Wills Formalities In The Twenty-First Century,
2019
Elisabeth Haub School of Law at Pace University
Wills Formalities In The Twenty-First Century, Bridget J. Crawford
Elisabeth Haub School of Law Faculty Publications
Individuals have executed wills the same way for centuries. But over time, traditional requirements have relaxed. This Article makes two principal claims, both of which disrupt fundamental assumptions about the purposes and functions of wills formalities. First, the traditional requirements that a will must be in writing and signed by the testator in the presence of (or acknowledged before) witnesses have never adequately served their stated purposes. For that reason, strict compliance with formalities cannot be justified by their cautionary, protective, evidentiary, and channeling functions. Reducing or eliminating most of the long-standing requirements for execution of a will is consistent …
The Supreme Court, Due Process And State Income Taxation Of Trusts,
2019
Elisabeth Haub School of Law at Pace University
The Supreme Court, Due Process And State Income Taxation Of Trusts, Bridget J. Crawford, Michelle S. Simon
Elisabeth Haub School of Law Faculty Publications
What are the constitutional limits on a state's power to tax a trust with no connection to the state, other than the accident that a potential beneficiary lives there? The Supreme Court of the United States will take up this question this term in the context of North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust. The case involves North Carolina's income taxation of a trust with a contingent beneficiary, meaning someone who is eligible, but not certain, to receive a distribution or benefit from the trust, who resides in that state. Part I of this Article …
Magical Thinking And Trusts,
2019
Elisabeth Haub School of Law at Pace University
Magical Thinking And Trusts, Bridget J. Crawford
Elisabeth Haub School of Law Faculty Publications
At a time of monumental economic inequality in the United States, wealthy individuals and their tax-motivated behavior have come under significant scrutiny from all corners. In 2019, the Supreme Court issued its first major ruling in over sixty years on the state income taxation of trusts. In North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the Court declined to close what some critics consider to be a major loophole that benefits the trusts that wealthy individuals create for family members. This Article makes two principal claims—one interpretative and the other normative. This Article explains why the …
Conflict-Of-Interest-Infected Virtual Representatives And A Cure,
2019
University of South Dakota School of Law
Conflict-Of-Interest-Infected Virtual Representatives And A Cure, Thomas Simmons
Faculty Publications
The general rule that a person cannot be bound by an agreement or a decree unless she received notice encounters practical difficulties where a person is missing, incompetent, a minor, unascertained, or even unborn. In many trust proceedings, all beneficiaries are necessary parties. But short of appointing a guardian ad litem to represent persons who are difficult to notice, uncertainty and inefficiencies would be encountered were it not for the doctrines of representation and virtual representation. Under these common law doctrines persons -- even if not yet in existence -- can be held to be parties to a proceeding "virtually …
Decision And Persuasion: Re-Conceiving The Role Of The Planner Where Undue Influence Is Suspected,
2019
University of Oklahoma Co
Decision And Persuasion: Re-Conceiving The Role Of The Planner Where Undue Influence Is Suspected, James Milton, Katheleen Guzman
Faculty Articles
No abstract provided.
Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule,
2019
William S. Boyd School of Law, University of Nevada
Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance
Cardozo Arts & Entertainment Law Journal
No abstract provided.
The Decline Of Revocation By Physical Act,
2019
Notre Dame Law School
The Decline Of Revocation By Physical Act, Barry Cushman
Journal Articles
The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This article surveys the place of revocation by physical act in …
How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law,
2019
University of Miami School of Law
How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton
Articles
The author examines clinical studies that use neuroscience technology to study patients in Vegetative States. The studies indicate that some of the patients are, in fact, conscious. The author suggests that this finding is a matter of considerable practical importance for the drafting and execution of end-of-life protocols such as Advance Directives and Living Wills. He recommends that statutes, and other guidance used by patients, caregivers, medical institutions, family members and others to draft and interpret such Directives and Wills, be revised or amended to take account of these results.
Of Piketty And Perpetuities: Dynastic Wealth In The Twenty-First Century (And Beyond),
2019
William & Mary Law School
Of Piketty And Perpetuities: Dynastic Wealth In The Twenty-First Century (And Beyond), Eric Kades
Faculty Publications
For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition of the Rule Against Perpetuities in over half the states along with sharp reductions in, and likely elimination of, the federal estate tax mean that there soon will be no obstacles to creating large pools of dynastic wealth insuring lavish incomes to heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic …
Hb 121 - Property, Wills, Trusts, And Estates,
2018
Georgia State University College of Law
Hb 121 - Property, Wills, Trusts, And Estates, Colt Burnett, Ben Dell'orto
Georgia State University Law Review
The Act amends several aspects of trust law, including updating the application of the Uniform Statutory Rule Against Perpetuities in Georgia by extending the time within which a nonvested property interest or power of appointment must vest from 90 to 360 years. The Act also allows for modifications of a trust without judicial approval in some cases. Many passages are simplified, including the calculation of compensation for a trustee, which can now be modified through different procedures. Finally, the Act codifies the role of trust directors.
