Estates and Trusts Commons^™

A Comparative Guide Of Where To Die: Should The United Kingdom Repeal Its Inheritance Tax?, William T. Thistle

Georgia Journal of International & Comparative Law

No abstract provided.

Elaine Hightower Gagliardi On Flipping The Lens Of Estate Planning: An Examination Of The Effectiveness Of Lifetime Transfers To Achieve Federal And State Tax Savings, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

Estate planners are recalibrating their planning focus in response to recent tax modifications at the federal and state levels. The need to refocus planning emanates from changes wrought by recent federal tax acts, beginning in 20011 and ending in 20132 with enactment of “permanent” provisions which increase the basic exclusion amount for federal estate and gift tax and generation skipping transfer tax exemption to an inflation adjusted $5,340,000 as of 2014,3 institute the portability election for federal estate tax purposes,4 alter the transfer tax rate to essentially a flat 40 percent,5 and eliminate the state death tax credit in favor …

Teaching Trusts And Estates, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

A Principled And Structured Approach For Ascertaining Beneficial Interests In Property Disputes: Chan Yuen Lan V See Fong Mun [2014] Sgca 36, Alvin W. L. See

Research Collection Yong Pung How School Of Law

In Chan Yuen Lan v See Fong Mun [2014] SGCA 36, the Court of Appeal provided important clarifications about the relationship between a resulting trust and a common intention constructive trust for the purpose of ascertaining beneficial interests in cases of property dispute. This issue, which has attracted much speculations, was left open in Lau Siew Kim v Yeo Guan Chye Terence [2007] SGCA 54 where the same court merely confirmed the continued relevance of the twin presumptions of resulting trust and advancement.

New York’S Decanting Statute: Helping An Old Vintage Come To Life Or Spoiling The Settlor’S Fine Wine?, David Restrepo

Pace Law Review

The Comment examines trust decanting in four parts. Part I reviews the historical evolution of decanting statutes, first from common law roots, and later focusing on the legislative history of New York’s decanting statute. Part II briefly explains the functionality of section 10-6.6 of the NY EPTL; the “how does it work” explanation of the statute that authorizes decanting. Part III will discuss the many practical uses of the decanting statute. Finally, Part IV will transition into a discussion on how the trustee’s use of this statute not only leaves him in limbo regarding the tax treatment of his actions, …

The Home: Where Our Heart Resides, David M. English

Faculty Publications

Helping a client maximize the use of his or her home for these purposes is no simple task. It requires knowledge of options and resources across many domains. But stepping back and taking a broader look at these strategic opportunities and pitfalls is useful in appreciating the knowledge and skill set needed to competently counsel and represent aging clients. This article looks first at a variety of consumer protection issues, examines the interrelationship between the home and a variety of government benefits, and concludes with a discussion of technology that may enable an elderly person to remain in the place …

The Creeping Federalization Of Wealth-Transfer Law, Lawrence W. Waggoner

Articles

This article appears in a symposium issue published by the Vanderbilt Law Review on The Role of Federal Law in Private Wealth Transfer. Federal authorities have little experience in making law that governs wealth transfers, because that function is traditionally within the province of state law. Although state wealth-transfer law has undergone significant modernization over the last few decades, all three branches of the federal government—legislative, judicial, and executive—have increasingly gone their own way. Lack of experience and, in many cases, lack of knowledge on the part of federal authorities have not dissuaded them from undermining well-considered state law. The …

Disincentivizing Elder Abuse Through Disinheritance: Revamping California Probate Code § 259 And Using It As A Model, Travis Hunt

BYU Law Review

No abstract provided.

Domestic Asset Protection Trusts: A Threat To Child Support?, Trent Maxwell

BYU Law Review

No abstract provided.

Trombetta: The Two Trust Tango, Phyllis C. Taite

Other Faculty Publications

No abstract provided.

Impact Of Uniform Laws On The Teaching Of Trusts And Estates, David M. English

Faculty Publications

Beginning in 1969 with the approval of the Uniform Probate Code (UPC), uniform laws have had a major impact on the teaching of the basic Trusts and Estates course. This is not the place to list the close to thirty uniform acts relating to Trusts and Estates that have been approved. Rather, this Article will focus on the impact that uniform laws have had on the content of what is taught in the Trusts and Estates course. Uniform laws are not written in a vacuum. Like other legislative enactments, they are the product of societal changes and changes in legal …

Can We Trust Trustees? Proposals For Reducing Wrongful Foreclosures, John Campbell

Catholic University Law Review

No abstract provided.

Accidental Inheritance: Retirement Accounts And The Hidden Law Of Succession, Stewart E. Sterk, Melanie B. Leslie

Articles

Americans currently hold more than $9 trillion in retirement savings accounts. Those accounts, together with the family home, are the principal source of wealth for most working and retired Americans. But when a retirement accountholder dies prior to exhausting retirement savings, what governs the distribution of the account? Most often, not the accountholder’s will or trust, but a one-page fill-in- the-blanks beneficiary designation form that the accountholder filled out, typically without advice of counsel, when she or he opened the account.

