Estates and Trusts Commons^™

Hb 121 - Property, Wills, Trusts, And Estates, Colt Burnett, Ben Dell'orto

Georgia State University Law Review

The Act amends several aspects of trust law, including updating the application of the Uniform Statutory Rule Against Perpetuities in Georgia by extending the time within which a nonvested property interest or power of appointment must vest from 90 to 360 years. The Act also allows for modifications of a trust without judicial approval in some cases. Many passages are simplified, including the calculation of compensation for a trustee, which can now be modified through different procedures. Finally, the Act codifies the role of trust directors.

Sb 301 - Wills, Trusts, And Administration Of Estates, Morgan S. Ownbey, Paul M. Napolitano

Georgia State University Law Review

The Act creates the “Revised Uniform Fiduciary Access to Digital Assets Act,” extends fiduciaries’ powers to include managing tangible property and digital assets, and provides conforming cross-references for a conservator.

Hitting Rewind: The Supreme Court Of Pennsylvania In Trust Under Agreement Of Taylor Signals A Move Away From Modern Developments Of Trust Law By Requiring More Stringent Standards For Corporate Trustee Removal, Ryan J. Ahrens

Villanova Law Review (1956 - )

No abstract provided.

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

University of Richmond Law Review

The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities’ eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations’ administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors’ stock holdings, the disposition of unused tax credits at the taxpayer’s death, and fiduciary qualification without surety. The Supreme Court of Virginia handed …

Compelling Trustees To Exercise Their Discretion: A Principle Of Non-Intervention?, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This article explores the limitsof the principle of non-interference and examine situations where the courtshave overridden the discretion of the trustee and compelled the trustee to actin a particular manner. While there havebeen numerous instances where the courts have avoided the trustee’s act, thecases where the courts have actually compelled a trustee to exercise a power ina particular manner are relatively few. The thesis of this article is that amore helpful way to conceptualise the philosophy behind the judicial control ofa trustee’s discretion is not to say that the court is bound by a so-calledprinciple of non-interference; rather, the contention …

Do You Tru$T Your Children: A Parent’S Final Dilemma, J. Sam Rodgers

Cornell Journal of Law and Public Policy

Incentive trusts developed out of unique American inheritance laws and have become a regarded estate planning tool. Policy, observation, and research suggest that they are inadequate, although still uncritically used. A Hidden Bonus Trust is an improved solution that builds on the shortcomings of incentive trusts. Hidden Bonus Trusts quench parents’ desires to leave legacies and motivate troubled beneficiaries.

The Holy Grail? Designing And Teaching An Integrated Doctrine And Drafting Course, Claire C. Robinson May

Law Faculty Articles and Essays

I’ve long considered teaching doctrine and skills together in a single course to be the holy grail of legal education. If we could do so successfully, we might make significant strides in providing a legal education that better prepares our students to be practicing lawyers. In spring 2016, my colleague Professor April Cherry and I took the plunge and collaboratively offered a course titled Estates and Trusts: Doctrine and Drafting at our institution, Cleveland-Marshall College of Law. This essay describes our experience and lessons learned pursuing the holy grail.

Eb-5 Visa Regulation And Controversy: How An Immigration-Securities Hybrid Visa Has Been Used To Fund Real Estate Ventures, Rachel Behar

Cardozo International & Comparative Law Review

The EB-5 visa program, designed to stimulate the U.S. economy through job creation and capital investment by foreign investors, has become a controversial tool often misused to fund luxury real estate projects in affluent areas. While the program has contributed significantly to the economy, its implementation has strayed from its original intent, leading to criticism over issues like gerrymandering of Targeted Employment Areas (TEAs), inadequate securities regulation, and fraud risks. The article calls for reforms to align the program more closely with its intended purpose of aiding underserved communities.

Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow

Brooklyn Journal of Corporate, Financial & Commercial Law

In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee’s administration of a debtor’s estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of “bankruptcy M&A.” My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source …

In Re Connell Living Trust, 134 Nev. Adv. Op. 73 (Sep. 13, 2018) (En Banc), Pengxiang Tian

Nevada Supreme Court Summaries

The Court determined that a no-contest clause in a trust does not foreclose a beneficiary’s interest if the beneficiary, acting as the trustee, breaches his or her fiduciary duty.

Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien

Catholic University Law Review

Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …

The Rise Of Fiduciary Law, Tamar Frankel

Faculty Scholarship

The law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions' regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services.

