Estates and Trusts Commons^™

Oral Will Contracts And The Statute Of Frauds In California, 1896-1980: A Summary And Evaluation , Marc P. Bouret

Pepperdine Law Review

There is no longer any certainty that one can successfully argue that purely oral mutual promises to bequeath property are unenforceable due to the Statute of Frauds. The author traces the trends in the oral will contract area during the past eighty years. He then analyzes various exceptions to the Statute of Frauds which have developed to allow oral will contracts to be enforced during the lifetime of the promisor, or more frequently after his or her death.

Illegitimate Harm: Law, Stigma, And Discrimination Against Nonmarital Children, Solangel Maldonado

Florida Law Review

No one would dispute that for most of U.S. history, nonmarital children suffered significant legal and societal discrimination. Although many individuals believe that the legal disadvantages attached to “illegitimate” status have disappeared in the last forty years, this Article demonstrates that the law continues to discriminate against nonmarital children in a number of areas, including intestate succession, citizenship, and child support. Societal biases against nonmarital children also remain. A majority of Americans believe that the increase in nonmarital births is a significant societal problem and almost 50% believe that unmarried women should not have children. Some courts are aware of …

The Right Of Publicity: "You Can't Take It With You", Timothy C. Williams

Pepperdine Law Review

The "right of publicity," a progeny of the right to privacy, has evolved into a valuable property right of the rich and famous. However, indecisive courts and disinterested legislatures have failed to arrive at any consensus on whether the "right of publicity" should be descendible and inheritable upon its owner's death. This comment seeks to evaluate the sundry arguments and policies concerning this issue, and to advocate a freely descendible 'right of publicity."

Wimmer Wins Flp Annual Exclusions, Wendy G. Gerzog

All Faculty Scholarship

In Wimmer, the Tax Court held that the income stream from a taxpayer’s gifts of family limited partnership interests was eligible for the annual exclusion. By comparing the income interest in the partnership’s dividend paying marketable securities to the income interest in a trust, the court made Wimmer a winner. But does the opinion logically lead to that conclusion?

It Pays To Give It Away - Sometimes: Inter Vivos Charitable Remainder Unitrusts In Estate Planning, Robert G. Popovich

Pepperdine Law Review

No abstract provided.

It's All Mine - Or At Least Part Of It Is: A California Look At Property Apportionment Between The Families Of An Interstate And An Intestate's Predeceased Spouse, Robert G. Popovich

Pepperdine Law Review

No abstract provided.

A Descendible Right Of Publicity: Has The Time Finally Come For A National Standard?, J. Steven Bingman

Pepperdine Law Review

No abstract provided.

What Happens To Our Facebook Accounts When We Die?: Probate Versus Policy And The Fate Of Social-Media Assets Postmortem, Kristina Sherry

Pepperdine Law Review

More than 580,000 Facebook users in the U.S. will die this year, raising numerous legal questions as to the disposition of their Facebook pages and similar “digital assets” left in a state of legal limbo. While access to and ownership of decedents’ email accounts has been philosophized for nearly a decade, this Comment focuses on the additional legal uncertainties posed by “digital death” in the more amorphous realm of “social media.” Part II explores the implications of digital death by conceptualizing digital assets and surveying the underlying legal principles of contractual policies, probate, property, and privacy concerns. Part III surveys …

The Moral Patient, The Honorable Fiduciary, And A Faltering Liberalism: An Exploration Of Professor Bryant's Call To Animal Respect, Iris J. Goodwin

Between the Species

Professor Bryant’s article – which seeks to discover whether aspects of an anticruelty statute can be based directly on a call to virtuous conduct – is a provocative piece of scholarship that harbors a much larger question: Can a general principle mandating full respect for animals be developed out of the moral methodology inhering in virtue ethics? Insights garnered in this rejoinder are meant to stand alongside those in Professor Bryant’s article to lend deep moral grounding to animal-respect as well as provide intimations of the way virtue ethics as a moral methodology might yield determinate answers to moral questions. …

Understanding Duties And Conflicts Of Interest--A Guide For The Honorable Agent, Linda S. Whitton

Law Faculty Publications

This article examines the importance of understanding agent duties and conflicts of interest, both for drafting a power of attorney that meets a principal’s objectives and for providing guidance to the agent who will act under its authority. Professor Whitton suggests that current custom and practice with respect to powers of attorney often overlooks the need to adjust agent duties to accommodate the principal’s expectations, thus resulting in inadvertent conflicts between the duty to do what the principal expects and default duties of loyalty. The article offers practical guidelines for identifying and reconciling these conflicts, as well as best practices …

Advance Health Care Directives: Problems And Solutions For The Elder Law And Estate Planning Practitioner, Brooke M. Benzio

St. Thomas Law Review

"Remember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever. "' -Henry Van Dyke.

