Estates and Trusts Commons^™

Merger Is Indirect Gift In Cavallaro, Kerry A. Ryan

All Faculty Scholarship

In Cavallaro v. Commissioner, the Tax Court held that a merger of two family-owned businesses resulted in a substantial taxable gift. The taxpayers avoided penalties by demonstrating that they relied in good faith on the mistaken advice of competent tax advisers.

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 …

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 …

Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt

UF Law Faculty Publications

Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national …

The White Whale: Bringing Emotion And Relevance To The Contemporary Trusts And Estates Course, Wayne M. Gazur

Publications

No abstract provided.

Trusts & Estates Law—Trust Protectors—Increasing Trust Flexibility And Security While Decreasing Uncertainty Of Liabilities For Doing So: How Amending Ark. Code Ann. § 28-73-808 To Better Conform With The Modern Trend Of Clarifying Trust Protection Could Effectively End The Fiduciary Guessing Game In Arkansas, J. Andy Marshall

University of Arkansas at Little Rock Law Review

No abstract provided.

Book Review, David Mckibbin Iii

Pepperdine Law Review

No abstract provided.

It Pays To Give It Away - Sometimes: Inter Vivos Charitable Remainder Unitrusts In Estate Planning, Robert G. Popovich

Pepperdine Law Review

No abstract provided.

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 …

A Distinction Without A Difference? An Examination Of The Legal And Ethical Difference Between Asset Protection And Fraudulent Transfers Under Virginia Law, Elizabeth Southall

Law Student Publications

“A distinction without a difference”—a colloquial expression employed by one wishing to recognize that while a linguistic or conceptual distinction exists between any number of options, any such distinction lacks substantive practical effect. To allege that a situation presents “a distinction without a difference” is to suggest that any difference between a given set of options is a logical fallacy—purely a creature of erroneous perception. When it comes to concepts of asset protection planning and fraudulent transfer law, one must ask whether the law draws a distinction where there is no difference....This essay identifies these distinctions. Part II provides a …

Who Is Afraid Of Perpetual Trusts?, Bridget J. Crawford

Michigan Law Review First Impressions

Throw a stone into a room full of law professors, and it is virtually impossible to hit someone who will defend perpetual trusts. Yet since 1995, eighteen states have repealed their rules against perpetuities, and there are now twenty-one states that permit trusts to last forever. Many academics have responded with a virtual pile-on, calling the repeals a "race to the bottom" at best and "loony" at worst. Lawrence Waggoner, Professor Emeritus at the University of Michigan School of Law and Reporter for the Restatement (Third) of Property: Wills and Other Donative Transfers, has made another contribution to the scrum. …

Family Caregiving And The Law Of Succession: A Proposal, Thomas P. Gallanis, Josephine Gittler

University of Michigan Journal of Law Reform

As the American population ages, the need for long-term care, already great, will become even greater. Some of this care is paid for by government programs, such as Medicaid, and by individual long-term care insurance policies. But the combination of the public fisc and private insurance are, and will continue to be, insufficient to pay for all of the care our seniors and adults with disabilities need. The provision of care in a family residence by one or more family members is an important component of our health care delivery system and must be supported and encouraged by public policy …

Children Of Assisted Reproduction, Kristine S. Knaplund

University of Michigan Journal of Law Reform

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …

Deliberative Accountability Rules In Inheritance Law: Promoting Accountable Estate Planning, Shelly Kreiczer-Levy

University of Michigan Journal of Law Reform

In the last few decades, the emerging trend in trust and estate law has been a steady loosening of the limitations on testamentary freedom. The 1990 Uniform Probate Code pioneered some of these developments. Construction rules are no exception. It is widely accepted that testamentary construction rules should track the owner's presumed intent. In this Article, I argue that there is also room, alongside these intent-furthering rules, for intent-defeating rules in inheritance law. A property owner lacks incentives to internalize the relational, familial, or economic effects of her allocation. Such rules, termed deliberative accountability rules, are therefore designed to foster …

