Estates and Trusts Commons^™

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, …

The Inappropriate Imposition Of Court-Ordered Mediation In Will Contests , Victoria J. Haneman

Cleveland State Law Review

Mediation settlements that are shaped or driven by non-legal considerations are not problematic, unless and until the process of mediation is designed and imposed upon the parties through state action (namely, the judicial system). Because the approach taken in mediation ineradicably strains against the legal rules applied by the courts adjudicating those same cases, a legitimate question arises as to whether or not instituting court-ordered mediation programs that mandate mediation in will contest cases is appropriate. The contention of this Article is not that mediation is inappropriately used by the parties to a will contest case, but instead that court-ordered …

Speaking For The Dead: Voice In Last Wills And Testaments, Karen J. Sneddon

Articles

I do now hereby give, bequeath, and devise all items of tangible personal property that I own or may own a right thereonto, which includes, but is not limited to, objet d'art, furnishings, automobiles, and silver, to my surviving issue per stirpes.

A will is arguably the most important and personal legal document an individual ever executes. As the language above illustrates, much of the typical language in a will removes all traces of the individual. This personal legal document is ostensibly the individual's-the testator's-document. For a testator, contemplating the creation and execution of a will is the contemplation of …

There's A Will, But No Way--Whatever Happened To The Doctrine Of Testamentary Freedom And What Can (Should) We Do To Restore It?, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

It is the purpose of this article to examine the current problems surrounding the issue of freedom of testation, to enumerate and evaluate various suggestions that have been proposed for the elimination of these problems, and to propose this writer's suggestion for the restoration of freedom of testation to those who wish to propound non-traditional estate plans. Part I examines, in some detail, the ways in which courts and juries have stymied the exercise of freedom of testation. Part II is devoted to the different suggestions that commentators have put forth for the protection of the non-traditional estate plan. Part …

Us Perpetual Trusts, Lawrence W. Waggoner

Articles

In 2009, the UK reconfirmed tis long-standing public policy against perpetual trusts. America has been moving in the opposite direction. Recent years have seen a movement in the states to pass legislation allowing settlors to create family trusts that can last forever or for several centuries. Sadly, and embarrassingly, the American perpetual-trust movement has not been based on the merits of removing the traditional curb on excessive dead-hand control. The policy issues associated with allowing perpetual trusts have not been seriously discussed in the state legislatures. The driving force has been interstate competition for trust business.

Use And Disposition Of Life Insurance In Dissolution Of Marriage, Jani Maurer

Barry Law Review

This article explores life insurance considerations in Florida dissolution of marriage proceedings, reviews current applicable law, and suggests methods of effectively dealing with life insurance in the divorce context.

Comments: Needlessly Fighting An Uphill Battle: Extensive Estate Planning Complications Faced By Gay And Lesbian Individuals, Including Drastic Resort To Adult Adoption Of Same-Sex Partners, Necessitate Revision Of Maryland's Intestacy Law To Provide Heir-At-Law Status For Domestic Partners, Madeleine N. Foltz

University of Baltimore Law Review

No abstract provided.

The Advance Directive Registry Or Lockbox: A Model Proposal And Call To Legislative Action, Joseph Karl Grant

Journal Publications

In times of need, what portal or place could we go to easily to retrieve a person's advance directives when we have need to employ and use them? A handful of states have come up with a solution. Nevada, Washington, and Vermont now have legislation in place that allow citizens of those states to electronically store their advance directives on the internet -in an electronic lockbox or portal of sorts. These states have addressed a critical need of their citizens: the need to have their advance directives accessible and readily available to health care providers so that their intent and …

Forcing Life On The Dead: Why The Pregnancy Exemption Clause Of The Kentucky Living Will Directive Act Is Unconstitutional, Kristeena L. Johnson

Kentucky Law Journal

No abstract provided.

Reforming Intestate Inheritance For Stepchildren And Stepparents, Terin Barbas Cremer

Cardozo Journal of Equal Rights & Social Justice

The article advocates for reforming intestate inheritance laws to better address the needs of blended families, particularly stepchildren and stepparents, arguing that current laws fail to reflect the prevalence of such families. It proposes a factors test to determine inheritance rights based on the quality of the stepparent-stepchild relationship, aiming to align legal frameworks with modern family dynamics and better effectuate the decedent's intent.