Estates and Trusts Commons^™

A Descendible Right Of Publicity: Has The Time Finally Come For A National Standard?, J. Steven Bingman

Pepperdine Law Review

No abstract provided.

What Happens To Our Facebook Accounts When We Die?: Probate Versus Policy And The Fate Of Social-Media Assets Postmortem, Kristina Sherry

Pepperdine Law Review

More than 580,000 Facebook users in the U.S. will die this year, raising numerous legal questions as to the disposition of their Facebook pages and similar “digital assets” left in a state of legal limbo. While access to and ownership of decedents’ email accounts has been philosophized for nearly a decade, this Comment focuses on the additional legal uncertainties posed by “digital death” in the more amorphous realm of “social media.” Part II explores the implications of digital death by conceptualizing digital assets and surveying the underlying legal principles of contractual policies, probate, property, and privacy concerns. Part III surveys …

The Moral Patient, The Honorable Fiduciary, And A Faltering Liberalism: An Exploration Of Professor Bryant's Call To Animal Respect, Iris J. Goodwin

Between the Species

Professor Bryant’s article – which seeks to discover whether aspects of an anticruelty statute can be based directly on a call to virtuous conduct – is a provocative piece of scholarship that harbors a much larger question: Can a general principle mandating full respect for animals be developed out of the moral methodology inhering in virtue ethics? Insights garnered in this rejoinder are meant to stand alongside those in Professor Bryant’s article to lend deep moral grounding to animal-respect as well as provide intimations of the way virtue ethics as a moral methodology might yield determinate answers to moral questions. …

Understanding Duties And Conflicts Of Interest--A Guide For The Honorable Agent, Linda S. Whitton

Law Faculty Publications

This article examines the importance of understanding agent duties and conflicts of interest, both for drafting a power of attorney that meets a principal’s objectives and for providing guidance to the agent who will act under its authority. Professor Whitton suggests that current custom and practice with respect to powers of attorney often overlooks the need to adjust agent duties to accommodate the principal’s expectations, thus resulting in inadvertent conflicts between the duty to do what the principal expects and default duties of loyalty. The article offers practical guidelines for identifying and reconciling these conflicts, as well as best practices …

Advance Health Care Directives: Problems And Solutions For The Elder Law And Estate Planning Practitioner, Brooke M. Benzio

St. Thomas Law Review

"Remember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever. "' -Henry Van Dyke.

Since the modem movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in …

Astrue V. Capato: Relegating Posthumously Conceived Children To Second-Class Citizens, Nicole M. Barnard

Maryland Law Review

No abstract provided.

A Uniform Perpetuities Reform Act, 16 N.Y.U. J. Legis. & Pub. Pol'y 89 (2013), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

For centuries the Rule Against Perpetuities provided protection against a pair of dangers: that important stocks of property would become, effectively, permanently inalienable as a result of perpetual conditional gifts; and that the dead would be permitted to control the destinies of the living by placing permanent conditions on the fixed stock of available wealth (i.e., land wealth). In recent decades, though, the states have increasingly abandoned the Rule and its protections. As of 2011 all states have migrated, at least in part, beyond the traditional "twenty-one-years- plus-life-in-being" rule, and more than half have actually or effectively abolished their rules, …

Teaching Trusts & Estates And Elder Law: Pedagogy For The Future, 117 Penn St. L. Rev. 987 (2013), Susan Cancelosi, Barry Kozak

UIC Law Open Access Faculty Scholarship

No abstract provided.

Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is …

Who Killed The Rule Against Perpetuities?, Grayson M.P. Mccouch

UF Law Faculty Publications

This article examines the relationship between the federal wealth transfer taxes and the rule against perpetuities. The decline of the RAP is often attributed primarily to the GST tax amendments enacted in 1986. However, while perpetual trusts were available long before 1986, their estate tax avoidance possibilities were not widely used. Even after 1986, simple repeal of the RAP leaves perpetual trusts exposed to potential estate taxation. In addition, settlors should consider non-tax considerations in assessing the attractions of perpetual trusts.

