Estates and Trusts Commons^™

The Law Of Philanthropy In The Twenty-First Century: An Introduction To The Symposium, Anne-Marie Rhodes

Chicago-Kent Law Review

No abstract provided.

Helping Nonprofits Police Themselves: What Trust Law Can Teach Us About Conflicts Of Interest, Melanie B. Leslie

Chicago-Kent Law Review

Fiduciary duty law seeks to minimize agency costs that occur when the interests of the agent and principal diverge. That law is context specific: the substance depends upon the objectives of the fiduciary relationship and the degree to which other forces, such as markets and social norms, help align the incentives of principal and fiduciary.

Trust law has no business judgment rule, and prohibits even "fair" conflict of interest transactions unless they are approved by fully informed beneficiaries. Strict rules bolster norms against self-dealing and compensate for trust beneficiaries' poor monitoring abilities and inability to exit or diversify. Corporate fiduciary …

An Empirical Assessment Of The Potential For Will Substitutes To Improve State Intestacy Statutes, Mary Fellows, E. Gary Spitko, Charles Strohm

Faculty Publications

This Article uses an empirical study to test whether, in the absence of a will, beneficiary designations in will substitutes provide reliable evidence for approximating decedents' donative intent in an intestacy statute. No previous scholarship has explored the relationship between will-substitute beneficiary designations and intestacy statutes. We set out to investigate public attitudes about will substitutes and determine if the public prefers current law, which ignores will substitutes when determining the disposition of a decedent's property passing by intestate succession, or a statutory pattern that takes into account beneficiary designations found in a decedent's will substitutes. We are mindful that …

An Empirical Assessment Of The Potential For Will Substitutes To Improve State Intestacy Statutes, Mary Louise Fellows, E Gary Spitko, Charles Q. Strohm

Indiana Law Journal

No abstract provided.

Regrettably Unfair: Brooke Astor And The Other Elderly In New York, Joseph A. Rosenberg

Pace Law Review

No abstract provided.

Preventing Identity Theft And Other Financial Abuses Perpetrated Against Vulnerable Members Of Society: Keeping The Horse In The Barn Rather Than Litigating Over The Cause And/Or Consequences Of His Leaving, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

This article examines a troubling issue: the execution of important documents by individuals who are vulnerable, because of age, hospitalization, or other impairment, to financial abuse. Oftentimes, such individuals execute wills that are subsequently challenged on the grounds of lack of capacity or undue influence or execute writings which enable financial predators to prey on the individuals. Such predatory schemes often result in injury to the vulnerable individuals which might then be remediated by criminal or civil statute.

The purpose of this article is to propose a procedure by which much suffering and litigation could be prevented. If such a …

Check-The-Box Regs And Gift Tax Discounts, Wendy G. Gerzog

All Faculty Scholarship

This article discusses the recent Tax Court decision in Pierre and the effect for gift tax purposes of an entity’s classification made under the check-the-box regulations. The court was split on what those regulations mean when they state that an entity is to be disregarded ‘‘for federal tax purposes.’’

Teaching Trust Law In The Twenty First Century, Hang Wu Tang

Research Collection Yong Pung How School Of Law

I met Michael Bryan in 2004 at the Obligations II conference at the Melbourne Law School. It was my first time presenting a paper at an international conference and I was quite nervous. Michael, who was chairing my session, was extremely warm and supportive and put me quickly at ease. After the session, he generously gave me many insightful suggestions on how to improve my paper. Over the years, I have heard that this is just typical of Michael as a person; colleagues from Melbourne have often been effusive in their praise of Michael. Michael has certainly shown us the …

It Is Logic Rather Than Whom You Trust: A Rejoinder To Prof. Cohen, Douglas A. Kahn

Articles

This article is the continuation of an exchange that has taken place between Prof. Stephen B. Cohen and me concerning the validity of criticisms leveled by Chief Justice John Roberts on an opinion by then-Judge Sonia Sotomayor writing for the Second Circuit in the case of William L. Rudkin Testamentary Trust v. Commissioner. While affirming the Second Circuit’s decision, Chief Justice Roberts, writing for a unanimous Supreme Court, criticized and rejected Justice Sotomayor’s construction of the relevant statutory provision. In an article in the August 3, 2009, issue of Tax Notes, Cohen defended Justice Sotomayor’s construction of the statute and …

Respecting Foundation And Charity Autonomy: How Public Is Private Philanthropy? (Symposium) (With J. Tyler), Evelyn Brody

