Estates and Trusts Commons^™

Comments: Estate Planning For The Posthumously Conceived Child: A Blueprint For The Sperm Donor, Brooke Shemer

University of Baltimore Law Review

No abstract provided.

Inside Wills And Trusts: What Matters And Why, William P. Lapiana

Books

Inside Wills and Trusts: What Matters and Why offers students a concise, student-friendly study aid that provides a big-picture view of how all of the essential elements of this field fit together as part of a coherent framework of legal theory and practice. Using a wide variety of pedagogical aids, this new addition to the successful Inside Series offers basic coverage of the main themes of wills and trusts law, focusing on what matters and why, while providing students multiple opportunities for review.

For Love Or Money? Legal Treatment Of Golddiggers, Stewart E. Sterk

Articles

No abstract provided.

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Publications

No abstract provided.

Three Myths For Aging Copyrights: Tithonus, Dorian Gray, Ulysses, Robert Spoo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong

Vanderbilt Journal of Transnational Law

Once considered nothing more than "mere" estate-planning devices, trusts play a large and growing role in the international economy, holding trillions of dollars of assets and generating billions of dollars of income each year. However, the rising popularity of both commercial and noncommercial trusts has led to an explosion in hostile trust litigation, leading settlors and trustees to search for new and less expensive ways to resolve trust-related disputes.

One possible solution involves use of a mandatory arbitration provision in the trust itself. However, the unique, multiparty nature of trust disputes often makes this sort of arbitration highly controversial.

This …

Change We Can't Believe In ... Or Afford: Why The Timing Is Wrong To Reduce The Estate Tax On The Wealthiest Americans, Phyllis C. Taite

Faculty Articles

At the end of the year 2008 the United States was in the midst of an economic storm. The country started going through its worst financial state since the Great Depression. Historically, transfer taxes were instated specifically to raise revenue during the country’s financial time of need. The temporary repeal during the 2010 tax year occurred during a time when the country was experiencing an economic storm, a time when the country could least afford to forego the additional revenue. Consequently, the timing of the temporary repeal was in direct contradiction to the original purpose of the estate tax. While …

Who Is Afraid Of Perpetual Trusts?, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Professor Lawrence Waggoner nominally aims his critique at wealthy individuals who desire perpetual trusts and the lawmakers who enable them by passing favorable legislation. He lodges five specific objections: (1) after a certain period of time, the beneficiaries of perpetual trusts will be insufficiently related to the trust creator; (2) after a certain period of time, there will be too many beneficiaries of a perpetual trust; (3) perpetual trusts will be expensive to manage; (4) outdated trust instruments will hamper management of perpetual trusts; and (5) trustee turnover will negatively impact perpetual trusts. This Essay considers each of his objections …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Journal Articles

Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like “dead …

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, 2010 through May 31, 2011 that pertain to Georgia fiduciary law and estate planning.

Flp Loss, But Crummey Win, Wendy G. Gerzog

All Faculty Scholarship

In Turner the Tax Court determined that section 2036 applied to the decedent’s transfers of assets to his family limited partnership but that the insurance premiums he paid indirectly to his insurance trust qualified for the annual exclusion.

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

University of Richmond Law Review

The 2011 session of the Virginia General Assembly enacted wills, trusts, and estates legislation that: (i) eliminated a potential federal transfer tax trap in inter vivos marital trusts, (ii) interpreted transfer tax formula clauses in light of recent changes in federal law, and (iii) adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Three other legislative enactments and seven opinions of the Supreme Court of Virginia during the twelve months ending June 1, 2011, addressed issues affecting this field. In addition to addressing those developments, this article summarizes a recent federal district court opinion that dealt with a significant …

Estate And Probate Law—Testamentary Disposition Of Non-Probate Assets: Whether Iras Are Comparable To Life Insurance Policies And Whether Testators Should Be Able To Change An Ira Beneficiary By Will. Nunnenman V. Estate Of Grubbs, 2010 Ark. App. 75, __ S.W.3d __., Ashley L. Haskins

University of Arkansas at Little Rock Law Review

No abstract provided.

Kennedy V. Plan Administrator For Dupont Savings & Investment Plan: Anti-Alienation And Anti-Cutback Rules, Christina Payne-Tsoupros

W&M Law Student Publications

No abstract provided.