Non-Judicial Estate Settlement, John H. Martin

University of Michigan Journal of Law Reform

Estate settlement through probate procedures satisfies no one. The public is hostile to the delay, expense, and lack of privacy that accompanies probate. Attorneys respond to public dissatisfaction by counseling probate avoidance. Legislatures facilitate some settlements by enacting simplified procedures for low-value estates. In large measure, the Uniform Probate Code (UPC) was a response to criticisms leveled at probate. Alternative settlement procedures are offered by the UPC, including informal testacy determinations and informal appointment procedures. These alternatives, however, remain imbedded in a judicial system, with it procedural rigidities. The UPC informal settlement alternatives did not silence the criticism. The continued …

Institutionalizing Mediation: The Role Of Lawyers And Bar Associations , Ronald R. Volkmer

Pepperdine Dispute Resolution Law Journal

The world of trusts and estates is changing before our eyes - the "multidiscipline practice" trend may radically change the traditional practice of the probate bar. There is one constant, however, besides change and that is conflict. That conflict is oftentimes lurking beneath the surface when a lawyer becomes involved in the estate planning process. All of the technical knowledge you may possess about the legal system and its rules is valuable and necessary. But, the estate planning lawyer is preeminently a counselor at law. In the strongest possible way I urge students to become aware of conflict management skills …

Mediation Of Probate Matters: Leaving A Valuable Legacy , Lela Porter Love

Pepperdine Dispute Resolution Law Journal

Mediation has the power to bring parties to a different level of understanding about their underlying situation and about each other, to re-establish family harmony and to resolve both monetary and relationship issues that probate matters generally involve. To realize these advantages, this paper makes two suggestions. First, attorneys should urge testators to consider dispute resolution provisions in their will. Such provisions allow the testator to weigh in with a directive that the family pull together and attempt to resolve its conflicts creatively. A dispute resolution clause can also provide a vehicle to express and encourage family values connected with …

Advantages And Disadvantages Of Mediation In Probate, Trust, And Guardianship Matters , Mary F. Radford

Pepperdine Dispute Resolution Law Journal

Mediation is the ADR process by which a neutral third party works with disputants to reach a mutually agreeable resolution. Mediation is arguably the oldest and most popular ADR technique in use today. Part I of this essay discusses the commonly accepted advantages of mediation as an alternative to litigation, and, in some instances, questions whether those advantages become disadvantages in the context of probate, trust, and guardianship cases. Part II examines the use of mediation as a component of the actual estate planning process rather than as an alternative to litigation.

The Greatest Heritage Is The Love Of A Family: The Larson Case And The Mediation Of Probate Disputes, Susan N. Gary

Pepperdine Dispute Resolution Law Journal

In 1981, two brothers, Ben and William Larson, began litigation that would last for four years. By the time the lawsuit ended, the "winning" brother was dead, and the other brother was bitter and estranged from the family of his only sibling. Although one can only speculate, had the brothers chosen mediation, rather than litigation, to resolve their dispute, both brothers might have achieved a better outcome.

A Holistic Approach To Estate Planning: Paramount In Protecting Your Family, Your Wealth, And Your Legacy, Melissa Street

Pepperdine Dispute Resolution Law Journal

This comment will take an in-depth look at the art of holistic estate planning. Part II will walk through an overview of how the holistic estate planning process works. Part III will discuss certain familial circumstances that have the most to gain from the holistic approach. Part IV will give a brief overview of other alternatives to litigation and their disadvantages. Part V will conclude this article.

What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner

Articles

Professor John Langbein and I have just concluded a twenty-year project for the American Law Institute to restate the law of donative transfers. The official title of our three-volume Restatement is the Restatement (Third) of Property: Wills and Other Donative Transfers.1 We refer to it herein simply as the Property Restatement. The third and final volume of the work was published in the last days of 2011. Professor Langbein spoke about certain of the initiatives in the two earlier volumes, which set forth the principles governing the law of wills, intestacy, interpretation of instruments, and the nonprobate system. The concluding …

Retirees Beware: Don't Worry About The British, 'Taxmageddon' Is Coming, Douglas A. Kahn, Lawrence W. Waggoner

Articles

"Taxmageddon" is coming. Unless Congress extends the current rates or reaches an agreement on tax reform, dividends will then be taxed as ordinary income at a marginal rate as high as 39.6 % and net capital gains will then be taxed at 20%. For high-income taxpayers, a 3.8% Medicare surtax will be added to the taxation of net capital gains, dividend income, interest, and other investment income, bringing the highest marginal rate to 43.4%.