All Faculty Scholarship

Recent years have seen a disturbing increase in legal proposals by the public and government officials to interfere with the governance, missions, strategies, and decision-making of foundations and other charities. Underlying much of these debates is the premise – stated or merely presumed – that foundation and charity assets are “public money” and that such entities therefore are subject to various public mandates or standards about their structure, operations, and policies. The authors’ experiences and research reveal three “myths” that, singly or collectively, underlie claims that charitable assets are public money. The first myth conceives of charities as shadow governments …

The Times They Are Not A-Changin': Reforming The Charitable Split-Interest Rules (Again), Wendy G. Gerzog

All Faculty Scholarship

The article reviews the history of the tax treatment of charitable split interest gifts, explains the inequities that Congress both cured and generated in its 1969 reforms, and proposes solutions that are consistent with the goals of the 1969 legislation. The article discusses variations in the 1969 definition of a charitable split interest, which, because of the enacted statutory language, applies in instances where there is no abuse potential. The inequity produced by that definition penalizes the donor and flouts the rationale behind the 1969 legislation. By contrast, the creation of some required statutory forms of charitable split interests in …

Wills, Trusts And Estates (Annual Survey Of Virginia Law, 2009-2010), J. Rodney Johnson

Law Faculty Publications

The 2010 Session of the General Assembly enacted wills, trusts, and estates legislation (i) adopting the Uniform Power of Attorney Act, (ii) passing emergency legislation for the construction of tax-oriented wills and trusts of persons who die during 2010 with documents drafted prior thereto, (iii) revising the small-estate statutes, and (iv) clarifying the burial power of attorney. In addition, there were six other enactments, and seven opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2010 that present issues of interest in this area. This article reports on all of these legislative and judicial developments, …

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 …

Graveside Birthday Parties: The Legal Consequences Of Forming Families Posthumously, Browne C. Lewis

Law Faculty Articles and Essays

This essay highlights some of the legal consequences resulting from the widespread availability and use of reproductive technology. The Essay is divided into three parts. Part I examines the steps that must be taken to identify the legal parents of the posthumously conceived children. Part II discussed the reproductive rights of the deceased gamete providers. Since most posthumous reproduction is done using the sperm of dead men, the discussion centers on male reproductive rights. Finally, Part III focuses on the inheritance rights of posthumously conceived children.

Integrating Iras With Snts, Thomas Simmons

Faculty Publications

What happens when a client's IRA (or qualified retirement plan) names a third party supplemental needs trust (SNT) as a beneficiary? From a tax perspective, the result might not be pretty. The difficulty in integrating an SNT with an IRA lies in the "see through trust" rules which must be observed in order to qualify for beneficial income tax treatment.

Pooled Trusts: An Introduction And Personal History, Thomas Simmons

Faculty Publications

A "pooled trust" -- or a (d)(4)(c) trust -- is unique in several ways: (a) A pooled trust is not restricted to individuals under age 65 (although this is under challenge in certain states); (b) A pooled trust can be established by the individual himself/herself; and (c) The at-death "payback" requirement to satisfy the Medicaid lien at a beneficiary's death is stated differently than the payback requirement of a (d)(4)(A) (or "payback") trust. Trusts in other states other my own state of South Dakota have been established to qualify for the special pooled trust benefits. In 2003, I personally undertook …

Decanting And Its Alternatives: Remodeling And Revamping Irrevocable Trusts, Tom Simmons

Faculty Publications

No abstract provided.

Pemakaian Peraturan-Peraturan Kumpulan Wang Simpanan Pekerja (Kwsp) 2001 Dalam Tuntutan Dan Agihan Harta Tanpa Penamaan : Pelaksanaannya Di Kwsp Kuala Lumpur., Siti Fatimah Azzura Mohd Yusof

Student Works (2010-2019)

This research generally examines the concept of property without nomination and its administration in Malaysia. In order to examine the administration of the property, the Employees Provident Fund (EPF) institution was selected. The main discussion of this research focuses on the EPF claim application and its distribution aspects. Both of the aspects are stated in the EPF Regulations 2001. Furthermore this research is concentrated on the administrative issues of the claim and distribution of the property. This qualitative research had used methods of library research, documentation, sampling (Purposive Sampling) and interviewing in the collection of the data. In analyzing the …

Isu-Isu Dalam Kes Harta Sepencarian Di Mahkamah Syariah Singapura : Satu Analisis., Idham Halid Romli

Student Works (2010-2019)

This study discusses the issues of harta sepencarian (jointly-accumulated wealth) in the Syariah Court of Singapore. The objectives of this study are to examine the meaning and interpretation of harta sepencarian, and the influence of direct and indirect contributions in determining the amount received by the husband and wife from the harta sepencarian. Although the AMLA has provided general guidelines and interpretation on the factors which need to be taken into consideration when determining the distribution of harta sepencarian, but these guidelines do not distinguish between the main and supporting factors. Through literature studies, case-studies of Court cases and interviews, …

Should Charitable Trust Enforcement Rights Be Assignable?, Joshua C. Tate

Faculty Journal Articles and Book Chapters

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are …

The End Of Probate, Stewart E. Sterk

Articles

No abstract provided.