"I'M Not Quite Dead Yet!": Rethinking The Anti-Lapse Redistribution Of A Dead Beneficiary's Gift, Eloisa C. Rodriguez-Dod

Cleveland State Law Review

A persistent challenge in law is how to achieve the necessary balance between individual decision-making and societal goals. This struggle of autonomy versus societal goals manifests itself in the context of anti-lapse law for wills and trusts. This article highlights how the current rules of construction regarding anti-lapse statutes fail both the goal of implementing intent and ensuring societal goals. An examination of the current statutes demonstrates that they are flawed, controversial, and, at times, result in inconsistent application. The current statutory scheme leads to unanswered questions: Should statutes presuppose distributions when an instrument does not explicitly address the specific …

The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis

Cleveland State Law Review

It is human nature to want to protect what one has worked hard to earn or accomplish. It is this very nature that entices individuals to search for creative methods by which to protect one’s assets, whether from high tax rates or creditors. As laws continually change, individuals strive to protect their assets in the most effective and secure manner possible. As a result, the protection of one’s assets has evolved from the use of offshore Asset Protection Trusts (APTs) to the use of domestic APTs (DAPT). The Ohio Legacy Trust Act is an attempt to modernize Ohio’s wealth management …

Valuing Art In An Estate: New Concerns, Anne-Marie E. Rhodes

Faculty Publications & Other Works

No abstract provided.

Sharia-Compliant Wills: Principles, Recognition, And Enforcement, Omar T. Mohammedi

NYLS Law Review

No abstract provided.

Kite: Irs Wins Qtip Battle But Loses Annuity War, Kerry A. Ryan

All Faculty Scholarship

In Kite, the Tax Court held that a 10-year deferred annuity constituted adequate and full consideration for a transfer of family partnership interests, even though the transferor died before receiving any payments. The court also held that the liquidation of a qualified terminable interest property trust and subsequent sale of its assets constituted a disposition of the qualifying income interest for life, resulting in a deemed transfer of the entire trust under section 2519. Ryan discusses those holdings and two more issues that were not raised in the Tax Court proceeding but are clearly implicated by the Kite facts.

In Re Gilmore, Andrew C. Thompson '13

NYLS Law Review

No abstract provided.

Rules Or Standards For Intestate Succession?, Stewart E. Sterk

Articles

No abstract provided.

“I’M Not Quite Dead Yet!”: Rethinking Anti-Lapse Redistribution Of A Dead Beneficiary’S Gift, Eloisa Rodriguez-Dod

Faculty Publications

Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent.

This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. This Article analyzes and identifies the deficiencies …

Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, Daniel B. Kelly

Journal Articles

The organizing principle of American succession law — testamentary freedom — gives decedents a nearly unrestricted right to dispose of property. After surveying the justifications for testamentary freedom, I examine the circumstances in which it may be socially beneficial for courts to alter wills, trusts, and other gratuitous transfers at death: imperfect information, negative externalities, and intergenerational equity. These justifications correspond with many existing limitations on the freedom of testation. Yet, disregarding donor intent to maximize the donees’ ex post interests, an increasingly common justification for intervention, is socially undesirable. Doing so ignores important ex ante considerations, including a donor’s …

Filling In The Blanks, William P. Lapiana

Articles & Chapters

No abstract provided.

The Not-So-Artful Dodger: The Mccourt-Selig Battle And The Powers Of The Commissioner Of Baseball, Matthew L. Winkel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Does “Defalcation” By A Fiduciary, Rendering A Debt Nondischargeable, Include Unknowing Breach Of The Duty Of Loyalty? (Bullock V. Bank Champaign, N.A.), Marshall E. Tracht

Other Publications

CASE AT A GLANCE

Petitioner Randy Curtis Bullock, trustee of a family trust, loaned trust funds to himself, jointly with his mother, for business purposes. These loans were all repaid. A state court entered judgment against him for breach of fiduciary duty, ordering that profits from the loaned moneys be paid to the trust. The Supreme Court must decide whether Bullock’s liability for self-dealing, without conscious misbehavior, is nondischargeable as a “defalcation while acting in a fiduciary capacity.

The Goldilocks Principle And Informed Consent In Joint-Spouse Representation, Madison Kaplan

Cardozo Journal of Equal Rights & Social Justice

The note explores the complexities of joint legal representation of spouses, emphasizing the need for balanced and clear informed consent. It highlights the challenges posed by conflicting legal guidelines and the necessity of detailed Joint Representation Agreements (JRAs) to navigate confidentiality and communication duties effectively.

The Emergence Of Natural Gas And The Need For Cooperative Federalism To Address A Big "Fracking" Problem., Joshua P. Dennis

San Diego Journal of Climate & Energy Law

This Comment explores the recent emergence of natural gas production, the hydraulic fracturing process and briefly touches on the current regulatory system that oversees its operation. I then explain why the current regulatory system is insufficient to protect individuals and the environment from hydraulic fracturing. And lastly, I argue that a form of cooperative federalism is the best approach to regulate hydraulic fracturing.

A Supreme Court Ruling That's About Way More Than Preemption, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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.