Sb 301 - Wills, Trusts, And Administration Of Estates,
2018
Georgia State University College of Law
Sb 301 - Wills, Trusts, And Administration Of Estates, Morgan S. Ownbey, Paul M. Napolitano
Georgia State University Law Review
The Act creates the “Revised Uniform Fiduciary Access to Digital Assets Act,” extends fiduciaries’ powers to include managing tangible property and digital assets, and provides conforming cross-references for a conservator.
Hitting Rewind: The Supreme Court Of Pennsylvania In Trust Under Agreement Of Taylor Signals A Move Away From Modern Developments Of Trust Law By Requiring More Stringent Standards For Corporate Trustee Removal,
2018
Villanova University Charles Widger School of Law
Hitting Rewind: The Supreme Court Of Pennsylvania In Trust Under Agreement Of Taylor Signals A Move Away From Modern Developments Of Trust Law By Requiring More Stringent Standards For Corporate Trustee Removal, Ryan J. Ahrens
Villanova Law Review (1956 - )
No abstract provided.
Wills, Trusts, And Estates,
2018
University of Richmond
Wills, Trusts, And Estates, J. William Gray Jr., Katherine E. Ramsey
University of Richmond Law Review
The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities’ eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations’ administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors’ stock holdings, the disposition of unused tax credits at the taxpayer’s death, and fiduciary qualification without surety. The Supreme Court of Virginia handed …
Compelling Trustees To Exercise Their Discretion: A Principle Of Non-Intervention?,
2018
Singapore Management University
Compelling Trustees To Exercise Their Discretion: A Principle Of Non-Intervention?, Hang Wu Tang
Research Collection Yong Pung How School Of Law
This article explores the limitsof the principle of non-interference and examine situations where the courtshave overridden the discretion of the trustee and compelled the trustee to actin a particular manner. While there havebeen numerous instances where the courts have avoided the trustee’s act, thecases where the courts have actually compelled a trustee to exercise a power ina particular manner are relatively few. The thesis of this article is that amore helpful way to conceptualise the philosophy behind the judicial control ofa trustee’s discretion is not to say that the court is bound by a so-calledprinciple of non-interference; rather, the contention …
Do You Tru$T Your Children: A Parent’S Final Dilemma,
2018
Cornell Law School, J.D. Candidate 2019
Do You Tru$T Your Children: A Parent’S Final Dilemma, J. Sam Rodgers
Cornell Journal of Law and Public Policy
Incentive trusts developed out of unique American inheritance laws and have become a regarded estate planning tool. Policy, observation, and research suggest that they are inadequate, although still uncritically used. A Hidden Bonus Trust is an improved solution that builds on the shortcomings of incentive trusts. Hidden Bonus Trusts quench parents’ desires to leave legacies and motivate troubled beneficiaries.
The Holy Grail? Designing And Teaching An Integrated Doctrine And Drafting Course,
2018
Cleveland-Marshall College of Law, Cleveland State University
The Holy Grail? Designing And Teaching An Integrated Doctrine And Drafting Course, Claire C. Robinson May
Law Faculty Articles and Essays
I’ve long considered teaching doctrine and skills together in a single course to be the holy grail of legal education. If we could do so successfully, we might make significant strides in providing a legal education that better prepares our students to be practicing lawyers. In spring 2016, my colleague Professor April Cherry and I took the plunge and collaboratively offered a course titled Estates and Trusts: Doctrine and Drafting at our institution, Cleveland-Marshall College of Law. This essay describes our experience and lessons learned pursuing the holy grail.
Eb-5 Visa Regulation And Controversy: How An Immigration-Securities Hybrid Visa Has Been Used To Fund Real Estate Ventures,
2018
Benjamin N. Cardozo School of Law
Eb-5 Visa Regulation And Controversy: How An Immigration-Securities Hybrid Visa Has Been Used To Fund Real Estate Ventures, Rachel Behar
Cardozo International & Comparative Law Review
The EB-5 visa program, designed to stimulate the U.S. economy through job creation and capital investment by foreign investors, has become a controversial tool often misused to fund luxury real estate projects in affluent areas. While the program has contributed significantly to the economy, its implementation has strayed from its original intent, leading to criticism over issues like gerrymandering of Targeted Employment Areas (TEAs), inadequate securities regulation, and fraud risks. The article calls for reforms to align the program more closely with its intended purpose of aiding underserved communities.
Bankruptcy Fiduciary Duties In The World Of Claims Trading,
2018
Brooklyn Law School
Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow
Brooklyn Journal of Corporate, Financial & Commercial Law
In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee’s administration of a debtor’s estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of “bankruptcy M&A.” My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source …
In Re Connell Living Trust, 134 Nev. Adv. Op. 73 (Sep. 13, 2018) (En Banc),
2018
University of Nevada, Las Vegas -- William S. Boyd School of Law
In Re Connell Living Trust, 134 Nev. Adv. Op. 73 (Sep. 13, 2018) (En Banc), Pengxiang Tian
Nevada Supreme Court Summaries
The Court determined that a no-contest clause in a trust does not foreclose a beneficiary’s interest if the beneficiary, acting as the trustee, breaches his or her fiduciary duty.
Equitable Relief For Erisa Benefit Plan Designation Mistakes,
2018
The Catholic University of America, Columbus School of Law
Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien
Catholic University Law Review
Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …
