The Anatomy Of A Will Contest,
2012
University of Oklahoma College of Law
The Anatomy Of A Will Contest, Phyllis C. Taite
Other Faculty Publications
No abstract provided.
Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust,
2012
University of Missouri School of Law
Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong
Faculty Publications
With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …
Can Wrongful Death Damages Recovered By A Married Person Be Separate Property Under California Law? ,
2012
Pepperdine University
Can Wrongful Death Damages Recovered By A Married Person Be Separate Property Under California Law? , William A. Reppy Jr.
Pepperdine Law Review
No abstract provided.
Front Matter,
2012
Maurice A. Deane School of Law at Hofstra University
Can State Law Remedies Revive Statutes Stricken By Erisa's Preemption Provision?,
2012
Maurice A. Deane School of Law at Hofstra University
Can State Law Remedies Revive Statutes Stricken By Erisa's Preemption Provision?, Justin A. Kesselman
ACTEC Law Journal
Since the United State Supreme Court's holding in Egelhoff that ERISA preempts state law revocation-on-divorce statutes, courts and legal scholars have attempted to fashion a way to apply the policies of these statutes to effect the presumed intent of an employee not to provide retirement plan benefits to a former spouse. This paper analyzes those efforts and contrasts the statutory remedy suggested in the Uniform Probate Code with the common law remedy of imposing a constructive trust on the recipient of those benefits. In this author's view, the constructive trust is the sounder approach, because it preserves the presumption embedded …
Sex Post Facto: Advising Clients Regarding Posthumous Conception,
2012
Maurice A. Deane School of Law at Hofstra University
Sex Post Facto: Advising Clients Regarding Posthumous Conception, Benjamin C. Carpenter
ACTEC Law Journal
Apart from tax considerations, trust and estate law is often viewed by outsiders as a somewhat dusty area of the law. However, few examples better illustrate the intersection of law and technology than posthumous conception and estate law. While judges, legislators, and commentators have tackled some of the issues created by posthumous conception, few estate planning lawyers discuss the issue with their clients. Such hesitance has been understandable, given the moral sensitivities involved with posthumous conception and the relatively small likelihood that it will affect any one particular client. However, that likelihood is becoming greater with each passing year, and, …
Estate Planning Issues With Intra-Family Loans And Notes,
2012
Maurice A. Deane School of Law at Hofstra University
Estate Planning Issues With Intra-Family Loans And Notes, Stephen R. Akers, Philip J. Hayes
ACTEC Law Journal
Intra-family loans are quite prevalent, and can present significant estate planning opportunities. Loans among family members may seem simple, but they involve numerous complexities. The article addresses many of the complexities including estate, gift and income tax consequences of loans to both the lenders and borrowers in a wide variety of situations -- from simple cash loans to sophisticated sale transactions.
Anatomy Of An Anomaly: How The Qdot Credit Provisions Defy Logic And The Principles Of The Marital And Charitable Deductions,
2012
Maurice A. Deane School of Law at Hofstra University
Anatomy Of An Anomaly: How The Qdot Credit Provisions Defy Logic And The Principles Of The Marital And Charitable Deductions, Edward A. Mccoyd, Jon Perrelle
ACTEC Law Journal
No abstract provided.
Elaine Hightower Gagliardi On Treasury Transforms The Portability Election: Making The Dsue Amount A Reliable Planning Tool,
2012
Alexander Blewett III School of Law at the University of Montana
Elaine Hightower Gagliardi On Treasury Transforms The Portability Election: Making The Dsue Amount A Reliable Planning Tool, Elaine H. Gagliardi
Faculty Journal Articles & Other Writings
With the issuance of temporary regulations, Treasury pulls back the cloak of uncertainty and reveals a portability election that proves to be relatively dependable and a useful planning tool. The temporary portability regulations,1 issued June 15, 2012, remove the “now you see it, now you don’t”2 quality of the deceased spousal unused exclusion (“DSUE”) amount as enacted by Congress. With a sleight of hand, Treasury rewrites the plain wording of the statute to eliminate uncertainty. The temporary regulations provide a clear path for avoiding loss of the DSUE amount on remarriage. The regulations allow donors to make gifts without fear …
Amgen Inc. V. Connecticut Retirement Plans And Trust Funds: Brief Of Law Professors As Amici Curiae In Support Of Petitioners,
2012
University of Michigan Law School
Amgen Inc. V. Connecticut Retirement Plans And Trust Funds: Brief Of Law Professors As Amici Curiae In Support Of Petitioners, Adam C. Pritchard
Appellate Briefs
Amici are law professors whose scholarship and teaching focuses on corporate law and the federal securities laws. Law professors have an interest in ensuring that the securities laws are interpreted to accurately reflect both current financial economic scholarship and the historical underpinnings of the securities laws. Amici filed a brief amici curiae in Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011) (No. 09-1403), addressing the consideration of market impact and the fraud on the market theory at the class certification stage of Rule 10b-5 securities fraud suits.
Facade Easement: Inexpert Valuation,
2012
University of Baltimore School of Law
Facade Easement: Inexpert Valuation, Wendy G. Gerzog
All Faculty Scholarship
The article discusses the recent Dunlap decision, which involved facade easement transfers to the National Architectural Trust, a qualified charity that preserves building easements across the country, although most are in New York City. Although allowing a deduction for their cash contributions to NAT to enforce the easement and not finding any penalties applicable, the Tax Court held that despite two valuation reports written by accepted valuation experts, the taxpayers had not established any value for their easement.