The New Super-Charged Pat (Power Of Appointment Trust), Wendy G. Gerzog

All Faculty Scholarship

This article proposes to repeal the QTIP provisions in order to collect revenue now for transfers that are essentially transfers to third parties and not to the decedent's spouse. Because there are advantages of increased flexibility attendant to a QTIP as opposed to a PAT, this article proposes to take those repealed QTIP benefits and attach them to the PAT, which would greatly enhance that marital deduction trust form. A super-charged PAT would thereby be able to preserve the decedent's GST tax exemption (like a reverse QTIP), create a decedent's by-pass trust by allowing a PAT (or a partial PAT) …

What Sex-Ed Didn't Teach You: Addressing The Inadequacies Of West Virginia Code Section 42-1-8 And The Future Of Posthumously Conceived Children, Andrew S. Felts

West Virginia Law Review

No abstract provided.

Joint Bank Accounts In New York: Confusion, Discrimination, And The Need For Change, Carolyn Satenberg

Cardozo Public Law, Policy & Ethics Journal

The note argues that New York's legal presumption of joint tenancy in joint bank accounts disproportionately burdens same-sex couples, leading to unfair gift and estate tax implications. It advocates for reforming New York's approach to align with the Uniform Probate Code (UPC), which better reflects depositor intent and reduces discrimination. The current system, compounded by federal policies like the Defense of Marriage Act (DOMA), exacerbates financial and emotional hardships for same-sex couples in tax and probate matters.

The Limitations Of An Economic Agency Cost Theory Of Trust Law, Lee-Ford Tritt

Cardozo Law Review

Should the donor's specific interests or potentially conflicting theoretical economic principles control the creation and administration of trusts? In a highly influential article advancing an agency cost framework for trust law, Harvard Law Professor Robert Sitkoff suggests retooling trust law to focus on wealth maximization and to minimize costs stemming from an assumed misalignment of the interests between deemed "principals" and "agents" within the trust setting. An agency cost theory of trust law, however, reduces the complex, highly idiosyncratic, and emotionally charged nature of trust law into a simple business relationship. Given the special nature of trust law and practice …

Referenda And The District Of Columbia's Human Rights Act: Voting On Same-Sex Marriage In The Nation's Capital, Jacob Stewart

Legislation and Policy Brief

Beginning with Massachusetts in 2003, the courts and legislatures of many states have had to decide whether same-sex marriage is or should be a fundamental right under their respective constitutions.  Although only five states and the District of Columbia legally perform same-sex marriages, a few other jurisdictions are in the process of proposing laws moving in that direction.  However, the vast majority of states are holding fast to the traditional heterosexual definition of marriage.  Thirty-eight states have adopted some sort of Defense of Marriage Act, constitutional amendment, or similar measure that defines marriage as the union between one man and …

Of Charities And Clawbacks: The European Union Proposal On Successions And Wills As A Threat To Charitable Giving, Aaron Schwabach

Law Faculty Scholarship

In the United Kingdom, and to a lesser extent the United States, an inter vivos gift, once given, cannot be reclaimed by the giver's heirs. In civil law countries the situation is quite different: Not only spouses, but issue and in some cases even ascendants, are entitled to a forced share of a decedent's estate--and these forced shares are assessed against a notional “estate” that includes the testator's inter vivos gifts. If the total of these forced shares exceeds the amount actually available in the decedent's estate at death, the recipients of the gifts, or their successors, may be forced …

Credit Shelter Trusts And Probability: Does One Exclude The Other, Marc S. Bekerman

Articles & Chapters

In the September/ October 2009 issue of Probate & Property, the author published an article titled What Portability Means to Trust and Estate Professionals, contemplating the possibility that the estate of a surviving spouse might be permitted to use the unused estate tax applicable exemption amount from the estate of his or her predeceased spouse. This concept has been referred to as portability of the applicable exemption amount, and the article identified several issues that might arise should portability be permitted. This article is a follow-up to that prior article because portability has indeed been enacted as part of the …

Shapiro: Palimony And The Estate Tax, Wendy G. Gerzog

All Faculty Scholarship

In Estate of Shapiro, the Ninth Circuit held that an individual had a valid palimony claim under Nevada state law. However, the issue was whether the decedent’s estate qualified for a deduction for that claim under federal estate tax law.

