Estates and Trusts Commons^™

The Fiduciary Responsibilities Of A Surviving Partner Acting As Executor Of The Deceased Partner's Estate, Sandra L. Randleman

Vanderbilt Law Review

This Note examines the nature of the fiduciary duty in the situation in which an executor/surviving partner must decide whether to consent to a continuation of the partnership business after dissolution and in the situation in which the surviving partner has an option to purchase the deceased partner's interest in the partnership under the terms of a partnership agreement. After separately considering the nature of the fiduciary duties of an executor and a surviving partner, the Note discusses the degree to which the fiduciary loyalty that an executor/surviving partner owes the deceased partner's estate governs his decision on whether to …

Federal Estate And Gift Taxation Of Joint Interests: Planning And Policy Perspectives, Hugh D. Brown

Vanderbilt Law Review

This Note will first provide a brief background outlining the incidents of joint tenancy which make it an attractive form of co-ownership under state law. This background section also will place joint ownership in the overall perspective of federal estate and gift taxation by pointing out the impossibility of achieving certain basic federal estate planning objectives in an estate composed primarily of jointly held assets. The Note will then analyze the specific provisions of the Internal Revenue Code governing federal estate and gift taxation of joint interests. This analysis will: first, focus on some of the legal problems generated by …

Current Problems Facing The Executor Taking The Section 2053 Estate Tax Deduction, Jay D. Christiansen

Vanderbilt Law Review

Section 2053 of the Internal Revenue Code allows the executor to deduct from the gross estate amounts attributable to expenses, indebtedness, and taxes. This Note will examine problems currently confronting an executor who is attempting to utilize the 2053 deduction. The first problem examined in this Note is the conflict in the federal courts of appeals regarding the deductibility of expenses incurred as a result of a sale of decedent's property. The statute,cases, and regulations in this area will be examined, and a suggested approach for the executor encountering this problem will be provided. The second problem considered is the …

Foreign Accumulation Trusts And The Tax Reform Act Of 1976, David H. Simmons

Vanderbilt Journal of Transnational Law

If the foreign trust is not a grantor trust under the Grantor Trust Provisions (sections 671-679), then the new Act creates several new disparities in the tax treatment between it and a corresponding domestic accumulation trust. Domestic accumulation trusts are no longer subjected to a capital gains throw back, while capital gains of foreign trusts are included in DNI, subject to throw back, and then taxed as ordinary income to the beneficiary because of the abolition of the character rules upon accumulation distribution. Foreign trusts are subjected to throw back of accumulation distributions even though the accumulation was during the …

The Educational Benefit Trust:Loophole Or Sinkhole?, John L. Van Cleave

Vanderbilt Law Review

This Note indicates clearly that the likelihood of the court's upholding the tax advantages claimed to be available under EBTs is far from certain. More than an "element of risk" is involved in recommending that a client adopt an educational benefit trust, but does this require an attorney to avoid such arrangements? On the other hand, does an attorney owe an obligation to the legal process and to society to challenge the Service whenever it, in his opinion,has taken a position more favorable to the Treasury than intended by Congress in enacting the legislation underlying the matter in controversy? While …

Book Review, Neill H. Alford, Jr.

Vanderbilt Law Review

For the decade 1960-1970, any available prize for the most stimulating product of interest to estate planners by an individual writer certainly should go to Dean Thomas L. Shaffer' for "Death, Property, and Lawyers." This is an imaginative and stimulating book. A practicing lawyer who gives close attention to Dean Shaffer's work should be aided in evaluating his relationships with his estate planning clients. Even if this lawyer cannot be brought to a detailed evaluation, he at least will be brought to the threshold of introspection. Dean Shaffer does not attempt to unravel the whole "psychological story" in estate planning; …

Internationally Uniform Probate Law--A Method For Improving Administration Of Multinational Estates, John G. Webb, Iii

Vanderbilt Journal of Transnational Law

The need to coordinate succession laws of different nations was recognized as early as 1893 at the first Hague Conference where attempts were begun to coordinate the laws of succession on death through multilateral conventions. Notwithstanding so early an effort, however, the administration of multinational estates has remained plagued by diversity of national laws governing succession on death. The resulting confusion and inefficiency of administration has often frustrated the testamentary intentions of decedents of many nationalities. While no viable uniformity has been attained among nations, the need for consistency increases. Half a million United States civilian citizens live abroad, and …

