Estates and Trusts Commons^™

Immortal Fame: Publicity Rights, Taxation, And The Power Of Testation, Joshua C. Tate

Georgia Law Review

Several states now recognize survivable publicity rights, allowing the heirs of a deceased celebrity to inherit the rights to her image and likeness. Under the default U.S. rule of testamentary freedom, a celebrity could also freely devise such survivable rights to persons of his or her choosing. Nevertheless, some scholars have recently proposed the adoption of state statues under which survivable publicity rights would pass automatically to specified statutory heirs regardless of the celebrity's wishes. This Article concludes that no such interference with testamentary freedom is warranted. There is admittedly some historical precedent for protecting the interests of surviving family …

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

Mercer Law Review

This Article addresses significant judicial and legislative developments of interest to the Georgia trial practitioner.

Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

No abstract provided.

The Low Road To Cy Pres Reform: Principled Practice To Remove Dead Hand Control Of Charitable Assets, Rob Atkinson

Scholarly Publications

In recent decades many scholars have called for reduction of dead hand control of charitable assets. These scholars have recommended the "high road" to reform: sweeping, wholesale revision of legal doctrines by either courts or legislatures. These calls, for all their merit, have gone virtually unheeded. In the face of that apparent impasse, this article recommends a different route, a "low road," to reform: an immediately available set of strategies for removing dead hand control, strategies that can be deployed, in particular cases, right now. The net effect of this piecemeal, practical approach should be to move us, albeit in …

A Comment On Unification, Grayson M.P. Mccouch

UF Law Faculty Publications

This Article discusses recent proposals aimed at unifying the law of wills and nonprobate transfers. The author notes that default rules of construction present the strongest case for unification, but contends that distinctions between wills and nonprobate transfers remain important in the areas of formalities and restrictions affecting third-party rights. The author concludes that the policy goal should be to allow wills and nonprobate transfers to operate smoothly as complementary methods of deathtime wealth transmission.

Shattering And Moving Beyond The Gutenberg Paradigm: The Dawn Of The Electronic Will, Joseph Karl Grant

University of Michigan Journal of Law Reform

Legislators in Nevada have already acted to modernize the law of wills. This Article advocates that other states follow their lead and depart from what is described as the "Gutenberg Paradigm" by adopting similar legislation and embracing electronic technology. Part One of this Article explores the history of print, Johann Gutenberg's role in this development, and the emergence of the "Gutenberg Paradigm." Part Two examines the history and policy underpinnings of will execution formalities, and the role of the "writing" requirement. Part Three explores the use of electronic wills as conforming and nonconforming testamentary instruments. More specifically, Part Three highlights …

Individualized Justice In Disputes Over Dead Bodies, Frances H. Foster

Vanderbilt Law Review

In February 2007, the world had a ringside seat to a truly macabre fight. Under the glare of television cameras, Anna Nicole Smith's nearest but not dearest' battled in a Florida probate court over custody of her body. The parties agreed on only one point: "Anna Nicole Smith's appearance was a paramount issue to her." Yet, those same parties denied Anna Nicole after death the beauty she prized during life. Because of their protracted legal wrangling, Anna Nicole went to her grave a decomposed corpse in a closed casket. Anna Nicole Smith's tragic fate is by no means unique. For …

Was The Supreme Court Really Wearing Shining Armor? A Hard Day's Knight For Trusts And Estates, Marc S. Bekerman

Articles & Chapters

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 …

Law, Biology, And Property: A New Theory Of The Endowment Effect, Owen D. Jones, Sarah F. Brosnan

William & Mary Law Review

Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context. The paradoxical psychological bias known as the "endowment effect" puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at …

Intestate Inheritance Claims: Determining A Child's Right To Inherit When Biological And Presumptive Paternity Overlap, Megan Pendleton

Cardozo Law Review

No abstract provided.

Valuation Discounting Techniques: Terms Gone Awry, Wendy G. Gerzog

All Faculty Scholarship

Fair market value is defined in the section 2031 Regulations. For its validity, that definition of fair market value relies on the normal definitions of its significant terms: a seller is someone who is seeking the highest price for her product and a buyer is someone who wants to obtain the lowest price for his purchase. It is only that tension that creates the realistic, and fair, market value of that asset. Indeed, without that conflict, the definition is comprised of hollow words.

In the context of family limited partnerships, terms have been misused. By utilizing the limited partnership shell, …

Probate Law Reform And Nonprobate Transfers, Grayson M.P. Mccouch

UF Law Faculty Publications

The advent of widespread, large-scale probate avoidance has added a new dimension to the project of probate law reform. When the Uniform Probate Code made its debut in 1969, its primary goal was to modernize traditional probate procedures and make them more uniform, flexible, and efficient. The Code's reforms were in part a response to the rise of will substitutes which offered a ready means of transferring property at death outside the probate system. In the intervening years, however, will substitutes have continued to proliferate, while traditional probate procedures have resisted comprehensive reform. The probate system has not become obsolete …

Leaving More Than Money: Mediation Clauses In Estate Planning Documents, Lela P. Love, Stewart E. Sterk

Articles

When probate disputes arise, an increasing number of courts have been referring those disputes to mediation. Estate planners, however, have been less proactive about drafting wills to include mediation clauses that would anticipate estate disputes and channel them away from litigation. When a will mandates mediation, the will provides a dispute resolution mechanism designed to preserve family harmony, conserve estate assets, and avoid airing the family's "dirty laundry "-objectives common to many testator. Mediation clauses in wills are no panacea. They are of little value to testators who exalt control over estate assets above all other concerns, and they are …

Summary Of In Re Orpheus Trust, 124 Nev. Adv. Op. No. 16, Tanya Gaylord

Nevada Supreme Court Summaries

Appeal from a district court order denying a special trustee’s proposed distribution adjustments in a trust administration matter.

