Estates and Trusts Commons^™

Mother. Orator. Woman Suffrage Leader: The Feminist Legacy Of Elizabeth Cady Stanton, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Honoring Probable Intent In Intestacy: An Empirical Assessment Of The Default Rules And The Modern Family, Danaya C. Wright, Beth Sterner

UF Law Faculty Publications

This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent …

Family Limited Partnerships And Section 2036: Not Such A Good Fit, Mitchell M. Gans, Jonathan G. Blattmachr

Hofstra Law Faculty Scholarship

The IRS has struggled to close down abusive family limited partnerships. At first unreceptive to IRS arguments, the courts eventually embraced section 2036 as an estate-tax tool for attacking such partnerships. Because the section was not designed to apply to partnerships, difficulties have arisen as the courts have struggled with the fit. In its most recent encounter, the Tax Court in Powell grappled with a fit-related issue that implicates the Supreme Court’s landmark decision in Byrum. The Powell court, it will be argued, misread Byrum, conflating the majority opinion with the dissent – and converting the rule-based approach adopted by …

A Chinese Inheritance, Thomas Simmons

Faculty Publications

The cultural values of a society are often discernible in its laws of succession and intestacy. These laws govern the distribution of a decedent's estate when there is no estate plan in place. Intestacy schemes typically reflect basic societal values. Yet, perhaps remarkably, the laws of intestacy bear consistency across various countries, continents, and cultures, rewarding the closest surviving family members. Upon closer examination, unique characteristics also emerge. The most startling characteristic of Chinese inheritance law is its willingness to invoke judicial review of an heir's conduct in settling upon distribution percentages to govern intestacy. American succession law also considers …

Leach V. Hyatt: Recasting Indefiniteness, Thomas Simmons

Faculty Publications

No abstract provided.

A New Hope: Tortious Interference With An Expected Inheritance In Rhode Island, Rebecca M. Murphy, Samantha M. Clarke

Roger Williams University Law Review

No abstract provided.

Tax Savings With Income-Based Charitable Requests, Christopher R. Hoyt

Faculty Works

No abstract provided.

Personal Reality: Delusion In Law And Science, Joshua C. Tate

Faculty Journal Articles and Book Chapters

The concept of an insane delusion appears in several branches of the law, including contracts, gifts, and wills. Critics of the traditional doctrine have made compelling arguments in favor of its modification or abolition in the context of wills, given that it is often used as an excuse to substitute the values of jurors for those of the testator. Moreover, recent scientific studies have shown correlations between delusions and other cognitive impairments, calling into question the need for an independent doctrine of insane delusion. Nevertheless, there is evidence that not all deluded individuals have additional cognitive biases, and those who …

Social Control Of Wealth In Antebellum New York, William P. Lapiana

Articles & Chapters

No abstract provided.

Wills & Trusts, Gerry Beyer

SMU Annual Texas Survey

No abstract provided.

The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton

Faculty Scholarship

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs—the last will of Dr. Jekyll. This will so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that he is impelled to seek the truth behind his friend’s relationship to Hyde. …

In States We "Trust": Self-Settled Trusts, Public Policy, And Interstate Federalism, Brendan Duffy

Northwestern University Law Review

Over the last twenty years, domestic asset protection trusts have risen in popularity as a means of estate planning and asset protection. A domestic asset protection trust is an irrevocable trust formed under state law which enables an independent trustee to allocate money to a class of

persons, which includes the settlor.

Since Alaska first enacted domestic asset protection legislation in 1997, fifteen states have followed its lead. The case law over the last twenty years addressing these trust mechanisms has, however, been surprisingly sparse. A Washington bankruptcy court decision, In re Huber, altered this drought, but caused more confusion …

The Development Of The Wife's Cause Of Action For Loss Of Consortium

The Catholic Lawyer

No abstract provided.

The Class Action As Trust, Sergio J. Campos

Washington Law Review

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings. …

The Class Action As Trust, Sergio J. Campos

Washington Law Review

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings. …

Put Privity In The Past: A Modern Approach To Determining When Washington Attorneys Are Liable To Nonclients For Estate Planning Malpractice, Kaitlyn C. Kelly

Washington Law Review

Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney’s alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries’ anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate planning attorney’s client is a testator, not a testator’s intended beneficiaries; thus, the intended beneficiaries are not in privity of contract with the attorney. Rather, the only individual in privity with the accused attorney is usually deceased at the time of a malpractice lawsuit. If a …

Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging …

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

Mercer Law Review

This Article describes selected cases and significant legislation from the period of June 1, 2015 through May 31, 2016 that pertain to Georgia fiduciary law and estate planning.