When accountholders fill out beneficiary designation forms, they are focused on starting a new job or beginning to save …

From Here To Eternity: The Folly Of Perpetual Trusts, Lawrence W. Waggoner

Law & Economics Working Papers

Trusts that can operate for as many as a thousand years or even forever, typically for the benefit of the settlor’s descendants living from time to time, now and in the future, are all the rage in banking and estate-planning circles. Before 1986, when Congress passed the federal generation-skipping transfer tax (GST tax), settlors had little incentive and probably little desire to establish perpetual trusts, even though they were permitted to do so under the law of Wisconsin, South Dakota, or Idaho. The GST tax created an artificial incentive for the wealthy to establish such trusts. The origin of the …

What's Wrong With A Federal Inheritance Tax?, Wendy G. Gerzog

All Faculty Scholarship

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax, but there are serious flaws with that idea. In existing inheritance tax systems, those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; and (3) the persistence of most current valuation distortion abuses. In any inheritance tax model, moreover, there would be significantly decreased compliance rates and increased administrative costs because by focusing on the transferees instead of the transferor, …

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 …

Van Alen: A Reasonable Consistency, Wendy G. Gerzog

All Faculty Scholarship

In Van Alen, the Tax Court held that the duty of consistency required that two of the decedent’s children use the section 2032A basis valuation figures to determine gain on the sale of their interest in the decedent’s ranch, which was left to them in trust. The siblings had argued that their stepmother erroneously completed their father’s estate tax return.

Survivorship Rights In Joint Bank Accounts: A Misbegotten Presumption Of Intent, Gregory Eddington

Marquette Elder's Advisor

The Article addresses the frequently litigated issue of the ownership of joint bank accounts that elderly people may have opened to protect against incapacity or to avoid FDIC insurance limits on single accounts. Despite the strong possibility of these non-donative motives, most states—by statute or court decision—award the accounts to the surviving co-tenants instead of the depositors’ heirs or will beneficiaries. This occurs even when the account contract did not contain language of survivorship and even when there is no evidence that the depositor was offered a contract that would have allowed him or her to choose an agency arrangement. …

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 …

The Uniform Power Of Attorney Act: Not A One-Size-Fits-All Solution, Angela M. Vallario

University of Baltimore Law Review

No abstract provided.

Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann

University of Michigan Journal of Law Reform

This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation …

Shakespeare In The Classroom: How An Annual Student Production Of King Lear Adds Dimension To Teaching Trusts And Estates, Karen E. Boxx

Articles

I always begin the first day of my Trusts and Estates course by discussing the reasons for taking the class. While I note that some students may take the class to help in passing the bar exam or because family members have already asked them to draft wills, my list of reasons instead include: (1) exposure to the fiduciary relationship; (2) the real life ethical dilemmas faced by the lawyers; (3) learning to read and interpret state statutes; and (4) consideration of how law responds to societal changes and governs human relationships. This last reason is critical: Trusts and Estates …

Where Strict Meets Substantial: Oklahoma Standards For The Execution Of A Will, Katheleen R. Guzman

Oklahoma Law Review

No abstract provided.

Save The Wealth! Trust Decanting And Oklahoma, Tara M. Niendorf

Oklahoma Law Review

No abstract provided.

How Deep Are The Springs Of Obedience Norms That Bind The Overseers Of Charities?, Johnny R. Buckles

Catholic University Law Review

No abstract provided.

When Is A Trust Protector A Fiduciary?, Richard C. Ausness

Law Faculty Scholarly Articles

The use of trust protectors has become increasingly popular in the past twenty years. This is largely due to the fact that settlors can use trust protectors to provide more flexibility in trust management, especially for long-term trusts. However, the use of trust protectors is not without some risk. First of all, the legal status of trust protectors is not explicitly recognized in some states. Furthermore, even in those states which do recognize the legality of trust protectors, the nature and extent of their powers is sometimes not always clear. Finally, there is the vexing question of whether trust protectors …

The Digital Death Conundrum: How Federal And State Laws Prevent Fiduciaries From Managing Digital Property, Christina L. Kunz, Damien A. Riehl, James D. Lamm, Peter J. Rademacher

Faculty Scholarship

This article discusses four types of fiduciaries, each of which is affected by the vast growth in and the need to manage digital property. The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and …

Memento Mori: Deaths And Wills, Karen J. Sneddon

Articles

Death. The mere mention of the word sends a shiver down the spine or provokes a nervous giggle. Modern reactions to death range from avoidance, as shown by the abundance of death euphemisms, to fascination, as shown by the number of movies and television shows centered on death, including Twilight's vampires and The Walking Dead's zombies. Estate planning is the legal environment in which a person con.fronts his or her mortality and participates in the formulation of his or her legacy. Contextualizing the experience as a memento mori experience promotes the function of the estate planning process, specifically …

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgender individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law's commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors' rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This Article …

Trust Me? Estate Planning With Revocable Trusts, Bradley E.S. Fogel

Saint Louis University Law Journal

Revocable trusts are one of the most common estate planning techniques. Unfortunately, many advisors use them without considering the merits for the particular client. Like any other estate planning technique, they are appropriate only for some clients.

Typically, a settlor creates and funds a revocable trust during his or her lifetime. The settlor then uses trust funds to pay living expenses. Upon the settlor’s death, the successor trustee administers the trust, collects the settlor’s assets, pays creditors, and distributes the assets to the named beneficiaries. In the optimum case, this is done without any court involvement.

Due to the lack …