Leaving More Than Money: Mediation Clauses In Estate Planning Documents, Lela P. Love, Stewart E. Sterk

Washington and Lee Law Review

When probate disputes arise, an increasing number of courts have been referring those disputes to mediation. Estate planners, however, have been less proactive about drafting wills to include mediation clauses that would anticipate estate disputes and channel them away from litigation. When a will mandates mediation, the will provides a dispute resolution mechanism designed to preserve family harmony, conserve estate assets, and avoid airing the family's "dirty laundry "-objectives common to many testators. Mediation clauses in wills are no panacea. They are of little value to testators who exalt control over estate assets above all other concerns, and they are …

Till [My Parents'] Death Do Us Part: Exposing Testamentary Restrictions Placed On Marriages That Perpetuate Prejudice, Christina V. Bonfanti

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Tortious Interference With Expectancy Of Inheritance Or Gift--Suggestions For Resort To The Tort, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

This article examines the various factual circumstances in which a tort recovery for interference with the expectancy of inheritance or gift might be available, either as the only possible remedy for the disappointed expectant person or as an alternative to a remedy at equity or at probate, and determines, in regard to each circumstance, whether a cause of action in tort should be available. This tort has received recent attention, especially in light of the substantial awards, both compensatory and punitive, in a California Bankruptcy Court, 253 B.R. 550 (Bankr. C.D. Cal 2000), and, on appeal, in the U,S. District …

Nonmarital Children And Post-Death Parentage: A Different Path For Inheritance Law?, Paula A. Monopoli

Faculty Scholarship

Historically, nonmarital children were treated as “filius nullius,” the child of no one. American jurisprudence has evolved to embrace these children and to err on the side of treating them in the same manner as marital children. Much of inheritance law is concerned with establishing a parent-child relationship in order to determine one’s eligibility to inherit. The 1970s saw several United States Supreme Court cases address the issue of state inheritance statutes that imposed a higher burden on nonmarital children in establishing a parent-child relationship for purposes of inheritance. Some of these state statutes incorporated “surrogate” rules for divining whether …

The Upc Authorizes Notarized Wills, Lawrence W. Waggoner

Articles

This article reports on a 2008 amendment to the Uniform Probate Code that permits notarization as a method of will execution.

Dealing Fairly With Estate And Trust Beneficiary Complaints, Robert Whitman

Faculty Articles and Papers

No abstract provided.

On Inheritance And Disinheritance., Anne-Marie E. Rhodes

Faculty Publications & Other Works

No abstract provided.

Shattering And Moving Beyond The Gutenberg Paradigm: The Dawn Of The Electronic Will, Joseph Karl Grant

Journal Publications

Legislators in Nevada have already acted to modernize the law of wills. This Article advocates that other states follow their lead and depart from what is described as the "Gutenberg Paradigm" by adopting similar legislation and embracing electronic technology. Part One of this Article explores the history of print and the emergence of the "Gutenberg Paradigm." Part Two examines the history and policy underpinnings of will execution formalities, and the role of the "writing" requirement. Part Three explores the use of electronic wills as conforming and nonconforming testamentary instruments. Part Three, also, highlights some of the pitfalls and shortcomings of …

Reducing Estate And Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation And Arbitration, Jonathan G. Blattmachr

Cardozo Journal of Conflict Resolution

This Article discusses how litigation relating to the administration of estates and trusts might be reduced through by careful planning prior to the property owner's transfer of wealth during lifetime or at death. As the article details, litigation involving trust and estate matters often involves an emotional element not present in most other legally disputed matters. That also suggests that methods to reduce the risk of such litigation occurring may be unique to such matters. In Part 1, certain background matters relating to the climate for such litigation are presented. In Part 2, the historic "tool" of a disinheritance clause …

Revocable Trusts And The Law Of Wills: An Imperfect Fit, Alan Newman

Akron Law Faculty Publications

Over the centuries that wills have been used to dispose of testators’ property at death, the law of wills has developed to address issues that arose. Similarly, over the centuries that trusts have been used for non-testamentary purposes, the law of trusts has developed to resolve resulting issues.

In recent decades revocable trusts have become the most commonly used trust in the United States. To avoid estate administration, particularly in states in which administration involves cumbersome, time-consuming, and expensive court supervision, settlors make inter vivos transfers of assets that otherwise would be subject to administration on their deaths in trust. …

Pfeufer V. Cyphers: Giving The Testator’S Pen Too Much Might—The Unintended Tax Consequences Of Innocent Apportionment Language, Heather R. Pruger

Maryland Law Review

No abstract provided.

Caregiving And The Case For Testamentary Freedom, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the …

Whose Money Is It Anyway? The Case For A Mortality Discount For Cash Balance Plan Early Termination Lump Sum Distributions, William Handley Woolston

Student Award Winning Papers

No abstract provided.

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 …

Four Thousand Words On Finnegans Wake: The Misuse Of Copyright Doctrine And The Controversy Surrounding The Estate Of James Joyce, Samantha Brand

Cardozo Arts & Entertainment Law Journal

No abstract provided.