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Articles 31 - 55 of 55
Full-Text Articles in Estates and Trusts
Lawyers' Ethical Dilemmas: A "Normal" Relationship When Representing Demented Clients And Their Families, Robert B. Fleming, Rebecca C. Morgan
Lawyers' Ethical Dilemmas: A "Normal" Relationship When Representing Demented Clients And Their Families, Robert B. Fleming, Rebecca C. Morgan
Georgia Law Review
The Anglo-American legal system, based as it is on an adversary system of justice, assumes that two or more legal combatants, capably arguing their respective positions, can best ensure that the correct answer will become apparent to a neutral decisionmaker, the judge. The system assumes competent parties with adept legal representation, presenting their respective sides of the case with little involvement by the judge. This ideal can be difficult, even impossible, to reach when one party is demented.' Indeed, in such a case the problem with this traditional legal model is even deeper-there may be no clear adversarial distinction between …
Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control?, Verner F. Chaffin
Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control?, Verner F. Chaffin
Scholarly Works
Georgia should resist the urge to join the parade of states that have overturned the Rule Against Perpetuities. We do not neet the dynasty trust in Georgia. The repeal of perpetuities laws ignores the reasons for the Rule Against Perpetuities and uncritically assumes that preserving family wealth in perpetuity is a desirable social goal. The Rule is still needed to prevent persons long removed from the current scene from tying up wealth without restriction and from unduly influencing the behavior of those living in the present. For background purposes, this Article reviews the legislative history of Georgia's Rule Against Perpetuities …
Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control, Verner F. Chaffin
Georgia's Proposed Dynasty Trust: Giving The Dead Too Much Control, Verner F. Chaffin
Georgia Law Review
Since 1997, a number of states have unwisely enacted or introduced perpetuities repeal legislation. The principal reason for this movement is to enable wealthy individuals to create perpetual dynasty trusts that avoid the generation-skipping transfer tax system. Georgia should resist the urge to join the states that have overturned the Rule Against Perpetuities. The repeal of perpetuities laws ignores the well-founded reasons for the Rule, and uncritically assumes that preserving family wealth in perpetuity is a desirable social goal. The current system, under USRAP, provides a fair compromise between the desires of the present generation and future ones without restricting …
Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang
Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang
LLM Theses and Essays
Bankruptcy is a judicial process purporting to regulate and adjust the financial relationships between debtors and creditors which come into a deadlock. In the modern United States, bankruptcy has become a concept pervading each corner of the social and economic lives. It touches mass tort victims, large corporations, small family business, government institutions, and even normal individuals. The appearance of the modern bankruptcy law of the United States is signaled by the enactment of the Bankruptcy Reform Act in 1978 which, together with later amendments, constitute the current Bankruptcy Code of the United States; but also help them strategically restructure …
Estate Creditors, The Constitution, And The Uniform Probate Code, Sarajane Love
Estate Creditors, The Constitution, And The Uniform Probate Code, Sarajane Love
Scholarly Works
The United States Supreme Court's decision in Tulsa Professional Collection Services, Inc. v. Pope caused the usually staid legal enclave of estate administration to sit alert. The Court declared unconstitutional an Oklahoma statute that barred creditors of decedents from filing claims against the decedents' estates two months after published notice of the commencement of probate proceedings. The statute violated the due process rights of known and reasonably ascertainable creditors because it did not require a better form of notice to them. In failing to require actual notice to known creditors, the statute was not drastically atypical of other statutes regulating …
The Authority, Powers, And Duties And Compensation Of The Personal Representative (Adminstrator & Executor): A Comparison Of The Uniform Probate Code And The Georgia Probate Court In This And Procedural Matters, Udo W. Herberth
LLM Theses and Essays
This LL.M. thesis provides a comparative analysis of the authority, powers, duties, and compensation of the personal representative under two distinct American probate systems: the Uniform Probate Code and the Georgia Probate Code. The work traces the historical development of probate law from the English ecclesiastical courts through the Model Probate Code and the adoption of the UPC in 1969, and situates the Georgia Code within its tradition of court-supervised administration dating to the Act of 1784. Key topics include the procedural innovations of the UPC, including informal probate, summary procedures for small estates, and supervised administration, versus Georgia's more …
Ethical Considerations In Medicaid Estate Planning: An Analysis Of The Aba Model Rules Of Professional Conduct, Eleanor Crosby Lanier, Ira M. Leff
Ethical Considerations In Medicaid Estate Planning: An Analysis Of The Aba Model Rules Of Professional Conduct, Eleanor Crosby Lanier, Ira M. Leff
Scholarly Works
The purpose of this article is to provide a starting point for discussion of ethical issues related to the practice of Medicaid estate planning. The authors explore the history of attorney involvement in planning and financing long-term care. They also analyze how the ABA Model Rules of Professional Conduct address the ethical dilemmas that arise in practice, using a case study to illustrate some of these issues. The individual authors' perspectives on this practice differ with respect to certain issues. One is a former Legal Services lawyer, and the other has a private practice which focuses on Medicaid estate planning.
Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson
Broken Promises Revisited: The Window Of Vulnerability For Surviving Spouses Under Erisa, Camilla E. Watson
Scholarly Works
While there are pervasive problems with the current ERISA legislation, this Article will focus only on survivor benefits and will concentrate in particular on the short-term marriage provision. This Article will maintain that facial neutrality notwithstanding, the short-term marriage provision is discriminatory in effect, grounded in dubious logic, and unsupportable from a historical perspective. In order to demonstrate this, this Article will delve thoroughly into the historical development of ERISA, with particular emphasis on the survivor benefit provisions. The depth to which this Article plumbs the general development of ERISA is intended to demonstrate the weak historical foundation on which …
Cable Traffic And The First Amendment Must-Carry Under A Diversity Approach And Antitrust As Possible Alternative, Bruno Vandermeulen
Cable Traffic And The First Amendment Must-Carry Under A Diversity Approach And Antitrust As Possible Alternative, Bruno Vandermeulen
LLM Theses and Essays
Recent technological progress in the field of telecommunications has greatly changed the competitive structure between broadcasters, cable operators, and telephone companies. The legal and economic environment for these media participants has shifted, and new problems have arisen. One major problem is the enhanced threat of concentration of media corporations, as corporate bigness becomes desirable and the number of diversified owners of media outlets continues to decrease. This paper analyzes broadcasting regulations and subsequent case law to show the concern by the legislature and regulatory agencies to preserve diversity in opinion and media-ownership through emphasis on “localism” and a “marketplace of …
Transfer -On-Death Securities Registration: A New Title Form, Richard V. Wellman
Transfer -On-Death Securities Registration: A New Title Form, Richard V. Wellman
Scholarly Works
This article is inspired by a new form for registering corporate shares that is now available to certain stockholders of Southwestern Bell Corporation (SBC). Designed to replace stock registrations that make two or more persons appear to be co-owners, the new form, referred to herein as a transfer-on-death (TOD) registration, enables a sole owner to register a designation of a death beneficiary in whose favor a transfer on death of the registered shares may occur outside the probate process. The new registration form extends a key provision of the Uniform Probate Code (U.P.C.) that was designed to encourage development of …
The Rule Against Perpetuities As Applied To Georgia Wills And Trusts: A Survey And Suggestions For Reform, Verner F. Chaffin
The Rule Against Perpetuities As Applied To Georgia Wills And Trusts: A Survey And Suggestions For Reform, Verner F. Chaffin
Scholarly Works
The prevalent criticism seems to be that the Rule Against Perpetuities, as presently applied, does not further the best interests of society and therefore should be changed to make it work better. To determine how well the Rule is operating, a critical examination will be made of Georgia statutory law and decisions involving its application to class gifts, private trusts, charitable gifts, commercial transactions, powers of appointment, and to various types of future interests including reverters, rights of entry, and executory interests. This Article will also explore techniques for avoiding the lethal effect of the Rule through draftsmanship, judicial construction, …
Dispensing With Administration, Estates Of Absentees, Simultaneous Death, Appointment And Qualification Of Domestic And Foreign Personal Representatives: A Critique Of Statutory Requirements, Verner F. Chaffin
Scholarly Works
This Article will survey certain aspects of decedent's estate administration, including the situations where administration may be avoided, the administration of estates of absentees and missing persons, and the problems involved where simultaneous death occurs. The various types of personal representatives, their appointment and qualification, and the distinctions between foreign and local personal representatives will be considered. Georgia law will be given a critical appraisal, its shortcomings will be delineated, and suggestions will be made for improvement in areas where the need is greatest.
