Estates and Trusts Commons^™

Alpha Duties: The Search For Excess Returns And Appropriate Fiduciary Duties, Ian Ayres, Edward Fox

Articles

Modern finance theory and investment practice have shifted toward “passive investing.” The current consensus is that most savers should invest in mutual funds or ETFs that are (i) well-diversified, (ii) low-cost, and (iii) expose their portfolios to age-appropriate stock market risk. The law governing trustees, investment advisers, broker–dealers, 401(k) plan managers, and other investment fiduciaries has evolved to push them gently toward this consensus. But these laws still provide broad scope for fiduciaries to recommend that clients invest instead in specific assets that they believe will produce “alpha” by outperforming the market. Seeking alpha comes at a cost, however, in …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Pascua V. Bayview Loan Servicing, Llc, 135 Nev. Adv. Op. 4 (Feb. 7, 2019), Scott Cooper

Nevada Supreme Court Summaries

The Court determined that an individual who has been appointed special administrator of a decedent’s estate is entitled to participate in the Foreclosure Mediation Program if the property is the special administrator’s primary residence, and they retain an ownership interest through intestate succession laws.

Probate Funding And The Litigation Funding Debate, Jeremy Kidd

Articles

Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature …

Fiduciary Principles In Bankruptcy And Insolvency, John A. E. Pottow

Book Chapters

This chapter examines fiduciary duties in bankruptcy and insolvency, focusing on the bankruptcy trustee’s duties, which are triggered by virtue of appointment in a case. It first provides a background on bankruptcy law in order to elucidate the doctrines and rules affecting fiduciary responsibilities in bankruptcy, citing a number of relevant provisions in the Bankruptcy Code. It then considers the fiduciary, non-fiduciary, and anti-fiduciary obligations of the trustee under the Bankruptcy Code before discussing the fiduciary duties of care and loyalty. In particular, it highlights bankruptcy-related issues raised by the duty of loyalty with respect to secured creditors, priority unsecured …

Janus As A Client: Ethical Obligations When Your Client Plays Two Roles In One Fiduciary Estate, Karen Boxx, Philip N. Jones

Articles

Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to an attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a …

Voice, Strength, And No-Contest Clauses, Karen J. Sneddon

Articles

The will is a unilateral written disposition of probate property to be effective upon the will-maker's death. To have any legal effect, however, the will-maker's family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker's voice may jeopardize the legal effect of the will.

This Article argues that the over-reliance on "time-tested" formulaic language …

Magical Thinking And Trusts, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

At a time of monumental economic inequality in the United States, wealthy individuals and their tax-motivated behavior have come under significant scrutiny from all corners. In 2019, the Supreme Court issued its first major ruling in over sixty years on the state income taxation of trusts. In North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the Court declined to close what some critics consider to be a major loophole that benefits the trusts that wealthy individuals create for family members. This Article makes two principal claims—one interpretative and the other normative. This Article explains why the …

Wills Formalities In The Twenty-First Century, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Individuals have executed wills the same way for centuries. But over time, traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary, and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent …

The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article …

Tearing Down The Wall: How Transfer-On-Death Real-Estate Deeds Challenge The Inter Vivos/Testamentary Divide, Danaya C. Wright, Stephanie Emrick

UF Law Faculty Publications

This Article will examine one of the most recent will substitutes, the transfer-on-death (“TOD”) real-estate deed. Nearly half of the states have recognized, through common-law forms or legislation, a mechanism to allow for the transfer of real property on death without using a will, without following the will formalities, and without necessitating probate. This new tool in the estate planner’s toolbox is invaluable: revocable trusts have proven too expensive for decedents of modest means, and wills continue to require formalities that can easily frustrate non-lawyer-drafted estate documents. But the variety of TOD deed rules and mechanisms that the different states …

The Stranger-To-The-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

This Article tracks the evolution of inheritance law for adopted children and suggests that courts use construction approaches that worked in the context of a new understanding of the parent-child relationship as a guide to construing wills in the context of changing social and legal definitions of the martial relationship. In this regard, Part II offers a brief overview of pertinent construction doctrines. Next, Part III summarizes the history of inheritance law for adopted children. Finally, Part IV draws an analogy between the stranger-to-the-adoption doctrine and an approach to inheritance law for same-sex spouses that this Essay calls the "stranger-to-the-marriage" …

