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Articles 1 - 23 of 23
Full-Text Articles in Estates and Trusts
Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin
Socially Distant Signing: Why Georgia Should Adopt Remote Will Execution In The Post-Covid World, Jessie Daniel Rankin
Georgia Law Review
In the wake of the COVID-19 pandemic, Georgia Governor Brian Kemp and other state governors issued emergency executive orders authorizing the attestation and execution of wills, trusts, and other testamentary documents through the use of audio-video technology. Most states have traditionally required that such testamentary documents be signed in the physical presence of two or more witnesses to be valid. Georgia’s executive order permits these witnesses to instead observe the signing via video-conferencing software, alleviating the requirement that the witnesses be physically present with the testator. This authorization, however, only exists through this executive order and could lapse or be …
Heirs Property In Georgia: Common Issues, Current State Of The Law, And Further Solutions, Caitlin Henderson
Heirs Property In Georgia: Common Issues, Current State Of The Law, And Further Solutions, Caitlin Henderson
Georgia Law Review
In Georgia, real property passes through an intestate estate
in the form of heirs property. Under this system, heirs share
ownership of the property as tenants in common. This form of
ownership poses several obstacles to realizing the land’s full
potential and, in certain circumstances, courts will partition
the property in forced sales or will physically divide the
property among the heirs. Heirs property and its accompanying
problems are particularly common in Georgia due to strict
policies concerning will execution formalities. Georgia and the
U.S. Congress have attempted to cure the problems associated
with heirs property through the adoption of …
Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack
Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack
Georgia Law Review
This Article questions, for the first time, the equitable and policy basis of Slayer Rules, the rules that bar killers from inheriting from those they kill. It shows that killings that involve inheritance usually occur as a result of domestic abuse or severe mental illness, and argues that, because the legal and social service systems offer little help to those trapped in abusive relationships or those disabled by mental illness, it is not justifiable for those systems to deprive the killer of an inheritance when he or she takes the only means of escape available.
Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver
Vesting Title In A Murderer: Where Is The Equity In The Georgia Supreme Court's Interpretation Of The Slayer Statute In Levenson?, Mark A. Silver
Georgia Law Review
The recent Georgia Supreme Court ruling in Levenson v.
Word exposes difficult interpretative and equitable
questions posed by Georgia's slayer statute. The case
began after Debra Post inherited her husband's estate but
was then arrested for his murder. She used her husband's
life insuranceproceeds and the real property she acquired
through the murder to pay two law firms to defend her in
the murder trial before pleading guilty.
The court-appointedadministratorof the estate sued the
law firms for conversion for not returning these illegally
and immorally acquired funds. Under the Georgia slayer
statute, a murderer forfeits the right to serve as …
Implications Of Discovering Unreported Income, Improper Deductions, And Hidden Assets Upon A Taxpayer's Death, Jay A. Soled
Implications Of Discovering Unreported Income, Improper Deductions, And Hidden Assets Upon A Taxpayer's Death, Jay A. Soled
Georgia Law Review
Death commonly opens windows into taxpayers' lives and sheds light on items that were previously kept hidden or tightly guarded. This light sometimes reveals that the decedent failed to report income, took improper deductions, or held undisclosed assets-factors that have historically contributed to the size of the "tax gap," i.e., the difference between what taxpayers owe in taxes and what they actually pay. This Article explores the implications of these postmortem discoveries for executors, who must administer the decedent's estate; estate beneficiaries,who are recipients of the estate's assets; and tax practitioners,who are called upon to lend technical assistance. Beyond describing …
It Takes A Village: Considering The Other Interests At Stake When Extending Inheritance Rights To Posthumously Conceived Children, Morgan K. Wood
It Takes A Village: Considering The Other Interests At Stake When Extending Inheritance Rights To Posthumously Conceived Children, Morgan K. Wood
Georgia Law Review
