur

Publications

The 2006 Colorado General Assembly passed legislation adopting a 1000-year limitation applicable to interests in trust, practically eliminating the Rule Against Perpetuities ("RAP"). This article discusses the legislation's impact on the RAP in trust and non-trust situations.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

When Gift Planning Goes Awry, Thomas Simmons

Faculty Publications

Advisors to gift recipients need to be aware of the possibility of gifts with attached transferee liability.

Estate Tax Repeal And The Budget Process, Karen C. Burke, Grayson M.P. Mccouch

University of San Diego Law and Economics Research Paper Series

This article examines the Bush Administration’s proposal, as part of its proposed fiscal year 2005 budget, to extend permanently the repeal of the federal estate tax. The article considers the budgetary impact of permanent estate tax repeal and discusses procedural impediments to use of the reconciliation process for permanent tax cuts. The article also notes the possibility of a durable compromise solution involving retention of the estate tax with lower rates and a higher exemption.

Practical Planning Ideas For Distibutions From Iras And Qualified Plans, 37 J. Marshall L. Rev. 807 (2004), Steven R. Lifson

UIC Law Review

No abstract provided.

The 2003 Revised Uniform Estate Tax Apportionment Act, Douglas A. Kahn

Articles

Editors' Synopsis: This Article describes the significant sections of the 2003 Uniform Estate Tax Apportionment Act (the "2003 Uniform Act'). The Article explains the purpose and operation of the 2003 Uniform Act's various sections and notes some of the differences between the 2003 Uniform Act and its prior version.

Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

Family partnerships have been become increasingly popular as a means of avoiding estate and gift taxes. As other estate freezing techniques have been closed off by statutory anti-abuse rules, estate planners have increasingly resorted to partnerships as a vehicle for transferring assets within a family at deeply discounted values. Discounts ranging from one-third to over one-half of the value of the underlying assets are routinely claimed, and often allowed, based on lack of marketability and lack of control, even where these disabilities have no lasting or ascertainable economic effect. Nevertheless, the use of family partnerships to suppress value for transfer …

Abandoning Principles: Qualified Tuition Programs And Wealth Transfer Taxation Doctrine, Wayne M. Gazur

Publications

In 1996 Congress gave its imprimatur to a modest qualified tuition program provision. Over the course of the next five years the provision was expanded, providing additional wealth transfer taxation and income taxation benefits. This essay proposes that unless limited, such benefits are inconsistent with established taxation principles and also have the potential to undermine the integrity of the wealth transfer tax structure and the progressive nature of the income tax.

Shape Up Or Ship Out: Accountability To Third Parties For Patent Ambiguities In Testamentary Documents, Angela M. Vallario

All Faculty Scholarship

The attorney's preparation of a testamentary document (hereinafter sometimes referred to as a will or revocable trust) should clearly and accurately reflect the client's last wishes. Although these testamentary documents should reflect the client's intent, they often fall short of accomplishing that goal. There are numerous examples of will and trust construction cases that exhaust tremendous resources in an effort to ascertain the client's wishes or intent. Many of these cases involve the construction of patent and/or latent ambiguities which should have been resolved by appropriate drafting. This article's scope is limited to patent ambiguities caused by the attorney's negligence …

Investing Trust Assets: Prudence Redefined, Mark R. Gillett

Faculty Articles

No abstract provided.

Level Five Philanthropy: Designing A Plan For Strategic, Effective, Efficient Giving, James Edward Harris

University of Arkansas at Little Rock Law Review

No abstract provided.

Spousal Election: Suggested Equitable Reform For The Division Of Property At Death, Angela M. Vallario

All Faculty Scholarship

Testators have traditionally enjoyed immense discretion in directing the disposition of their wealth upon death; however, when a spouse survives the testator, public policy dictates a limitation on the testator's ability to dispose of property. American jurisdictions impose this limitation through the elective share in common law states and by the nature of property ownership in community property states. Ideally, this limitation should ensure equitable financial protection for the surviving spouse and protect his or her interest in assets that were accumulated with the decedent, yet the current elective share methods fall short of these goals.

Estate Planning Malpractice: Is Strict Privity Here To Stay?, Angela M. Vallario

All Faculty Scholarship

Under Maryland case law, a plaintiff in an estate planning malpractice action must be in strict privity with the attorney who drafted the will. To date, Maryland has not extended the third-party beneficiary exception to the estate planning arena.

Legatees specifically identified in a will by name or class are generally precluded from bringing a cause of action against the attorney for the attorney's alleged negligence, because in Maryland in order to recover for legal malpractice, a plaintiff must:show: "(1) the attorney's employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that …

Sample Forms, In Estate Planning Law And Taxation, 4th Ed., Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sample estate planning forms.