Fiduciary relationships, and the concepts on which they are grounded, appear not only in the law. They appear in other areas of knowledge: economics, psychology; moral norms and pluralism. Fiduciary law has a very long history. It was recognized in Roman law and the British common law and appeared decades ago …

Is Marriage A Proxy For Wealth?, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

From Waqf, Ancestor Worship To The Rise Of The Global Trust: A History Of The Use Of The Trust As A Vehicle For Wealth Transfer In Singapore, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This Article focuses on the migration of English trust law to Singapore and its past and present uses in relation to wealth transfer through the ages. In Singapore, trust law arrived together with the corpus of English law. Unlike criminal law, which was influenced by Indian codes promulgated by the English in British India, trust law was received into Singapore directly from England.

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

The Limited Duties Of Lawyers To Protect The Funds And Property Of Nonclients, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Issues arise daily in law practice about the duties owed by lawyers to nonclients with respect to funds or property entrusted to them. In resolving those issues, care must be exercised when interpreting state versions of Model Rule 1.15, the American Bar Association’s pattern ethics rule on safekeeping of funds and property. Otherwise, a lawyer’s duties to third persons may too readily encroach on the performance of obligations owed to clients, as well as on the legitimate interests of lawyers themselves.

As numerous authorities have recognized, lawyers are obliged to protect the property interests of third persons only if they …

Borrowing In The Shadow Of Death: Another Look At Probate Lending, David Horton

William & Mary Law Review

“Fringe” lending has long been controversial. Three decades ago, demand for subprime credit soared, and businesses started to offer high-interest rate cash advances, such as tax refund anticipation loans, payday loans, and pension loans. These products have sparked intense debate and are subject to a maze of rules.

However, in Probate Lending, published in the Yale Law Journal, a coauthor and I examined a form of fringe lending that has gone largely unnoticed: firms that pay lump sums in return for an heir or beneficiary’s interest in a pending decedent’s estate. Capitalizing on a California law that requires …

A Social Welfare Theory Of Inheritance Regulation, Mark Glover

Utah Law Review

The law of succession grants donors broad freedom to decide how to distribute their property upon death. It does so in hopes of increasing social welfare in two general ways. First, freedom of disposition generates socially beneficial estate planning decisions. In particular, donors are in the best position to evaluate their own specific circumstances and to make decisions that, on the whole, produce the greatest utility from the transfer of their estates. Second, the donor’s autonomy over estate planning decisions incentivizes socially beneficial behavior, such as productivity during the life of the donor. Because the law views freedom of disposition …

Facilitating The Intent Of Deceased Social Media Users, Yael Mandel

Cardozo Law Review

This Note will proceed in four parts. Part I will discuss the background of general testamentary principles of trusts and estates law. Part II will address the existing post-life policies of Facebook, Instagram, LinkedIn, and Twitter and the implications of the recently drafted acts addressing the disposition of digital assets. Part III will propose adding some type of testamentary formalities for the distribution of access to a deceased user's social media accounts, such as adding an electronic signature line and requiring the user to re-enter their password before saving their selections. In addition, Part III proposes the application of certain …

Navajo Nation V. Department Of The Interior, Jaclyn R. Van Natta

Public Land & Resources Law Review

In Navajo Nation v. Department of the Interior, the Navajo Nation challenged the Department of the Interior’s 2001 and 2008 water allocation guidelines and asserted that under NEPA and the APA the guidelines violated the Navajo Nation’s water rights. The Navajo Nation also asserted a breach of trust claim against the United States. After nearly a decade of attempted settlement negotiations, the Navajo Nation reasserted its complaints. The District Court for the District of Arizona denied the Navajo Nation’s motions, and the Navajo Nation appealed to the Ninth Circuit Court of Appeals, which determined the Navajo Nation lacked standing, …

Dispensing (With) Electronic Wills, Thomas Simmons

Faculty Publications

No abstract provided.

The Texas Constructive Trust And Its Peculiar Requirements, David Dittfurth

Faculty Articles

Consider two cases. In the first case, you represent the children of a woman who was intentionally and wrongfully killed by her husband. After having pled guilty to negligent homicide, the husband probates his wife's will in which he is the sole beneficiary. In the second case, your client attempts an online transfer of her savings to another of her accounts but enters the account number erroneously and sends her life's savings to a stranger's account. The recipient of this windfall has withdrawn the money in cashier's checks and refuses to return them to her.

