Estates and Trusts Commons^™

Professor Elaine Gagliardi On The Magical Power Of Appointment: Allows Trustor To Achieve Targeted Tax Consequences And Flexibility Of Control, Elaine H. Gagliardi

Faculty Journal Articles & Other Writings

As children, and sometimes as adults, we wish for magical powers to order the world in the way we want. Estate planners can make that wish come true for some clients and beneficiaries with judicious use of powers of appointment. Powers of appointment are uniquely suited to achieving targeted planning goals and increasing trust flexibility. Planning techniques, old and new, including the oft used Crummey trust1 and the more recently developed array of acronym trusts designed to achieve specific tax consequences, such as the intentionally defective grantor trust (IDGT)2 and the Delaware incomplete non-grantor trust (DING)3 to name a few, …

Panel 1: Probate Issues, Post-­Obergefell V. Hodges, Susan Tate, Charlie Yovino, Denise Vanlanduyt, Lori Surmay, Sonja R. West

Working in the Public Interest Conferences

No abstract provided.

Selective Issues In Effective Medicaid Estate Recovery Statutes, Raymond C. O'Brien

Catholic University Law Review

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will …

Ahead Of The Curve: Promoting Land Tenure Security In Sub-Saharan Africa To Protect The Environment, Andrew R. Falk

Seattle Journal for Social Justice

No abstract provided.

Mapping Chinese Trusts With A Patrimony Compass, Thomas Simmons

Faculty Publications

Review of: Kai Lyu, Re-Clarifying China's Trust Law: Characteristics and New Conceptual Basis, 36 Loy. L.A. Int'l & Comp. L. Rev. 447 (2015).

Inheritance Law And The Marital Presumption After Obergefell, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Recharging Adult Guardianship Reform: Six Current Paths Forward, Erica Wood

Journal of Aging, Longevity, Law, and Policy

No abstract provided.

Foreclosure Of A Deed Of Trust In Virginia, Doug Rendleman

Scholarly Articles

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 …

Medicaid Planning In Idaho, John A. Miller

Articles

No abstract provided.

Recent Development: Sieglein V. Schmidt: Pursuant To § 1-206(B) Of The Estates And Trusts Article, Artificial Insemination Encompasses In Vitro Fertilization Using Donated Sperm; A Court May Use The Goldberger Factors To Determine Voluntary Impoverishment; A Trial Court Can Issue A Permanent Injunction For Harassment Based On § 1-203(A) Of The Family Law Article., Virginia J. Yeoman

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure. Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016). The court also held that the circuit court did not abuse its discretion in finding the husband to be voluntarily impoverished or in issuing a permanent injunction based on harassment. Id.

Valuation, Values, Norms: Proposals For Estate And Gift Tax Reform, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In their contributions to this Symposium, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system. Professor Dodge and Professor Gerzog are especially interested in accuracy in valuation, and advance specific proposals with respect to split-interest transfers and family limited partnerships. Professor Dodge makes an additional proposal to improve the generation-skipping transfer tax system, an understudied area of the law. Professor Gerzog's Symposium contribution draws particular attention to the legal fiction on which the estate and gift tax marital deductions rely. She would restrict the availability of the …

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Foreword: The Supreme Court's Estate Planning Jurisprudence, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax …

Trial And Heirs: Antemortem Probate For The Changing American Family, Katherine M. Arango

Brooklyn Law Review

The notion of the traditional American family has changed due to complex family structures formed through remarriages, cohabitation, and same-sex couples. Freedom of disposition is a guiding principle of inheritance law, whereby society recognizes the value in protecting one’s ability to acquire and transfer personal property at death. However, intestacy statutes are antiquated and have failed to keep pace with the rise of the modern American family, thus leaving the right to freedom of disposition uncertain and vulnerable for a large population. A will is a way of opting out of intestacy, but given that a will is frequently the …

Slaying Contingent Beneficiaries, Kevin Bennardo

University of Miami Business Law Review

This Article analyzes what impact, if any, the slaying of one beneficiary by another should have on distribution of a decedent’s property. This issue could arise in a variety of conveyances, such as intestate succession, wills, pay-on-death bank accounts, transfer-on-death securities, or life insurance proceeds. Based on equity, the Restatement (Third) of Restitution takes the position that a beneficiary may never move forward in the line of succession as the result of a slaying. This result is thought to be an extension of the traditional “slayer rule,” which disallows a slayer from inheriting from her victim.

The Article argues for …

A Review Of Alexander A. Bove, Jr., Trust Protectors: A Practice Manual With Forms, Richard C. Ausness

Law Faculty Scholarly Articles

Alexander Bove has recently written a thoughtful, comprehensive and practical book entitled Trust Protectors: A Practice Manual with Forms. The book describes the powers and rights of a trust protector, as well as the fiduciary duties and potential liabilities associated with this office. In addition, the author examines the relationship between the trust protector and the trustee. He also discusses the role of the courts in this area and identifies a number of practical issues that should be considered by lawyers when they draft trust instruments that contemplate the appointment of a trust protector. Finally, the author provides extensive …

Planned Parenthood: Adult Adoption And The Right Of Adoptees To Inherit, Richard C. Ausness

Law Faculty Scholarly Articles

This Article is concerned with the effect of adult adoptions on the inheritance rights (in the broad sense of that term) of adult adoptees. The Article contends many adult adoption statutes assume the existence of a parent-child relationship in which the adopter is the “parent” and the adoptee is a “child” even though this is not true of all adult adoption cases. In addition, legislatures and courts frequently fail to differentiate between “quasi-familial” adoptions and “strategic” adoptions, particularly where inheritance rights are concerned.

International Implications Of The Will As An Implied Unilateral Arbitration Contract, S. I. Strong

Faculty Publications

In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that "a consensus is developing that a testator may not compel arbitration of contests to her will"' appears somewhat premature, given a number of probate cases not discussed by Professor Spitko …

An Introduction To Mediation For Estate Planners, Alexandra Carter

Faculty Scholarship

Mediation is a voluntary, informal, and confidential discussion in which a neutral facilitator assists two or more parties toward achieving a resolution of the conflict existing between them. As a conflict resolution tool, mediation serves a number of purposes, including providing parties the opportunity “to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.”

Mediation is a flexible process, and so there can be as many “types” of mediations as there are parties and conflicts. For example, the definition of mediation is broad enough to include a dispute …

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

Faculty Publications

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 her contest, seeks to increase her 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 the will is not a contract and the opposition to enforcement of …