Disrupting The Wealth Gap Cycles: An Empirical Study Of Testacy And Wealth, Danaya C. Wright

UF Law Faculty Publications

In an empirical study of all decedents dying in 2013 in Alachua County, Florida whose estates were probated, either testate or intestate, the data show striking correlations between intestacy and lower wealth, and testacy and greater wealth. And the demographics of those who died intestate correspond to the demographics of those people at risk of falling into the cycle of wealth-dissipation. To explore the possible effects of intestacy and testacy on wealth and property succession, I analyzed 408 estates (293 testate and 115 intestate) across a variety of categories, including wealth, age, race, sex, and marital status. All of these …

Purpose Trust Cy Pres, Thomas Simmons

Faculty Publications

No abstract provided.

Freedom Of Disposition V. Duty Of Support: What's A Child Worth?, Phyllis C. Taite

Faculty Articles

No abstract provided.

A "Mere Expectancy?" What Rights Do Beneficiaries Of A Revocable Trust Have Prior To The Death Of The Settlor?, Richard C. Ausness

Law Faculty Scholarly Articles

Revocable trusts became a popular form of a will substitute in the 1960s and remain so to this day. If the trust is funded, the settlor typically retains the right to receive income from the trust, the right to invade the trust principal, and the right to modify the terms of the trust. In addition, the settlor may serve as trustee or may appoint a third-party trustee. At the settlor's death, the trust assets, which may also include property transferred to the trust from the settlor's probate estate by means of a pour-over provision in the will, will be distributed …

Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak

Faculty Publications & Other Works

In trust administration, there is often a tugging contest between a settlor's or trustee's desire to limit certain information being released to beneficiaries and beneficiaries' desire for total transparency. While the reasons for limiting information are varied, a common one is autonomy, sometimes emanating from the settlor's or trustee's concern that such information may be harmful to the beneficiary or the family dynamic. Nowhere is this tension more apparent than the interplay between Uniform Trust Code (UTC) Sections 105 (Default and Mandatory Rules) and 813 (Duty to Inform and Report).

Utc's Duty To Inform And Report At 20 - How Mandatory Is Transparency, Anne-Marie E. Rhodes, Mel M. Justak

Faculty Publications & Other Works

No abstract provided.

Less Trust Means More Trusts, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The word “trust” has multiple meanings. In everyday speech, it refers to a feeling of confidence associated with integrity, such as trusting that a friend will keep a secret. In the financial context, some law students, lawyers and lucky individuals also understand that a trust is a near-magical device that splits legal and equitable title. A trustee holds formal legal title to property for the benefit of a beneficiary simply because the grantor declares it to be so. By turning the spotlight on “trust,” in both senses of the word, one can discern fault lines in contemporary U.S. political and …

Conflict-Of-Interest-Infected Virtual Representatives And A Cure, Thomas Simmons

Faculty Publications

The general rule that a person cannot be bound by an agreement or a decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. In many trust proceedings, all beneficiaries are necessary parties. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrines of representation and virtual representation. Under these common law doctrines persons -- even if not yet in existence -- can be held to be parties to a proceeding "virtually …

Decision And Persuasion: Re-Conceiving The Role Of The Planner Where Undue Influence Is Suspected, James Milton, Katheleen Guzman

Faculty Articles

No abstract provided.

Of Piketty And Perpetuities: Dynastic Wealth In The Twenty-First Century (And Beyond), Eric Kades

Faculty Publications

For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition of the Rule Against Perpetuities in over half the states along with sharp reductions in, and likely elimination of, the federal estate tax mean that there soon will be no obstacles to creating large pools of dynastic wealth insuring lavish incomes to heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic …

The Decline Of Revocation By Physical Act, Barry Cushman

Journal Articles

The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This article surveys the place of revocation by physical act in …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

Cardozo Arts & Entertainment Law Journal

No abstract provided.

How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton

Articles

The author examines clinical studies that use neuroscience technology to study patients in Vegetative States. The studies indicate that some of the patients are, in fact, conscious. The author suggests that this finding is a matter of considerable practical importance for the drafting and execution of end-of-life protocols such as Advance Directives and Living Wills. He recommends that statutes, and other guidance used by patients, caregivers, medical institutions, family members and others to draft and interpret such Directives and Wills, be revised or amended to take account of these results.