Income Tax Deductions For Estate Planning Fees, Stephen E. Gilhuley

Vanderbilt Law Review

The need to engage the services of a lawyer may arise in a variety of situations, and the possibility of deducting the fees for a lawyer's services from the client's personal taxable income will ultimately depend on which one of several competing policies of the tax law is properly applicable under the particular circumstances. Taxpayers and their attorneys should be aware of the deductibility of expenses incurred for legal services rendered in connection with the planning of the taxpayer's estate. Such estate planning services include the drafting of a will, the arrangement of inter vivos and testamentary gifts, the creation …

Elliott E. Cheatham - Gentleman, Richard R. Powell

Vanderbilt Law Review

It was suggested to the writer that he write about Elliott E. Cheatham as a colleague in the field of legal education. This is but one aspect of his special preeminence, but any aspect of this man finds its ultimate foundation in his underlying and pervasive qualities as a gentleman. Kindly in the face of student stupidity, gentle in persuading his obstinate colleagues, loving in his more personal relations, the man embodies the best that can be connoted by the phrase "Southern gentleman."

Elliott E. Cheatham, Erwin N. Griswold

Vanderbilt Law Review

After a full career on the faculty of the Columbia Law School,Professor Cheatham has had a new career as a member of the faculty of the Vanderbilt University Law School. During this period, his writing has never ceased, and it is always lively and original.Elliott Cheatham has been one of the great legal scholars of our time. He has also been one of the great persons in law teaching. He has been a great inspiration not only to his students, but also to the law teachers who have tried to follow in his footsteps.

The Unitrust In Estate Planning: A Partial Panacea, Louis F. Comus Jr.

Vanderbilt Law Review

This note explores applications of the unitrust in estate tax planning.

Part II presents general characteristics of the unitrust, including its advantages and limitations.

Part III discusses the use of the unitrust as a marital deduction trust, including prescription for administration of the marital deduction unitrust in various situations involving different sizes of estates.

Part IV presents income tax considerations involved in the use of the unitrust, under subchapter J of the Internal Revenue Code. Finally, Part IV suggests amendments to the basic unitrust form for maximizing its effectiveness in estate planning.

Book Reviews, Herman L. Trautman, W. Harold Bigham

Vanderbilt Law Review

THE BEST OF TRUSTS AND ESTATES-ESTATE PLANNING

There are one hundred and four articles arranged in eight chapters entitled, "Estate Planning-A Panoramic View," "Using the Marital Deduction, "Income Tax Planning, " "Making the Most of Gifts,""Minimizing Administration Problems," "How to Handle Business Interests," "Arranging Life Insurance," and "Drafting Wills and Trusts." The citation and date of the original publication of each article is stated, and in many instances there is an addendum by the author which brings the article up to the date of the book. In addition there are excellent introductory commentaries by the editors at the beginning of …

Class Gifts Of Future Interests: When Is Survival Required?, Herman L. Trautman

Vanderbilt Law Review

Because of recent significant developments, this article will under-take to deal with the requirement of survival in class gifts of future interests both with respect to the responsibility of a lawyer who plans an estate and with the problem confronting the courts in the many cases where either holographic wills are allowed or lawyers fail to discharge their professional responsibility concerning this litigious issue. By way of introduction, it will first stress the importance of a proper training for professional responsibility in this area. It will then attempt to provide a proper perspective for the courts to deal with the …

Restitution In England, R. H. Maudsley

Vanderbilt Law Review

So long as a constructive trust will be imposed whenever it is necessary to prevent unjust enrichment, the terminological question is unimportant. If a situation requires a trustee's duties to be imposed upon a constructive trustee, the English court will do that. It may be that this will be a trust which the "beneficiary" can terminate by demanding the property and in that situation the two views of the constructive trust coalesce. If the problem is one of tracing it into a mixed fund by claiming a proportionate share of the fund or of the property purchased with it, then …

The Use Of Business Property As Short-Term Trust Corpus, Robert Doty

Vanderbilt Law Review

A progressive income tax structure encourages the taxpayer with income above his consumption level to attempt to shift income to other members of his family group where it would be taxed at lower rates. The income which the taxpayer desires to shift may be in the form of compensation for services rendered by the taxpayer or of income from income-producing property owned by him...This article seeks to explore the extent to which the benefits of the short-term trust can be secured for this latter class of persons by utilizing business assets as trust corpus in the following manner: (1) by …

Legislation, Law Review Staff

Vanderbilt Law Review

Estate Tax--Marital Deduction--Compliance With Revenue Procedure 64-19

In those cases where an executor or trustee is directed by the governing instrument to satisfy a pecuniary bequest or transfer in trust by a distribution of the property in kind,' with assets at values as finally determined for federal estate tax purposes, there is the possibility that the surviving spouse will receive property the fair market value of which at the time of distribution is less than the amount of the marital deduction.