Your clients want a court …

Using Empirical Studies As A Basis For Updating Intestacy Laws, Sergio Pareja

Faculty Scholarship

The principal goal of any intestacy statute is to determine the probable intent of individuals who die without a will. Professor Wright and Ms. Sterner analyze 493 wills that were probated in Escambia and Alachua Counties, Florida, in 2013. This blog post reviews their study as well as Wright and Sterner's final analysis. Pareja adds, new statutes, if properly considered, should pay attention to gender, race, and class differences that surfaced in the authors’ study

Revisiting Sham Trusts: Common Intention, Estoppel And Illegality, Alvin W. L. See

Research Collection Yong Pung How School Of Law

This article examines the prevailing view that, to find a sham trust, the settlor’s shamming intention must be shared by the trustee. This common intention requirement, it is argued, overprotects the trustee and the beneficiary, and suffers from inconsistent application to conceptually identical cases. Moreover, where the sham is concocted for the perpetuation of an illegal purpose, the requirement may contradict the operation of the illegality doctrine. This article proposes that the two doctrines ought to align and that any prejudice to an innocent trustee or beneficiary can be addressed with more specific solutions such as a change of position …

Promoting Retirement Security For Low-Income Workers In Illinois: An Analysis And Lessons For Other States, Philip C. Aka, Chidera V. Oku, Murna Habila

Akron Law Review

This Article makes suggestions for promoting retirement security among low-income workers in Illinois with pointed lessons for workers in other U.S. states. Adapting a framework from a previous study by the principal author, the Article portrays retirement preparedness for low-income workers in Illinois as a function of changes in Social Security, employer-sponsored pensions, and personal assets—the famed “three-legged stool” of retirement income—synchronized with reduction of disparities between socioeconomic groups in education, healthcare, and housing. Many studies on retirement security focus excessively on the national level sometimes at the expense of the subnational phenomena that complicate retirement security and increase the …

Maryland Treads Water Over Elective Share Reform: The Spouse’S Desperate Cry For The Court’S Intervention With A Bright-Line Rule For Revocable Trusts, Angela Vallario

University of Baltimore Law Forum

No abstract provided.

Assessing Assisted Reproductive Technology, Raymond C. O'Brien

Catholic University Journal of Law and Technology

Technological innovation possesses both opportunity and challenge. Because assisted reproductive technology (ART) involves sexual intimacy, parenthood, personhood, gender identity, privacy, legacy, and a plethora of religious, historical, sociological, and ethical underpinnings, the challenges presented in such technological innovation are substantial. Nonetheless, the opportunities are significant and progressive. Because of in vitro fertilization, gestational and genetic surrogacy, posthumous conception, and mitochondrial replacement therapy, humans now have the opportunity to overcome infertility, gender obstacles to parentage, dynastic limitations, and diseases that have long plagued mothers and infants. However, challenges include the exploitation of surrogates, unequal access to ART services, possibilities of cloning …

Clarifying The “Probate Lending” Debate: A Response To Professors Horton And Chandrasekher, Jeremy Kidd

Articles

The debate over third-party funding of legal claims just got more interesting. The debate already had plot twists, such as free-market scholars lining up in opposition to the U.S. Chamber of Commerce and alongside proplaintiff scholars who they oppose in tort reform debates. Now add to the mix a recent paper by Professors Horton and Chandrasekher that introduced an entirely new angle to the debate: funding of probate disputes. Now that this parallel area of funding has been identified, comparing and contrasting probate funding with litigation funding should illuminate the incentives that funders/recipients face in both scenarios. By pointing out …

Commentary On Reid Kress Weisbord And David Horton, Boilerplate And Default Rules In Wills Law: An Empirical Analysis, Danaya C. Wright

UF Law Faculty Publications

Reid Weisbord and David Horton have undertaken an incredibly important empirical study in an area of law that suffers from a large gap in our understanding of how people actually choose to leave their property at their death and the drafting traps that can easily lead to litigation. The study is also important for illustrating how the lawyers we teach in Trusts and Estates need to be more careful in drafting the various documents to manifest their clients' testamentary intent. In particular, Weisbord and Horton studied 230 recently probated wills in Sussex County, New Jersey and discovered that the use …

My Response To Beyer And Bove, Richard C. Ausness

Law Faculty Scholarly Articles

Alexander Bove and Gerry Beyer were kind enough to read and comment upon my article about discretionary trusts. I thank them for the time and effort that they put into this assignment and I appreciate the constructive and insightful comments that they made. Needless to say, it is no small task to follow in the footsteps of the great Dean Halbach.

When I read their comments, my first reaction was to say “Gee, I wish that I had thought of that!” Between the two of them, Alexander Bove and Gerry Beyer identified a number of areas that I should have …