Estates and Trusts Commons^™

How Do I Love Thee, Let Me Count The Days: Deathbed Marriages In America, Terry L. Turnipseed

Kentucky Law Journal

No abstract provided.

Remembering The Creditor At Death: Aligning Probate And Nonprobate Transfers, Elaine H. Gagliardi

Faculty Law Review Articles

This article focuses solely on creditor clams arising prior to death that remain unpaid as of death. Part II highlights through examples the difficulties the fragmented system causes for creditors. Part III examines key probate procedures governing creditor claims, and Part IV contrasts those procedures with procedures for collecting creditor claims from nonprobate assets. Part IV also explores the ability of creditors to reach specific types of nonprobate assets. Part V then suggests legislative reforms that would better balance both the interests of beneficiaries and the interests of a decedent's creditors.

Rationalising Re Hastings-Bass: A Duty To Act On Proper Bases, Hang Wu Tang

Research Collection Yong Pung How School Of Law

In recent times, the courts have increasingly invoked the power to undo the adverse consequences caused by a trustee's acts in certain circumstances. The basis for such an intervention is premised on the so-called rule in Re Hastings-Bass.1 This development has generated enormous interest in terms of case law and essays from the judiciary, legal academy and practising lawyers. Commentators are divided on whether Re Hastings-Bass has a sound jurisprudential foundation. The thesis of this paper is that Re Hastings-Bass is best understood as a doctrine based on a trustee's duty to act on proper bases and not one premised …

Foreword: Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Georgia Law Review

On January 5, 2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations,"was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law, trust law, …

Incorporation Choice, Uniformity, And The Reform Of Nonprofit State Law, Garry W. Jenkins

Georgia Law Review

This Article explores the significance of private lawmaking initiatives in the reform process of nonprofit state law. Specifically, Professor Jenkins considers projects led by the American Bar Association, American Law Institute, and National Conference of Commissioners on Uniform State Laws. He documents and explains how various institutional dynamics, ingrained habits, and other factors unique to the tax-exempt sector, most notably the choices of nonprofit organizations regarding where to incorporate,affect the ways in which nonprofit law is developed. To that end, the Article presents empirical findings revealing that nonprofits are far less likely than for-profit corporations to opt for out-of-state incorporation.This, …

From The Dead Hand To The Living Dead: The Conundrum Of Charitable-Donor Standing, Evelyn Brody

Georgia Law Review

This Article examines the current confused state of the law that applies to the private enforcement of restricted charitable gifts, and describes the first steps toward a tailored legal regime that appears in the American Law Institute's draft project on Principles of the Law of Nonprofit Organizations,for which this author is reporter. That regime addresses not only standing, but also proposals for notification of the attorney general, time limits on private (but not attorney general) enforcement, and a circumscription of appropriate remedies in order to protect the charity. Several of the issues, however, will likely require a legislative solution.

Charities, Endowments, And Donor Intent: The Uniform Prudent Management Of Institutional Funds Act, Susan N. Gary

Georgia Law Review

American charities manage substantial funds in conjunction with carrying out their charitable purposes, holding some funds for current operating needs and others as endowments. The legal rules on managing and investing those funds have worked well, but are now somewhat out of date, and revisions to these rules will benefit donors, charities, and charitable beneficiaries. Because laws regulating charities come from a variety of sources, including trust law, nonprofit corporation statutes, federal tax laws, and additional state statutes, this Article does not address the full panoply of regulations governing charities. Rather, the Article takes a narrow focus: the investment, management, …

Revising The Model Nonprofit Corporation Act: Plus Qa Change, Plus C'Est La M~Me Chose, Lizabeth A. Moody

Georgia Law Review

The proposed revision of the 1988 version of the Model Nonprofit Corporation Act (MNCA) leaves most of the 1988 revisions in place. Overall the changes will bring the Act closer to the Model Business Corporation Act which was the stated intention of the 1988 revision. The major changes which are being proposed include: dropping the classification scheme which divided nonprofit corporations into Public Benefit, Mutual Benefit and Religious corporations;deleting certain provisions with respect to the role of the attorney general; prohibiting cumulative voting; including provisions of the Model Entity Transactions Act (META); and providing for Select Exempt Corporations.

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

Mercer Law Review

This Article describes the significant Georgia cases and legislation from the period of June 1, 2005 through May 31, 2006 that pertain to Georgia fiduciary law. Specifically, the Article covers cases and legislation on matters relating to wills, trusts, the administration of decedents' estates, and the guardianship and conservatorship of minors and incapacitated adults.

Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

The General Assembly enacted legislation dealing with wills, trusts, and estates that added or amended a number of sections ofthe Virginia Code in its 2006 Session. In addition, there were sixopinions from the Supreme Court of Virginia during the periodcovered by this review that presented issues of interest to the general practitioner as well as the specialist in wills, trusts, and estates. This article reports on all of these legislative and judicial developments.