Imperfect Gifts As Declarations Of Trust: An Unapologetic Anomaly, Sarajane N. Love
Imperfect Gifts As Declarations Of Trust: An Unapologetic Anomaly, Sarajane N. Love
Scholarly Works
This article will address circumstances under which 'gifts' of personalty, made without legal supervision by lay people, should be construed as declarations of trust in order to carry out the wishes of the property owner. The declaration of trust doctrine may salvage some attempted gift transactions because the property which is the subject of the trust need not be delivered to the trust beneficiary.
The Probate And Establishment Of Domestic And Foreign Wills: An Analysis Of Statutory Requirements, Verner F. Chaffin, Donna G. Barwick
The Probate And Establishment Of Domestic And Foreign Wills: An Analysis Of Statutory Requirements, Verner F. Chaffin, Donna G. Barwick
Scholarly Works
In our mobile society, ownership of property in Georgia by nonresidents is increasing. Few, if any, nonresidents prepare separate wills to dispose of their property in a foreign state or make sure that the one will adheres to the formalities of every state in which they own property. Thus, it is reasonable to expect that the problems of probate of foreign wills will increase in future years. Likewise, Georgia testators increasingly desire to name family members or friends domiciled in other states to serve in a fiduciary capacity under their wills. This Article will describe contemporary statutory patterns which deal …
A Reappraisal Of The Wealth Transmission Process: The Surviving Spouse, Year's Support And Intestate Succession, Verner F. Chaffin
A Reappraisal Of The Wealth Transmission Process: The Surviving Spouse, Year's Support And Intestate Succession, Verner F. Chaffin
Scholarly Works
This Article will attempt to describe and evalute certain aspects of the wealth transmission process. Attention will be given to the surviving spouse's intestate share and its size, the spouse's protection against disinheritance through forced share legislation or otherwise, and, more significantly, whether such a drastic legislative intrusion on freedom of testation is really needed. The adequacy of the support allowance for the decedent's family during the period of administration will also be explored. Attention will also be focused on selected provisions of the intestacy scheme, such as the order of succession, the doctrine of advancements, whether distribution is per …
Multiple Party Accounts: Georgia Law Compared With The Uniform Probate Code, Richard V. Wellman, J. Foster Clark
Multiple Party Accounts: Georgia Law Compared With The Uniform Probate Code, Richard V. Wellman, J. Foster Clark
Scholarly Works
Joint accounts established in financial institutions have become increasingly popular as inexpensive and convenient means of nontestamentary disposition of wealth. Varied and often unsuitable legal theories which have been relied upon to validate such attempts have, however, resulted in inconsistent case results in what should otherwise be a fairly simple area. In their article, Professor Wellman and Mr. Clark explain this disparate treatment and demonstrate the desirability of Article VI, Part 1 of the Uniform Probate Code as a statutory solution for the problems presented.
Descendible Future Interests In Georiga: The Effect Of The Preference For Early Vesting, Verner F. Chaffin
Descendible Future Interests In Georiga: The Effect Of The Preference For Early Vesting, Verner F. Chaffin
Scholarly Works
In past issues of the Review Professor Chaffin has illuminated many areas of Trust and Estates Law. In this Article he treats the inscrutable area of descendible future interests. Future interests which do not terminate at death obviously result in nonpossessory property passing through the estates of their holders. This Article first shows the unhappy consequences of such passage of property. It then points out not only that most draftsmen and testators are unaware of the undesirable consequences of creating descendible future interests, but also that many such interests exist as a result of Georgia's constructional preference for early vesting …
An Update On Federal Estate And Gift Taxation: Recent Decisions And Revenue Rulings, Verner F. Chaffin
An Update On Federal Estate And Gift Taxation: Recent Decisions And Revenue Rulings, Verner F. Chaffin
Scholarly Works
"Tax law is constantly evolving, never static, and always in the process of becoming something other than it was." In the following survey, Professor Chaffin brings us abreast of the latest changes in the field of estate and gift tax and gives us insight into the future direction of the law in this area.