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Publications

No abstract provided.

The New Super-Charged Pat (Power Of Appointment Trust), Wendy G. Gerzog

All Faculty Scholarship

This article proposes to repeal the QTIP provisions in order to collect revenue now for transfers that are essentially transfers to third parties and not to the decedent's spouse. Because there are advantages of increased flexibility attendant to a QTIP as opposed to a PAT, this article proposes to take those repealed QTIP benefits and attach them to the PAT, which would greatly enhance that marital deduction trust form. A super-charged PAT would thereby be able to preserve the decedent's GST tax exemption (like a reverse QTIP), create a decedent's by-pass trust by allowing a PAT (or a partial PAT) …

Message To Congress: Halt The Tax Exemption For Perpetual Trusts, Lawrence W. Waggoner

Articles

The federal estate tax is in abeyance this year. The popular press has picked up on the possibility that the estates of billionaires such as the late George Steinbrenner, who owned the New York Yankees, will escape the tax. The House Ways and Means Committee, chaired by Representative Sander Levin of Michigan, and the Senate Finance Committee, chaired by Senator Max Baucus of Montana, are now considering two questions: what the maximum rate and exemption will be when the estate tax returns and whether the tax will be reinstated for this year. Lurking behind the headlines but equally important is …

Am I The Only Person Paying Taxes? The Largest Tax Loophole For The Rich - Exchange Funds, David J. Herzig

Law Faculty Publications

President Obama is faced with a national debt at over $11 trillion and needs to fund projects such as National Health Care with an ever-shrinking tax base. As the economy has slowed, so have tax revenues. It would then make sense for the government to reexamine tax carve-outs that only benefit the wealthy. In fact, President Obama is on record saying he wants to eliminate tax loopholes. After almost fifty years, the time is ripe to eliminate one of the few congressionally authorized tax loopholes—the $30 billion Exchange Funds.

This Article addresses the social equity arguments and the tax and …

Ohio Trust Code Update: Recent Developments, Alan Newman

Akron Law Faculty Publications

This article is based on the author’s presentations at the 20th Annual Estate Planning Conference on Wealth Transfer in Columbus on June 26, 2009.

Since its enactment in 2006, effective January 1, 2007, the Ohio Trust Code (“OTC”) has been amended, a number of cases have been decided under it, and a variety of issues related to or raised by it have been identified. This article will review those developments.

Copyright Acknowledgment: This material is reprinted from the Probate Law Journal of Ohio with permission of Thomson Reuters. Copyright permission is on file.

Trust, We Have A Problem: Chawla Ex Rel. Geisinger V. Transamerica Occidental Life Insurance Company, Its Revelation Of A Problem In Insurable Interest Statutes And The Subsequent Effect On Irrevocable Life Insurance Trusts, Mary Mahala Gardner

Oklahoma Law Review

No abstract provided.

Shoemaker V. Gindlesberger: The Lack Of Privity Defense Survives, But Just Barely, Alan Newman

Akron Law Faculty Publications

In Shoemaker v. Gindlesberger, decided in May of this year, the Ohio Supreme Court held that: “A beneficiary of a decedent's will may not maintain a negligence action against an attorney for the preparation of a deed that results in increased tax liability for the estate.” In doing so, the Court approved and followed its 1987 decision in Simon v. Zipperstein. Under Zipperstein, an attorney who prepares a will for a client can not be liable in negligence to a third person the client intended to benefit under the will unless (i) the third person was in privity with the …

Symposium: Issues In Estate Planning For Same-Sex And Transgender Couples: Foreword, Jennifer L. Levi

Faculty Scholarship

Despite the sea of change in possibilities for creating lawful relationships for many gay, lesbian, bisexual, and transgender individuals, most jurisdictions do not allow them to marry or enter into any comparable legal status. The vast majority of states either by statute or state constitutional amendment actually prohibit marriage for same-sex couples. And, even when couples can marry or enter into a comparable legal status, they are faced with uncertainty regarding what effect, if any, will be accorded to that status should they travel or move. Given the legal challenges that same-sex couples face, the need for high-quality estate planning …