Helping Nonprofits Police Themselves: What Trust Law Can Teach Us About Conflicts Of Interest, Melanie B. Leslie

Articles

No abstract provided.

Integrating Catholic Social Thought In Elder Law And Estate Planning Courses: Reflections On Law, Age And Ethics, Lucia A. Silecchia

Scholarly Articles

A course in elder law or estate planning encompasses many of the most profound issues that arise in human life: the contemplation of mortality, ambivalent attitudes toward property and its proper distribution, complexities in family relationships, obligations to support loved ones, anticipation of physical or mental challenges, and reflections on one’s desired legacy to loved ones. Although there is much in the Catholic tradition and in the Scriptures themselves that speaks to these questions in an indirect way, this has not often been fully explored because this field may not, on its face, have an obvious connection to religious tradition. …

Fiduciaries With Conflicting Obligations, Steven L. Schwarcz

Faculty Scholarship

This Article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests - an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily on an agent’s duty to a given principal, not on conflicts among principals; trust law focuses primarily on gratuitous transfers; and commercial law generally addresses arm’s length, not fiduciary, relationships. The dilemma has become critically important, however, as defaults increase in the multitude of conflicting securities (e.g., classes of …

Implications Of Discovering Unreported Income, Improper Deductions, And Hidden Assets Upon A Taxpayer's Death, Jay A. Soled

Georgia Law Review

Death commonly opens windows into taxpayers' lives and sheds light on items that were previously kept hidden or tightly guarded. This light sometimes reveals that the decedent failed to report income, took improper deductions, or held undisclosed assets-factors that have historically contributed to the size of the "tax gap," i.e., the difference between what taxpayers owe in taxes and what they actually pay. This Article explores the implications of these postmortem discoveries for executors, who must administer the decedent's estate; estate beneficiaries,who are recipients of the estate's assets; and tax practitioners,who are called upon to lend technical assistance. Beyond describing …

It Takes A Village: Considering The Other Interests At Stake When Extending Inheritance Rights To Posthumously Conceived Children, Morgan K. Wood

Georgia Law Review

The advent of assisted reproductive technologies has brought into existence a new class of children: those not conceived until after the death of one biological parent, or posthumously conceived children. Such a child may be born after a parent dies from a terminal illness or is killed in military action. Is the child legally recognized as the child of the deceased parent,and may the child inherit from that parent's estate? Not surprisingly, the law has been slow to evolve to deal with this relatively new concept. Only twelve states to date have enacted statutes specifically addressing posthumously conceived children, so …

Child Trust Fund, Christopher L. Griffin Jr.

Faculty Publications

No abstract provided.

Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien

Scholarly Articles

First, this Article begins with history, as this forms the basis of electiveshare law. It is necessary to begin with the historical basis of a spouse's right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse's rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and …

Penderafan Dokumen Wasiat Islam Di Amanah Raya Berhad : Analisis Menurut Perspektif Islam., Al Azifah Mohd Safie

Student Works (2010-2019)

A document is a source of statement which in nature is dominant and authoritative in order to explain certain facts. Hence filing a Wasiyyaħ is more effective as it acts as a record where it can store and keep long term information due to the fact that a death of a person is uncertain. Therefore, this dissertation will be focusing on the prosess of drafting the document of Muslim’s bequests or known as Wasiyyaħ implemented at Amanah Raya Berhad, a Trustee Corporation in Malaysia. The primary objective of this research is to analyse the standard of drafting Muslim’s Wasiyyaħ in …

Pentafsiran Ayat-Ayat Mawarith Menurut H. Munawir Sjadzali., Ali Akbar

Student Works (2010-2019)

This research is aimed at studying H.Munawir Sjadzali's concept of his interpretation on inheritance (Mawarith) verses, especially verse 11 of surah al-Nisa' which was compiled in his article entitled: "Reaktualisasi Ajaran Islam" (towards re-actualization of Islamic Teachings). The article was published in a few books for examples , in the book edited by Drs. Iqbal Abdurrauf Saimima entitled: "Polemik Reaktualisasi Ajaran Islam" (Polemic on the re-actualization of Islamic Teachings), “Kontekstualisasi Ajaran Islam 70 Tahun Prof. Dr. H. Munawir Sjadzali. MA” (Contextualisation of Islamic Teachings, 70 years Prof. Dr. H. Munawir Sjadzali MA) by Team Editor Muhamad Wahyuni Nafis and the …