Estates and Trusts Commons^™

The Wrongheadedness Of The Poms Pooled Trust Rules And An Unfortunate But Recently Noted Chinese Parallel, Thomas Simmons

Faculty Publications

Supplemental needs trusts of the pooled trust variety have offered important dignity-enhancing protections for individuals with disabilities for several decades. A pooled trust, properly structured according to Congressional requirements, allows the wealth of an individual with disabilities to be overseen by an independent third party trustee, supplementing without displacing means-tested government programs like Medicaid and Supplemental Security Income. Beginning in 2012, the Social Security Administration imposed new burdensome requirements on pooled trusts through its informal POMS manual. Those new requirements have intentionally or unintentionally eliminated as a practical matter the availability of pooled trusts in many states. This unfortunate result …

Wills Above Ground, Thomas Simmons

Faculty Publications

The widespread adoption of electronic court filing systems allow for easier and more efficient views of the rich data of probate proceedings. Wills Law on the Ground by Professor David Horton, published in the UCLA Law Review, highlights both the potential and some of the inherent limitations of empirical research in the law of wills. Wills law has been the battleground of formalists and functionalists over the last half century, with both sides bearing the banner of testator intent, but neither backing up their proposals or counterproposals with much hard data about which better achieves their common aim. Professor Horton …

You Can't Choose Your Family, But You Should Choose Your Co-Tenants: Reforming The Upc To Benefit The Modest- Means Family Cabin Owner, Lisa C. Willcox

University of Colorado Law Review

No abstract provided.

Irresolute Testators, Clear And Convicing Wills Law, Jane B. Baron

Washington and Lee Law Review

Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence. This Article is the first to examine how courts have applied the clear and convincing …

An Empirical Study Of Modification And Termination Of Conservation Easements: What The Data Suggest About Appropriate Legal Rules, Gerald Korngold, Semida Munteanu, Lauren Smith

Articles & Chapters

The acquisition of conservation easements by nonprofit organizations (“NPOs”) over the past twenty-five years has revolutionized the preservation of American land. Recently, however, legislatures, courts, practitioners, and commentators have debated whether and how conservation easements should be modified and even terminated. The discussion has almost always been on a theoretical level without empirical grounding and has sometimes generated much heat but little light. The discussion has lacked the necessary empirical context to allow legislatures and courts to thoughtfully develop resolutions to these issues free from sloganeering and posturing.

This article provides and analyzes a previously uncollected dataset that offers guidance …

From Idiots And Lunatics To Incapacitated Persons And Respondents: The Evolution Of Guardianship Law In Rhode Island, Mark B. Heffner

Roger Williams University Law Review

No abstract provided.

What Are Aging Parents Caring For Adult Children With Disabilities To Do? A Comprehensive Framework For A Healthy, Stable, Financially Sound Future, Jennifer M. Kirby-Mclemore

Roger Williams University Law Review

No abstract provided.

Running Past Landmines--The Estate Attorney's Dilemma: Ethically Counseling The Client With Alzheimer's Disease, Joseph Karl Grant

Journal Publications

This Article examines the ethical dilemmas faced by attorneys who represent clients suffering from Alzheimer's disease. To do so, this Article raises three (3) hypothetical case studies,and applies the ABA Model Rules of Professional Conduct, and the American College of Trust and Estate Counsel ("ACTEC") Commentaries, where appropriate, to those hypothetical case studies. Additionally, this Article proposes initiatives to ameliorate the lack of awareness and discussion of Alzheimer's disease in the law school curriculum, and finally, modest initiatives that the practicing bar can embrace to further a discussion and awareness among practicing attorneys about the ethical dilemma attorneys face in …

Probating Prince’S Estate: Who Will End Up With The Singer’S Substantial Intellectual Property?, J. Gordon Hylton

Cybaris®

No abstract provided.

Minimizing Probate-Error Risk, Mark Glover

University of Michigan Journal of Law Reform

Probate-error risk is the possibility that a court will incorrectly assess the authenticity of a will. By prescribing the method courts use to evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When a court validates an inauthentic will, it creates a false-positive outcome. When a court invalidates an authentic will, it creates a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors. This framework has been …

Dependent Disclaimers, Katheleen Guzman

Faculty Articles

No abstract provided.

Defending Dependent Disclaimers, Katheleen Guzman

Faculty Articles

No abstract provided.

The Revised Uniform Fiduciary Access To Digital Assets Act: Has The Law Caught Up With Technology?, Elizabeth Sy

Touro Law Review

No abstract provided.

Commentaries On The Model Rules Of Professional Conduct, Thomas Andrews, Karen Boxx

Books

This Fifth Edition of the ACTEC Commentaries continues the tradition of providing guidance on the Model Rules of Professional Conduct particular to estate and trust practitioners. The Fifth Edition update to the Commentaries takes account of amendments to the Model Rules adopted since the 2005 Fourth Edition, including those proposed by the American Bar Association Commission on Ethics 20/20 as adopted by the ABA in 2012 and 2013. It is current through August 31, 2015 as there have been no amendments to the Model Rules since 2013.

In addition to these updates, we have added Commentary and Annotations to four …

Deaccessioning: A Pragmatic Approach, Ardis E. Strong

Journal of Law and Policy

Art museums are curators of ideas, preservers of culture, and educators on the evolving aesthetics and morals of society. As such, they play an important role in contemporary society and should be accessible to a wide and diverse audience. One important debate in how museums best serve the public interest involves the museum practice of deaccessioning. Historically, policies governing the proceeds museums receive when they deaccession (or remove) work from their collection have strictly limited the use of these funds to the purchase of new art. This policy is based on the idea that museums hold art for the public …

In Re Guardianship & Estate Of Echevarria, 132 Nev. Adv. Op. 45 (June 30, 2016), Paul George

Nevada Supreme Court Summaries

Distribution of estate funds under NRS Chapter 159 or a court’s distribution order requires a district court finding identifying the source of the funds. A valid stipulation requires mutual assent either through the presence of all interested parties or a signed writing showing the assent of the party against whom the stipulation is offered.

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

Scholarly Articles

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 …

Toward A Reality-Based Estate Tax, Wendy C. Gerzog

All Faculty Scholarship

Currently, the estate tax does not accurately value the property and transactions that it is meant to cover. Additionally, the marital and charitable deductions do not reflect actual associated transfers, instead skewing their benefits away from their purported beneficiaries. This Article proposes reforming the estate tax by eliminating these sources of unreality and distortion, and to make the current estate tax a reality-based tax. Through six specific proposals, the Article identifies solutions to the problems associated with testamentary transfers, puts forth alternative methods of valuation to prevent gaming of transfer taxes, and offers significant modifications to two deduction provisions.

Property's Immortality, Shelly Kreiczer-Levy

Cardozo Journal of Equal Rights & Social Justice

The law ofpost most-mortem transfers assumes an autonomous individual, free to will their property as they see fit. This Article offers a relational critique of this legal reality, and highlights the implications ofsuch a critique for gender equality. Although property's role in supporting relationships and facilitating cooperation has long been celebrated, post-mortem transfers pose a challenge to relational legal theory. It is commonly held that death puts a stop to all relationships and defies all relational commitments. This Article builds on a different perception of death, and argues that the need to transcend mortality is profoundly relational. Property-related projects can …

"Death Tax" Politics, Michael J. Graetz

Faculty Scholarship

In his Keynote Address "Death Tax" Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation's progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.