The advent of assisted reproductive technologies has brought into existence a new class of children: those not conceived until after the death of one biological parent, or posthumously conceived children. Such a child may be born after a parent dies from a terminal illness or is killed in military action. Is the child legally recognized as the child of the deceased parent,and may the child inherit from that parent's estate? Not surprisingly, the law has been slow to evolve to deal with this relatively new concept. Only twelve states to date have enacted statutes specifically addressing posthumously conceived children, so …
Immortal Fame: Publicity Rights, Taxation, And The Power Of Testation, Joshua C. Tate
Immortal Fame: Publicity Rights, Taxation, And The Power Of Testation, Joshua C. Tate
Georgia Law Review
Several states now recognize survivable publicity rights, allowing the heirs of a deceased celebrity to inherit the rights to her image and likeness. Under the default U.S. rule of testamentary freedom, a celebrity could also freely devise such survivable rights to persons of his or her choosing. Nevertheless, some scholars have recently proposed the adoption of state statues under which survivable publicity rights would pass automatically to specified statutory heirs regardless of the celebrity's wishes. This Article concludes that no such interference with testamentary freedom is warranted. There is admittedly some historical precedent for protecting the interests of surviving family …
Foreword: Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen
Foreword: Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen
Georgia Law Review
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, …
Incorporation Choice, Uniformity, And The Reform Of Nonprofit State Law, Garry W. Jenkins
Incorporation Choice, Uniformity, And The Reform Of Nonprofit State Law, Garry W. Jenkins
Georgia Law Review
This Article explores the significance of private lawmaking initiatives in the reform process of nonprofit state law. Specifically, Professor Jenkins considers projects led by the American Bar Association, American Law Institute, and National Conference of Commissioners on Uniform State Laws. He documents and explains how various institutional dynamics, ingrained habits, and other factors unique to the tax-exempt sector, most notably the choices of nonprofit organizations regarding where to incorporate,affect the ways in which nonprofit law is developed. To that end, the Article presents empirical findings revealing that nonprofits are far less likely than for-profit corporations to opt for out-of-state incorporation.This, …
From The Dead Hand To The Living Dead: The Conundrum Of Charitable-Donor Standing, Evelyn Brody
From The Dead Hand To The Living Dead: The Conundrum Of Charitable-Donor Standing, Evelyn Brody
Georgia Law Review
This Article examines the current confused state of the law that applies to the private enforcement of restricted charitable gifts, and describes the first steps toward a tailored legal regime that appears in the American Law Institute's draft project on Principles of the Law of Nonprofit Organizations,for which this author is reporter. That regime addresses not only standing, but also proposals for notification of the attorney general, time limits on private (but not attorney general) enforcement, and a circumscription of appropriate remedies in order to protect the charity. Several of the issues, however, will likely require a legislative solution.
Charities, Endowments, And Donor Intent: The Uniform Prudent Management Of Institutional Funds Act, Susan N. Gary
Charities, Endowments, And Donor Intent: The Uniform Prudent Management Of Institutional Funds Act, Susan N. Gary
Georgia Law Review
American charities manage substantial funds in conjunction with carrying out their charitable purposes, holding some funds for current operating needs and others as endowments. The legal rules on managing and investing those funds have worked well, but are now somewhat out of date, and revisions to these rules will benefit donors, charities, and charitable beneficiaries. Because laws regulating charities come from a variety of sources, including trust law, nonprofit corporation statutes, federal tax laws, and additional state statutes, this Article does not address the full panoply of regulations governing charities. Rather, the Article takes a narrow focus: the investment, management, …
Revising The Model Nonprofit Corporation Act: Plus Qa Change, Plus C'Est La M~Me Chose, Lizabeth A. Moody
Revising The Model Nonprofit Corporation Act: Plus Qa Change, Plus C'Est La M~Me Chose, Lizabeth A. Moody
Georgia Law Review
The proposed revision of the 1988 version of the Model Nonprofit Corporation Act (MNCA) leaves most of the 1988 revisions in place. Overall the changes will bring the Act closer to the Model Business Corporation Act which was the stated intention of the 1988 revision. The major changes which are being proposed include: dropping the classification scheme which divided nonprofit corporations into Public Benefit, Mutual Benefit and Religious corporations;deleting certain provisions with respect to the role of the attorney general; prohibiting cumulative voting; including provisions of the Model Entity Transactions Act (META); and providing for Select Exempt Corporations.
Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Mary Louise Fellows, Gregory S. Alexander
Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Mary Louise Fellows, Gregory S. Alexander
Georgia Law Review
As others in this symposium have stated, Richard V. Wellman devoted his professional life to promoting legislation to make the law of estates and trusts responsive to the needs of a state's citizenry. As he saw it, his goal to make the law of donative transfers simpler, fairer, and less expensive depended upon new legislative proposals accompanied by a range of strategies to educate the bar and policymakers about them. Over the years, Dick's faith in statutory lawmaking only grew, because estate planning experts and legislators lauded the benefits achieved through enactment of the uniform laws he either drafted or …
Richard Vance Wellman, Thomas L. Jones
Richard Vance Wellman, Thomas L. Jones
Georgia Law Review
I first met Richard "Dick"Vance Wellman when I was a graduate law student at The University of Michigan. As it turned out, Dick and I taught almost the same courses in our law schools. Perhaps I knew Dick best, however, as a Commissioner on Uniform State Laws.' The Model Probate Code (MPC) was promulgated in 1946 with Professor Lewis Simes, of The University of Michigan, as its Chief Reporter. As its name suggests, the Model Probate Code was intended to be a collection of probate statutes from which the respective states might pick and choose a well-drafted provision on a …
Richard Wellman And The Reform Of American Probate Law, John H. Langbein
Richard Wellman And The Reform Of American Probate Law, John H. Langbein
Georgia Law Review
Richard Wellman was a national treasure. He was our most knowledgeable and influential authority on probate procedure, that is, on the processes for administering decedents' estates. By the middle decades of the twentieth century, when Wellman's career took shape, many American probate courts were a disgrace. Their rules, mostly embodied in state statutes, required court supervision of the most routine steps in the work of winding up the estate, paying the creditors, and transferring the remaining property to the heirs or devisees. Lawyers, probate judges, and court functionaries prospered doing makework at the expense of widows and orphans and charities. …
Care And Maintenance Of Our Legal System: Richard V. Wellman-Academic Lawyer, Eugene F. Scoles
Care And Maintenance Of Our Legal System: Richard V. Wellman-Academic Lawyer, Eugene F. Scoles
Georgia Law Review
Nearly all human beings share an interest to seek peaceful resolution of differences that interrupt what they consider to be the reasonable conduct of their affairs. In our form of government, the legal system reflects and reinforces this basic conception. Our society employs the legal system to avoid or remedy disruptive confrontations that occur among us. One of the important functions performed by the legal profession, or lawyers, is the maintenance and improvement of our legal system in its impact on all of us. Under our shared view of a society governed by law, the legal system touches all activities …
Dick Wellman-A Personal Remembrance, Lawrence W. Waggoner
Dick Wellman-A Personal Remembrance, Lawrence W. Waggoner
Georgia Law Review
Dick Wellman was my teacher, mentor, collaborator, colleague, and friend. My law school class at The University of Michigan Law School voted Dick the most enthusiastic member of the faculty, and he was that. Dick devoted his professional life to teaching and scholarship, as most law professors do, but he had another career: Dick was a key player in the Uniform Law Conference,' an organization dedicated to improving private law and promoting legislative uniformity among the states. Through his uniform law work, Dick literally changed the legal landscape in the area of trusts and estates. His path breaking work as …
Recommendations Of The Joint Conference
Recommendations Of The Joint Conference
Georgia Law Review
Health-care and financial planning for the client with diminished capacity requires a holistic approach that includes consideration of the realities of dementia progression, cultural and linguistic diversity, capacity that may vary over time, issues of surrogate decision making, and recognition of the client's vulnerability to abuse, neglect, exploitation and undue influence. A goal of legal planning should be to limit the use of guardianship to the greatest extent possible.
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
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 …
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 …
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 …