Estates and Trusts Commons^™

Review: Compassionate Care For The Living And The Dying, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "The End of End-of Life Law" (92 N.C.L. Rev. 1693 (2014), by Lois L. Shepard. In light of medical advances and increasing health care costs, conversations about end-of-life care will continue to occur. A significant portion of the discussion will focus on ways to handle surrogate decision-making. The practical suggestions Professor Shepherd includes in her article could be a valuable part of that dialogue.

Tipping The Scales In Favor Of Charitable Bequests: A Critique, Elizabeth R. Carter

Pace Law Review

The public policy favoring testamentary bequests to charities is well established in the law. However, that public policy can, and does, conflict with other equally well-founded public policies. When confronted with this conflict, courts are often dismissive or even hostile towards the parties seeking to challenge a testamentary bequest to a charity. I argue that the policy favoring charitable giving has gone too far and has, in some instances, undermined other important public policies. Specifically, courts and legislators have strengthened the charitable bequest policy without giving enough consideration to other, equally important public policies. This problem is not new. History …

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article describes selected cases and significant legislation from June 1, 2013 through May 31, 2014 pertaining to Georgia fiduciary law and estate planning.

Appellate Division, Second Department, Langan V. St. Vincent's Hospital Of New York, Christin Harris

Touro Law Review

No abstract provided.

Madoff Madness In The Estate Of Kessel, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

Unconstitutional Perpetual Trusts, Steven J. Horowitz, Robert H. Sitkoff

Vanderbilt Law Review

"I never can be thankful, Mr. Bennet, for any thing about the entail."t Perpetual trusts are an established feature of today's estate planning firmament. Yet little-noticed provisions in the constitutions of nine states, including in five states that purport to allow perpetual trusts by statute, proscribe ')erpetuities." This Article examines those provisions in light of the meaning of ')erpetuity" as a legal term of art across history. We consider the constitutionality of perpetual trust statutes in states that have a constitutional ban on perpetuities and whether courts in states with such a ban may give effect to a perpetual trust …

Probate Law Meets The Digital Age, Naomi Cahn

Vanderbilt Law Review

This Article explores the impact of federal law on a state fiduciary's management of digital assets. It focuses on the lessons from the Stored Communications Act ("SCA'), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment's privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account. While existing trusts and estates laws could legitimately be interpreted to …

Perpetuities And The Genius Of A Free State, Joshua C. Tate

Vanderbilt Law Review

Legal history, like all history, is inevitably a speculative affair. No one can be sure what the editors of Justinian's Digest might have excised from long-lost works of classical Roman law; nor can one know for certain what went through the minds of certain justices of the U.S. Supreme Court in the mid-twentieth century when they formed and reformed their views on Roosevelt's New Deal. Of course, scholars can try to chip away at this uncertainty: great progress can be made through educated guesses and learned theories. But certainty about the past is reserved for those who lived in it. …

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

Alms To The Rich: The Facade Easement Deduction, Wendy G. Gerzog

All Faculty Scholarship

This article presents the case for repeal of the façade easement deduction. Proponents of this benefit argue that the deduction encourages historic preservation by reimbursing property owners for relinquishing their right to alter the façade of their property in a way inconsistent with that conservation goal; however, this article shows that there are many reasons to urge its repeal: the revenue loss, the small number of beneficiaries, the financial demographics of that group of beneficiaries; the dubious industries that are supported by the deduction; and the continual marked overvaluation and abuse despite Congressional, court, and administrative review and expense.

After …

A Comparative Guide Of Where To Die: Should The United Kingdom Repeal Its Inheritance Tax?, William T. Thistle

Georgia Journal of International & Comparative Law

No abstract provided.

Elaine Hightower Gagliardi On Flipping The Lens Of Estate Planning: An Examination Of The Effectiveness Of Lifetime Transfers To Achieve Federal And State Tax Savings, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

Estate planners are recalibrating their planning focus in response to recent tax modifications at the federal and state levels. The need to refocus planning emanates from changes wrought by recent federal tax acts, beginning in 20011 and ending in 20132 with enactment of “permanent” provisions which increase the basic exclusion amount for federal estate and gift tax and generation skipping transfer tax exemption to an inflation adjusted $5,340,000 as of 2014,3 institute the portability election for federal estate tax purposes,4 alter the transfer tax rate to essentially a flat 40 percent,5 and eliminate the state death tax credit in favor …

Teaching Trusts And Estates, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

A Principled And Structured Approach For Ascertaining Beneficial Interests In Property Disputes: Chan Yuen Lan V See Fong Mun [2014] Sgca 36, Alvin W. L. See

Research Collection Yong Pung How School Of Law

In Chan Yuen Lan v See Fong Mun [2014] SGCA 36, the Court of Appeal provided important clarifications about the relationship between a resulting trust and a common intention constructive trust for the purpose of ascertaining beneficial interests in cases of property dispute. This issue, which has attracted much speculations, was left open in Lau Siew Kim v Yeo Guan Chye Terence [2007] SGCA 54 where the same court merely confirmed the continued relevance of the twin presumptions of resulting trust and advancement.