Saving The Farm Or Giving Away The Farm: A Critical Analysis Of The Capital Gains Tax Preferences, Phyllis C. Taite

San Diego Law Review

This Article addresses some of the inequities and offers a multi-faceted proposal to raise revenue and incentivize preferences for a more balanced approached to tax policy. First, I advance a proposal that offers solutions to shift certain aspects of the capital gains tax preferences toward the middle and lower class. To balance the costs, I then propose an option to phase out or eliminate other preferences that primarily benefit the wealthiest taxpayers. This balanced approach will allow the government to raise revenue and change the capital gains tax preferences from a rewards to an incentive-based system. Part II of this …

Let My Trustees Go! Planning To Minimize Or Eliminate Virginia And Other State 12 Income Taxes On Trusts (Outline), Richard W. Nenno

William & Mary Annual Tax Conference

No abstract provided.

Let My Trustees Go! Planning To Minimize Or Eliminate Virginia And Other State Income Taxes On Trusts (Powerpoint), Richard W. Nenno

William & Mary Annual Tax Conference

No abstract provided.

Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey

University of Richmond Law Review

No abstract provided.

Foreclosure Of A Deed Of Trust In Virginia, Doug Rendleman

University of Richmond Law Review

This article deals with foreclosure of a deed of trust in Virginia.

The Introduction discusses the deed of trust or mortgage as a social

and political institution and the foreclosure crisis that seems

to be ending. Part I is a brief history of mortgage law. It provides

a short history of the modern mortgage system in the United

States. Part II follows with a description of the approach that

Virginia takes to mortgages. It localizes the mortgage institution

to Virginia and introduces Virginia's vocabulary and technical details,

the deed of trust, and the parties' rights and obligations.

Part III provides …

The Will To Prevail: Inside The Legal Battle To Save Sweet Briar, William H. Hurd, Ashley L. Taylor Jr., Nancyellen Keane, Stephen C. Piepgrass, C. Reade Jacob Jr., James M. Giudice, J. Westwood Smithers Iii

University of Richmond Law Review

Part I provides an in-depth factual overview, beginning with the Sweet Briar College's founding in the early 1900s. The commentary then turns to the controversial decision to close and discusses the facts and legal theories of the case, the decisions by the circuit court and the Supreme Court of Virginia, and the eventual settlement that kept the school alive.

In Part II, the discussion shifts to the landmark nature of this case, not only for Sweet Briar College, but also for other Virginia colleges and non-profits around the country. The essay analyzes the legal questions arising from the case, including …

The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko

Florida Law Review

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by his contest, seeks to increase his inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that a will is not a contract and the opposition to enforcement of …

Non-Charitable Purpose Trusts: Past, Present, And Future, Richard C. Ausness

Law Faculty Scholarly Articles

This Article focuses on non-charitable purpose trusts and how they enable estate planners to better carry out their clients’ objectives. Specifically, it explores the history of non-charitable purpose trusts and summarizes the differences between private trusts, charitable trusts, and non-charitable purpose trusts. This Article also examines the treatment of non-charitable purpose trusts in England and the United States prior to the promulgation of the Restatement of Trusts in 1935. This Article surveys the recent adoption of non-charitable purpose trust provisions in the Uniform Trust Code and various Restatements and gives advice on drafting the trust instruments. Lastly, this Article concludes …

Trust Accounting Products: A Necessity For Your Lawyer Toolkit, Darla Jackson

Other Faculty Publications

No abstract provided.

Speaking From The Grave. Should Copyright Listen?, Jessica Silbey

Faculty Scholarship

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s …

Statutory Heirs Apparent?: Reclaiming Copyright In The Age Of Author-Controlled, Author-Benefiting Transfers, Tonya M. Evans

West Virginia Law Review

No abstract provided.

Land, Slaves, And Bonds: Trust And Probate In The Pre-Civil War Shenandoah Valley, Alfred L. Brophy, Douglas Thie

West Virginia Law Review

No abstract provided.