The Time Gap In Wills: Shifting Assets And Shrinking Estates--Obsolescence And Testamentary Planning In Georgia, Verner F. Chaffin
The Time Gap In Wills: Shifting Assets And Shrinking Estates--Obsolescence And Testamentary Planning In Georgia, Verner F. Chaffin
Scholarly Works
If estates were static, property inalienable and assets immutable, this article would serve as nothing more than an academic exercise. However, estates grow and shrink, and the assets comprising an estate shift from one form of wealth to another. Obviously, such changes in the composition of property affected by a will can materially disrupt the testamentary plan of the decedent. In his Article Professor Chaffin investigates the effects of changes in property passing under a will and the legislative and judicial response in Georgia to the problems posed by such changes.
The Time In Gap In Wills: Problems Under Georgia's Lapse Statutes, Verner F. Chaffin
The Time In Gap In Wills: Problems Under Georgia's Lapse Statutes, Verner F. Chaffin
Scholarly Works
The makeup of the class of beneficiaries and the composition of the property affected by a will may be substantially altered by events occurring after the execution of the will by the testator. Naturally, such alterations may materially disrupt the testamentary plan. Such changes in beneficiaries typically involve the application of the state's so-called lapse statutes. In his Article, Professor Chaffin explores the Georgia statutory scheme and the problems which have arisen thereunder. In a subsequent article to appear in this volume, he will investigate the effects of ademption and abatement of property passing under the will.
Improving Georgia's Probate Code, Verner F. Chaffin
Improving Georgia's Probate Code, Verner F. Chaffin
Scholarly Works
No one would deny that our laws should provide an efficient and rational system for the transmission of wealth, whether by intestacy or under the terms of a will. The purpose of this article is to suggest several specific reforms and to attempt to explain why they should be made. No effort is made to enumerate all the troublesome areas. The changes recommended are not definitive or comprehensive, but are simply illustrative of matters that a complete study would bring to light. Total agreement with the writer's conclusions would be undesirable and certainly unexpected.
The Clifford Shadow Over The Federal Estate Tax, Richard B. Stephens
The Clifford Shadow Over The Federal Estate Tax, Richard B. Stephens
Georgia Law Review
THE federal estate tax is imposed on "the transfer of the taxable estate" of the decedent. Obviously, it applies to property, owned by the decedent at death, which he can transmit to others by will or which will pass according to the laws of intestate succession. To the initiated, it is equally clear that the tax applies as well to many types of property interests not owned by the decedent at death but, by express statutory prescription, required to be treated as if so owned. The question raised here is: how far may the Treasury and the courts go in …
Improving Georgia's Probate Code, Verner F. Chaffin
Improving Georgia's Probate Code, Verner F. Chaffin
Georgia Law Review
NO one would deny that our laws should provide an efficient and rational system for the transmission of wealth, whether by intestacy or under the terms of a will. It is important, therefore, that our statutes and judicial decisions periodically be subjected to a critical analysis to determine how well they continue to serve their purpose. Much can be done to improve Georgia's probate code in specific areas without making drastic or revolutionary changes. A few of our statutes are archaic reminders of another era and have no place in modem law; these should be repealed. Other statutes should be …
An Unprincipled Decision On A Will, Alan Watson
An Unprincipled Decision On A Will, Alan Watson
Scholarly Works
In this article Professor Alan Watson reviews the decision of Alfenus from Ancient Rome (D.28.5.45 Alfenus 5 dig).
Sales Transactions And Income In Respect Of A Decedent, G. S. T.
Sales Transactions And Income In Respect Of A Decedent, G. S. T.
Georgia Law Review
An important' tax question arises when income is received by a decedent's successor in interest as a result of a sale transaction which had its origins in the decedent's lifetime activities but which was not consummated until after his death. The answer to be sought is whether or not the proceeds of the sale constitute income in respect of a decedent within the meaning of section 6913 of the Internal Revenue Code of 1954. If so, the successor in interest will include in gross income the same amount as the decedent would have included had he completed the sale and …