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Voting Rights--Residence Requirements for Voting in Presidential Elections

It seems safe to conclude that the choosing of presidential …

Decedents' Estates, Trusts And Future Interests -- 1963 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

Three interesting cases represent significant developments in the laws concerning the distribution of amounts received by the administrator in wrongful death actions, two' of which arose under the Tennessee wrongful death statute and the other arising under the Federal Employers' Liability Act. The two cases arising under the Tennessee statute were problems of somewhat first impression,reasoned upon analogy, and the case arising under the federal statute resulted in the Tennessee Supreme Court overruling its prior decision.

Decedents' Estates, Trusts And Future Interests -- 1962 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

I. DECEDENTS" ESTATES

A. Intestate Succession-Release of an Expectancy B. Wills C. Fiduciary Administration and Estate Planning

II. TRUSTS

A. Self-dealing-Purchase by Trustees of One Beneficiary's Interest

III. FUTURE INTERESTS

A. Alternative Gifts B. Class Gifts As in the past, the subject matter will be discussed under the headings indicated above. The developments of the year consist of court decisions only, as the Tennessee legislature was not in general session.

Perpetuities, Restraints On Alienability,And The Duration Of Trusts, Ralph A. Newman

Vanderbilt Law Review

There is no doubt that we must have some fairly well-defined standard for determining when a restraint on alienation lasts too long. There is need for only one rule directed to the ultimate objective sought the establishment of a limitation upon the period during which alienability may be postponed. This limitation of the period of permissible duration of the state of inalienability must apply to all interests of any kind, present or future, vested or contingent, legal or equitable, absolute or in trust. The test of suspension should be the practical possibility, as well as the legal possibility, of alienation. …

Decedents' Estates, Trusts And Future Interests -- 1961 Tennessee Survey (Ii), Herman L. Trautman

Vanderbilt Law Review

The developments in these areas of Tennessee law during the first part of the year 1961 have been discussed heretofore in a recently published article.' In order to accommodate the transition from a fiscal year to a calendar coverage, however, this article will be limited to those appellate court opinions published after May 31 and not later than December 31,1961. During this period the General Assembly of Tennessee was not in session.

Tax Planning Of The Administration Of An Estate, Sherwin P. Simmons

Vanderbilt Law Review

In this article, the author points out that the tax hazards and tax saving opportunities presented in the administration of an estate cannot be disregarded. With this in mind, he discusses in detail the filing of a decedents final income tax return, the various elections and alternatives available to the executor in the tax planning of the estate, the tax consequences flowing from the executors management of the estate, and the problems encountered in terminating the estate and paying the tax.

Decedents' Estates, Trusts And Future Interests -- 1961 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter will be discussed under the three headings indicated above. The developments of the year' include court decisions and relevant new legislation enacted by the Eighty-second General Assembly of the State of Tennessee. Perhaps the most significant development of probate law in Tennessee during the period was the enactment of the Uniform Testamentary Additions to Trusts Act, referred to generally as the "pour-over" statute. Very likely this statute will have a substantial and dramatic impact upon (1) the arrangements of decedents' estates, and (2). the future role that the executor and the lawyer will have in the settlement …

Book Reviews, Winthrop R. Munyan, John W. Fager, Walter P. Armstrong Jr., Jerry L. Moore

Vanderbilt Law Review

Taxation of Foreign Income By Boris I. Bittker and Lawrence F. Ebb. Stanford: Stanford University, 1960. Pp. xii, 580.

reviewer: Winthrop R. Munyan

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The Planning and Administration of Estates Edited by Rene A. Wormser. New York: Practising Law Institute, 1961. Pp. 324.

reviewer: John W. Fager

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How to Evaluate and Settle Personal Injury Cases By Allen Bush Indianapolis: The Bobbs-Merrill Company, Inc., 1959. Pp. x,148.

reviewer: Walter P. Armstrong, Jr.