The Financial Costs And Legal Repercussions Of Marriage Inequality, Lisa Milot, Kim Mellen

Working in the Public Interest Conferences

Discusses the financial and legal consequences that couples face when their unions are not recognized by the State.

Agents In Secrecy: The Use Of Information Surrogates In Trust Administration, Lauren Z. Curry

Vanderbilt Law Review

Trusting another to look after one's best interest when money is at stake is difficult in many different situations. This is true in the area of trust administration as well. As with most areas of law and regulation, trust law addresses this concern primarily through the requirement of information disclosure. Information disclosure to trust beneficiaries has become a heated issue among trust scholars and practitioners. Interestingly, as fundamental as disclosure may be in trust administration, the duty to disclose is not precisely defined at common law and is far from uniform. This creates a profusion of problems for trustees who …

Employee Pension Rights And The False Promise Of Trust Law, Elizabeth Shilton

Dalhousie Law Journal

This article explores the jurisprudence of the Supreme Court of Canada on employment pension trusts. I argue that the Court's 1994 decision in Schmidt v. Air Products, which embraced trust law as a tool for resolving pension surplus ownership disputes, held out the promise that courts would use fiduciary principles to shape pension rights for employees and protect those rights against employer self-interest. That promise has failed to bear much fruit. Since Schmidt, the Court has moved away from a conception of trust law as a fetter on employer power towards a flexible conception in which employer trust obligations are …

Linton Reversed: Indirect Gifts And The Step Transaction Doctrine, Wendy G. Gerzog

All Faculty Scholarship

The Ninth Circuit recently reversed the district court’s summary judgment in favor of the government in Linton on the issues of indirect gift and the applicability of the step transaction doctrine. The circuit court’s analysis focused on the taxpayers’ donative intent. With that emphasis, the Ninth Circuit remanded the case to the district court to determine the sequence of the relevant transactions.

The Game Is Afoot!: The Significance Of Donative Transfers In The Sherlock Holmes Canon, Stephen R. Alton

Faculty Scholarship

This article presents a recently discovered and previously unpublished manuscript written by John H. Watson, M.D., and annotated by Professor Stephen Alton. Dr. Watson’s manuscript records an extended conversation that took place between the good doctor and his great friend, the renowned consulting detective Mr. Sherlock Holmes, regarding issues of gratuitous transfers of property – issues involving inheritances, wills, and trusts – that have arisen in some of the great cases solved by Mr. Holmes. This felicitous discovery confirms something that Professor Alton has long known: these gratuitous transfer issues permeate many of these adventures. Often, the action in the …

Public Policy And Antisocial Testators, Ronald J. Scalise Jr.

Cardozo Law Review

This Article challenges the conventional wisdom that "deadhand" control by testators in certain situations is violative of public policy and should not be enforced. Specifically, it argues that many legacies conditioned on a beneficiary acting a certain way or doing a certain thing, such as not marrying or remarrying, should be enforced. This Article argues that the modern approach of disallowing conditions or restrictions on marital freedom in legacies is a product of a bygone era and that the reasons employed for invalidating such conditions are no longer sufficient justifications in the modern day for the current approach of courts. …

Recent Developments Concerning The Estate Tax Inclusion Of Transfers To A Family Limited Partnership, Brent B. Nicholson

Akron Tax Journal

After a brief examination of the statutory and regulatory background, this paper will summarize the significant cases prior to Shurtz, the significant cases in the last year, discuss the facts and holdings of Shurtz, and then outline the coordinates that have emerged to guide taxpayers

Trusts & Estates (Annual Survey Of Michigan Law, June 1, 2011 - May 31, 2012), Susan E. Cancelosi

Law Faculty Research Publications

The Survey period began only two months after the Michigan Trust Code took effect. Thus, attorneys handling matters subject to the new trust law were only beginning to delve into how their practices will change. At the same time, estate planners who handle larger estates spent the first part of the Survey period on edge about federal estate tax uncertainty. Although Congress in mid-December 2010 did act to extend the estate tax relief of the past decade, it did so only temporarily, leaving many questions for future planning. With the new Michigan Trust Code and the federal estate tax changes, …