New York’S Decanting Statute: Helping An Old Vintage Come To Life Or Spoiling The Settlor’S Fine Wine?, David Restrepo

Pace Law Review

The Comment examines trust decanting in four parts. Part I reviews the historical evolution of decanting statutes, first from common law roots, and later focusing on the legislative history of New York’s decanting statute. Part II briefly explains the functionality of section 10-6.6 of the NY EPTL; the “how does it work” explanation of the statute that authorizes decanting. Part III will discuss the many practical uses of the decanting statute. Finally, Part IV will transition into a discussion on how the trustee’s use of this statute not only leaves him in limbo regarding the tax treatment of his actions, …

The Home: Where Our Heart Resides, David M. English

Faculty Publications

Helping a client maximize the use of his or her home for these purposes is no simple task. It requires knowledge of options and resources across many domains. But stepping back and taking a broader look at these strategic opportunities and pitfalls is useful in appreciating the knowledge and skill set needed to competently counsel and represent aging clients. This article looks first at a variety of consumer protection issues, examines the interrelationship between the home and a variety of government benefits, and concludes with a discussion of technology that may enable an elderly person to remain in the place …

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

Articles

This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …

Disincentivizing Elder Abuse Through Disinheritance: Revamping California Probate Code § 259 And Using It As A Model, Travis Hunt

BYU Law Review

No abstract provided.

Domestic Asset Protection Trusts: A Threat To Child Support?, Trent Maxwell

BYU Law Review

No abstract provided.

Trombetta: The Two Trust Tango, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

Impact Of Uniform Laws On The Teaching Of Trusts And Estates, David M. English

Faculty Publications

Beginning in 1969 with the approval of the Uniform Probate Code (UPC), uniform laws have had a major impact on the teaching of the basic Trusts and Estates course. This is not the place to list the close to thirty uniform acts relating to Trusts and Estates that have been approved. Rather, this Article will focus on the impact that uniform laws have had on the content of what is taught in the Trusts and Estates course. Uniform laws are not written in a vacuum. Like other legislative enactments, they are the product of societal changes and changes in legal …

Can We Trust Trustees? Proposals For Reducing Wrongful Foreclosures, John Campbell

Catholic University Law Review

No abstract provided.

From Here To Eternity: The Folly Of Perpetual Trusts, Lawrence W. Waggoner

Law & Economics Working Papers

Trusts that can operate for as many as a thousand years or even forever, typically for the benefit of the settlor’s descendants living from time to time, now and in the future, are all the rage in banking and estate-planning circles. Before 1986, when Congress passed the federal generation-skipping transfer tax (GST tax), settlors had little incentive and probably little desire to establish perpetual trusts, even though they were permitted to do so under the law of Wisconsin, South Dakota, or Idaho. The GST tax created an artificial incentive for the wealthy to establish such trusts. The origin of the …

Accidental Inheritance: Retirement Accounts And The Hidden Law Of Succession, Stewart E. Sterk, Melanie B. Leslie

Articles

Americans currently hold more than $9 trillion in retirement savings accounts. Those accounts, together with the family home, are the principal source of wealth for most working and retired Americans. But when a retirement accountholder dies prior to exhausting retirement savings, what governs the distribution of the account? Most often, not the accountholder’s will or trust, but a one-page fill-in- the-blanks beneficiary designation form that the accountholder filled out, typically without advice of counsel, when she or he opened the account.

When accountholders fill out beneficiary designation forms, they are focused on starting a new job or beginning to save …

What's Wrong With A Federal Inheritance Tax?, Wendy G. Gerzog

All Faculty Scholarship

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax, but there are serious flaws with that idea. In existing inheritance tax systems, those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; and (3) the persistence of most current valuation distortion abuses. In any inheritance tax model, moreover, there would be significantly decreased compliance rates and increased administrative costs because by focusing on the transferees instead of the transferor, …

Review: Linking The Certainty Of Death And Taxes, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "Wills for Everyone: Helping Individuals Opt Out of Intestacy" (53 B.C.L. Rev. 877 (2012)), by Reid Kress Weisbord. Lewis praises Weisbord’s attempt to simplify the testamentary process. She agrees with his assertion that in failing to execute a will, most people are not fearing their own mortality and instead are just not willing or able to navigate a complicated testamentary process. She supports his suggestion to make executing a will more like filing a simple tax return, when possible. In sum, she praises his efforts to reduce the rate of intestacy by simplifying the testamentary …

Van Alen: A Reasonable Consistency, Wendy G. Gerzog

All Faculty Scholarship

In Van Alen, the Tax Court held that the duty of consistency required that two of the decedent’s children use the section 2032A basis valuation figures to determine gain on the sale of their interest in the decedent’s ranch, which was left to them in trust. The siblings had argued that their stepmother erroneously completed their father’s estate tax return.

Survivorship Rights In Joint Bank Accounts: A Misbegotten Presumption Of Intent, Gregory Eddington

Marquette Elder's Advisor

The Article addresses the frequently litigated issue of the ownership of joint bank accounts that elderly people may have opened to protect against incapacity or to avoid FDIC insurance limits on single accounts. Despite the strong possibility of these non-donative motives, most states—by statute or court decision—award the accounts to the surviving co-tenants instead of the depositors’ heirs or will beneficiaries. This occurs even when the account contract did not contain language of survivorship and even when there is no evidence that the depositor was offered a contract that would have allowed him or her to choose an agency arrangement. …

Contemporary Trusts And Estates - An Experiential Approach, Jerome Borison, Naomi R. Cahn, Susan N. Gary, Paula A. Monopoli

Faculty Scholarship

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate “theoretical and practical legal knowledge and professional identity.” This essay goes on to outline …

The Uniform Power Of Attorney Act: Not A One-Size-Fits-All Solution, Angela M. Vallario

University of Baltimore Law Review

No abstract provided.