Incomplete Protection: Exoneration Clauses In New York Trusts And Powers Of Attorney,
2012
Touro Law Center
Incomplete Protection: Exoneration Clauses In New York Trusts And Powers Of Attorney, Ilene S. Cooper, Robert M. Harper
Touro Law Review
No abstract provided.
Who Is Afraid Of Perpetual Trusts?,
2012
Pace University
Who Is Afraid Of Perpetual Trusts?, Bridget J. Crawford
Michigan Law Review First Impressions
Throw a stone into a room full of law professors, and it is virtually impossible to hit someone who will defend perpetual trusts. Yet since 1995, eighteen states have repealed their rules against perpetuities, and there are now twenty-one states that permit trusts to last forever. Many academics have responded with a virtual pile-on, calling the repeals a "race to the bottom" at best and "loony" at worst. Lawrence Waggoner, Professor Emeritus at the University of Michigan School of Law and Reporter for the Restatement (Third) of Property: Wills and Other Donative Transfers, has made another contribution to the scrum. …
The Specter Of Civil Law Clawback Actions Haunting U.S. And Uk Charitable Giving,
2012
University of Arlkansas at Little Rock William H. Bowen School of Law
The Specter Of Civil Law Clawback Actions Haunting U.S. And Uk Charitable Giving, Aaron Schwabach
Law Faculty Scholarship
No abstract provided.
Effectively Curbing The Gst Exemption For Perpetual Trusts,
2012
University of Michigan Law School
Effectively Curbing The Gst Exemption For Perpetual Trusts, Lawrence W. Waggoner
Articles
In "Effectively Curbing the GST Exemption for Perpetual Trusts," I criticized the Treasury Department’s proposal for dealing with perpetual trusts. My objection is that Treasury’s approach would leave many trusts and much wealth GST-exempt for much longer than Congress originally intended. For perpetual trusts created before enactment, Treasury’s approach would allow them to continue to be unburdened by a durational limit. For perpetual trusts created after the effective date of enactment, Treasury’s approach would still allow them to qualify for the GST exemption, but would have the exemption expire 90 years after the trust was created.
The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform,
2012
University of Pittsburgh
School of Law
The Upc Substituted Judgment/Best Interest Standard For Guardian Decisions: A Proposal For Reform, Lawrence A. Forlik, Linda S. Whitton
University of Michigan Journal of Law Reform
The introduction in 1997 of "substituted judgment" as a guiding principle for guardian decisions was a key contribution of the UPC to guardianship reform. The current UPC Section 5-314(a) instructs guardians to "consider the expressed desires and personal values of the ward" when making decisions and to "at all times ... act in the ward's best interest." This dual mandate for guardian decisions was intended to promote the self-determination interests of incapacitated adults. This Article argues that in practice the standard has failed to achieve this goal. It analyzes the shortcomings of UPC Section 5-314(a) and other statutory decision-making standards …
Family Caregiving And The Law Of Succession: A Proposal,
2012
University of Iowa
Family Caregiving And The Law Of Succession: A Proposal, Thomas P. Gallanis, Josephine Gittler
University of Michigan Journal of Law Reform
As the American population ages, the need for long-term care, already great, will become even greater. Some of this care is paid for by government programs, such as Medicaid, and by individual long-term care insurance policies. But the combination of the public fisc and private insurance are, and will continue to be, insufficient to pay for all of the care our seniors and adults with disabilities need. The provision of care in a family residence by one or more family members is an important component of our health care delivery system and must be supported and encouraged by public policy …
Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows,
2012
Widener University School of Law
Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows, Louise Lark Hill
University of Michigan Journal of Law Reform
Centuries ago, when land represented the majority of wealth, the trust was used primarily for holding and transferring real property. As the dominant form of wealth moved away from family land, the trust evolved into a device for managing financial assets. With this transformation came the use of exculpatory clauses by both amateur and professional trustees, providing an avenue for these fiduciaries to escape liability for designated acts. With the use of exculpatory provisions, discussion abounded about whether fiduciary duties were mandatory or subject to modification. The latter view eventually prevailed, with the majority of jurisdictions viewing fiduciary duties as …
Children Of Assisted Reproduction,
2012
Pepperdine School of Law
Children Of Assisted Reproduction, Kristine S. Knaplund
University of Michigan Journal of Law Reform
More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …
Toward Economic Analysis Of The Uniform Probate Code,
2012
Notre Dame Law School
Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly
University of Michigan Journal of Law Reform
Insights from economics and the economic analysis of law may be useful in analyzing succession law, including intestacy and wills as well as nonprobate transfers such as trusts. After surveying prior works that have examined succession from a functional perspective, I explore the possibility of utilizing tools like (i) transaction costs, (ii) the ex ante/ex post distinction, and (iii) rules versus standards, to illuminate the design of the Uniform Probate Code. Specifically, I investigate how these tools, which legal scholars have employed widely in other contexts, may be relevant in understanding events like the nonprobate revolution and issues like "dead …