Since the modem movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in …

Astrue V. Capato: Relegating Posthumously Conceived Children To Second-Class Citizens, Nicole M. Barnard

Maryland Law Review

No abstract provided.

A Uniform Perpetuities Reform Act, 16 N.Y.U. J. Legis. & Pub. Pol'y 89 (2013), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

For centuries the Rule Against Perpetuities provided protection against a pair of dangers: that important stocks of property would become, effectively, permanently inalienable as a result of perpetual conditional gifts; and that the dead would be permitted to control the destinies of the living by placing permanent conditions on the fixed stock of available wealth (i.e., land wealth). In recent decades, though, the states have increasingly abandoned the Rule and its protections. As of 2011 all states have migrated, at least in part, beyond the traditional "twenty-one-years- plus-life-in-being" rule, and more than half have actually or effectively abolished their rules, …

Teaching Trusts & Estates And Elder Law: Pedagogy For The Future, 117 Penn St. L. Rev. 987 (2013), Susan Cancelosi, Barry Kozak

UIC Law Open Access Faculty Scholarship

No abstract provided.

Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack

Georgia Law Review

This Article questions, for the first time, the equitable and policy basis of Slayer Rules, the rules that bar killers from inheriting from those they kill. It shows that killings that involve inheritance usually occur as a result of domestic abuse or severe mental illness, and argues that, because the legal and social service systems offer little help to those trapped in abusive relationships or those disabled by mental illness, it is not justifiable for those systems to deprive the killer of an inheritance when he or she takes the only means of escape available.

Death, Taxes, And Property (Rights): Nozick, Libertarianism, And The Estate Tax, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

The primary purpose of this Article is to dispute the moral claims to post-death property rights made by libertarians when they argue against the estate tax. As I will show later in this Article, my argument does not necessarily entail enacting an estate tax, nor does it require a particular level of tax. I am merely trying to demonstrate that those who argue that the estate tax is an immoral violation of the private property rights of the deceased are mistaken. This is not to say that the estate of the deceased should necessarily pass to the government. It is …

Filling In The Blanks, William P. Lapiana

Articles & Chapters

No abstract provided.

Who Killed The Rule Against Perpetuities?, Grayson M.P. Mccouch

UF Law Faculty Publications

This article examines the relationship between the federal wealth transfer taxes and the rule against perpetuities. The decline of the RAP is often attributed primarily to the GST tax amendments enacted in 1986. However, while perpetual trusts were available long before 1986, their estate tax avoidance possibilities were not widely used. Even after 1986, simple repeal of the RAP leaves perpetual trusts exposed to potential estate taxation. In addition, settlors should consider non-tax considerations in assessing the attractions of perpetual trusts.

"I'M Not Quite Dead Yet!": Rethinking The Anti-Lapse Redistribution Of A Dead Beneficiary's Gift, Eloisa C. Rodriguez-Dod

Cleveland State Law Review

A persistent challenge in law is how to achieve the necessary balance between individual decision-making and societal goals. This struggle of autonomy versus societal goals manifests itself in the context of anti-lapse law for wills and trusts. This article highlights how the current rules of construction regarding anti-lapse statutes fail both the goal of implementing intent and ensuring societal goals. An examination of the current statutes demonstrates that they are flawed, controversial, and, at times, result in inconsistent application. The current statutory scheme leads to unanswered questions: Should statutes presuppose distributions when an instrument does not explicitly address the specific …

The Good, The Bad, And A New Kind Of Prenup: An Analysis Of The Ohio Legacy Trust Act And What Asset Protection Trusts Will Mean For Ohio, Kevin R. Mckinnis

Cleveland State Law Review

It is human nature to want to protect what one has worked hard to earn or accomplish. It is this very nature that entices individuals to search for creative methods by which to protect one’s assets, whether from high tax rates or creditors. As laws continually change, individuals strive to protect their assets in the most effective and secure manner possible. As a result, the protection of one’s assets has evolved from the use of offshore Asset Protection Trusts (APTs) to the use of domestic APTs (DAPT). The Ohio Legacy Trust Act is an attempt to modernize Ohio’s wealth management …