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The Tax Practice Deskbook By Harrop A. Freeman and Norman D. Freeman Boston and Toronto: Little, Brown and Co., 1960. Pp. vii, 581. $17.50.

reviewer: Jerry L. …

Decedents' Estates, Trusts And Future Interests -- 1960 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter will be discussed under the three principal headings: Decedents' Estates, Trusts, and Future Interests. Since the legislature has not been in session during the year' covered by this survey, the developments in the subject areas of the law consist entirely of appellate court litigation. Most of the cases discussed in the section on Decedents' Estates involve problems of probate administration and procedure; there was only one case involving the substantive right of intestate succession and one case concerning the federal estate tax. The section on Trusts is practically non-existent this year, although one case is mentioned concerning …

Decedents' Estates, Trusts And Future Interests, Herman L. Trautman

Vanderbilt Law Review

The subject matter will be discussed under three headings: "Dece- dents' Estates," "Trusts," and "Future Interests." The section on Decedents' Estates will include developments concerning intestate succession, wills and those problems of fiduciary administration involved in the settlement of decedents' estates; the fiduciary administration problems involving trusts will also be discussed in that section. The developments of the year include court decisions, new legislation, and the work of the Section on Real Property, Probate and Trust Law of the Tennessee Bar Association on proposed legislation.

Humor In Or Of Wills, Elmer M. Million

Vanderbilt Law Review

Wills are of great antiquity. According to Moslem tradition, Adam(the original, as distinguished from the Old) drafted a will which was handed down orally until reduced to writing in the time of Mahomet. Medieval scholars seriously debated whether this will existed. However, "the authenticity of this will has not been established." If written after Adam's eviction from the Garden of Eden for breach of a substantial condition of the tenancy, it would presumably be a testament only, Adam no longer having any interest in land to transmit.

Book Reviews, Ronan E. Degnan, James J. Lenoir (Reviewer), David H. Vernon (Reviewer), David W. Louisell (Reviewer), David Maxwell (Reviewer)

Vanderbilt Law Review

Book Reviews:

Cases and Materials on Evidence, Fourth Edition. By Morgan, Maguide & Weinstein Brooklyn: Foundation Press, 1957. Pp. xxiv,880. $11.00

reviewers: Ronan E. Degnan and David W. Louisell

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Estate Planning and Taxation Two volumes. By William J. Bowe Buffalo: Dennis & Company, Inc., 1957. Vol. I, pp. lvi, 590; Vol. II,pp. viii, 614.

reviewer: James J. Lenoir

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The Sanctity of Life and the Criminal Law By Glanville Williams. New York: Alfred A. Knopf, 1957. Pp. xi, 350. $5.00.

reviewer: David H. Vernon

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Current Legal Problems Edited by G. W. Keeton & G. Schwarzenberger London: Stevens & …

Wills, Trusts And Estates -- 1957 Tennessee Survey, Herman L. Trautman

Vanderbilt Law Review

The subject matter of this article will be presented in four parts entitled Wills, Trusts, Future Interests and Fiduciary Administration. The latter will include the developments of the year concerning both the administration of decedents' estates and the administration of trust estates because to an increasing extent the statutes and decisions are relevant to both kinds of fiduciary administration. Legislative developments concerning probate law are also included under each heading as well as the court decisional developments.

Wills, Trusts And Estates--1956 Tennessee Survey, W. J. Bowe

Vanderbilt Law Review

The Tennessee statute creates a rebuttable presumption that any transfer or conveyance of property to a child shall be treated as an advancement. The above evidence would seem adequate to rebut the presumption but the court went further and stated that, without regard to this evidence, the transfer was not to be so treated since an advancement must be irrevocable and in presentae. Query, if this language may not be misleading and cause confusion in later cases. American case law does not require that an advancement be irrevocable. Thus the proceeds of a life insurance policy, though the decedent retained …

Model Will, With Explanatory Comments, Of The Father Of A Closely-Knit Family Group, Designed To Minimize Family Estate And Income Taxes, William J. Bowe

Vanderbilt Law Review

I, Marital Deduction Sprinkle, of Special Power, Tax haven, being of sound and disposing mind and memory, do hereby make, publish and declare this to be my Last Will and Testament, hereby revoking all wills and codicils heretofore made by me.

Tangible Personal Property

All of my tangible property of every nature and wheresoever situated, except any such property being used by any business in which I may be interested, I give and bequeath to my wife, Mary, outright, if she survives me; if she fails to survive me, I give and bequeath said personal property to those of my …