The Writing On The Wall: The Potential Liability Of Mediators As Fiduciaries, Rebekah Ryan Clark

BYU Law Review

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Liberating Estates Law From The Constraints Of Copyright, Lee-Ford Tritt

UF Law Faculty Publications

This Article addresses a disturbing statutory phenomenon of enormous importance to any artist, composer, writer, scholar, scientist or innovator. The phenomenon, which I have termed “estate-bumping,” has driven an unintended wedge between copyright law and estates law by effectively preventing authors of copyrights from disposing of their copyright interests through common estate planning mechanisms. Current copyright law imposes a unique restraint on the testamentary freedom of copyright authors, a restraint not imposed on any other type of property owner. In effect, this restraint enables unintended beneficiaries to rewrite, or “bump”, an author’s estate plan. Thus, it is copyright law – …

Family Limited Partnerships: The Beat Goes On, Walter D. Schwidetzky

ExpressO

Family limited partnerships ("FLP's") are commonly used for estate planning and estate tax savings. They have come under attack by the IRS. Of late, courts have often held that the assets of an FLP are included in the decedent's estate under section 2036 of the Internal Revenue Code. The article discusses a number of recent, highly important cases in this area and makes a proposal for reform.

Proposals For Revising Georgia's Probate Code, Mary F. Radford

Faculty Publications By Year

No abstract provided.

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Gregory S. Alexander, Mary L. Fellows

Cornell Law Faculty Publications

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Free Will To Will? A Case For The Recognition Of Intestacy Rights For Survivors To A Same-Sex Marriage Or Civil Union?, Christine A. Hammerle

Michigan Law Review

This Note argues that courts should recognize intestacy rights for same sex couples that were validly married or civilly united in a state other than the one in which one of the partners died. Courts may validly recognize the marriage for intestacy purposes, even while refusing to recognize the marriage as against public policy. Part I details the recent provision of benefits in various states to same-sex couples. Part II argues that same-sex couples cannot necessarily rely on wills to effectuate their intent to leave their property to their spouses. Part III argues that when states refuse to recognize the …

A Tale Of Two Trusts: The Barnes Foundation And The Isabella Stewart Gardner Museum, Jeannette H. Maurer

ExpressO

This paper examines the law of charitable trusts and donor intent through a comparison of two museums: the Barnes Foundation and the Isabella Stewart Gardner Museum. This paper first analyzes the framework of the Barnes trust and the Gardner trust and explores the various limitations each donor placed upon their trust instruments, including the similar restriction that, after their deaths, their art could never be moved from where they placed it in their respective galleries. The paper then compares and contrasts the Gardner trust with the Barnes trust and discusses how, given their initial similarities, the Gardner Museum has received …

Distinguishing Trustees And Protecting Beneficiaries: A Response To Professor Leslie, Karen E. Boxx

Articles

No abstract provided.

In Search Of A Unifying Principle For Article V Of The Uniform Trust Code: A Response To Professor Danforth, Jeffrey A. Schoenblum

Cardozo Law Review

No abstract provided.

Policy, Logic, And Persuasion In The Evolving Realm Of Trust Asset Protection, John K. Eason

Cardozo Law Review

No abstract provided.

Why The Generation-Skipping Transfer Tax Sparked Perpetual Trusts, Mary Louise Fellows

Cardozo Law Review

No abstract provided.

Perpetuities Or Taxes? Explaining The Rise Of The Perpetual Trust, Max M. Schanzenbach, Robert H. Sitkoff

Cardozo Law Review

By abolishing the Rule Against Perpetuities, twenty-one states have validated perpetual trusts. The prevailing view among scholars is that enactment of the generation skipping transfer (GST) tax in 1986 prompted the movement to abolish the Rule by conferring a salient tax advantage on long-term trusts. However, an alternate view holds that demand for perpetual trusts stems from donors' preference for control independent of tax considerations. Proponents of both views have adduced supporting anecdotal evidence. Using state-level panel data on trust assets prior to the adoption of the GST tax, we examine whether a state's abolition of the Rule gave the …

Perpetual Trusts, Conservation Servitudes, And The Problem Of The Future, Susan F. French

Cardozo Law Review

No abstract provided.

Undoing Repeal Of The Rule Against Perpetuities: Federal And State Tools For Breaking Dynasty Trusts, Joel C. Dobris

Cardozo Law Review

No abstract provided.

Article Five Of The Utc And The Future Of Creditors' Rights In Trusts, Robert T. Danforth

Cardozo Law Review

No abstract provided.

Fear Not The Asset Protection Trust, Adam J. Hirsch

Cardozo Law Review

No abstract provided.

Common Law, Common Sense: Fiduciary Standards And Trustee Identity, Melanie B. Leslie

Cardozo Law Review

No abstract provided.