Estates and Trusts Commons^™

Boomer-Ang Eldercare: Deductible Claim?, Wendy G. Gerzog

All Faculty Scholarship

In this article, Gerzog discusses Estate of Olivo, in which the Tax Court determined the deductibility under section 2053 of a claim against the decedent’s estate for eldercare services provided by a family member.

Cook Islands Asset Protection Trust Law, David R. Mcnair

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli

Faculty Scholarship

This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC'c commitment to such equality serves an expressive function for state legilatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …

Surrogate Decision-Making Standards For Guardians: Theory And Reality, Linda S. Whitton, Lawrence A. Frolik

Law Faculty Publications

This Article examines the theoretical and practical implications of the substituted judgment and best interest standards for decision making by guardians. After providing an overview of the current decision-making standards in guardianship statutes, the Article synthesizes theoretical debates about what these standards mean and whether they provide an effective paradigm for surrogate decision makers. The authors then use new survey data to offer conclusions about the degree to which the substituted judgment and best interest standards are understood and meaningfully applied by guardians.

Promoting Trust In Trusts & Estates, Michael R. Siebecker, Lee-Ford Tritt

Sturm College of Law: Faculty Scholarship

What nexus exists between the philosophy of trust and the law of trusts & estates (“T&E”)? This article suggests eschewing stilted economic theory in favor of a more robust understanding of the basic philosophical concept of trust to uncover the proper path that evolving T&E law should follow. In particular, the article advocates embracing the concept of “encapsulated trust” to ascertain the shape that fiduciary relationships should take in the realm of T&E doctrine. In simple terms, encapsulated trust represents a rational expectation that those in whom we place our trust will take our interests into account (or “encapsulate” our …

The Delaware Series Llc: Sophisticated And Flexible Business Planning, Ann E. Conaway, Peter I. Tsoflias

Michigan Business & Entrepreneurial Law Review

The authors conclude that the Delaware series supplies a beneficial, efficient use of a combined contractual Delaware entity form when pooled with sensible, informed planning by sophisticated business attorneys. Such benefits are particularly noticeable in investment vehicles where managers embark to minimize risk by diversifying the fund’s assets or receive funding with specific covenants attached that limit the acceptable uses of the funds. The series is not, however, for general practitioners who have the occasional client wishing for the latest benefit Delaware has to offer its investors. To provide context, Parts II-IV of this article provide a brief overview of …

Which The Deader Hand - A Counter To The American Law Institute's Proposed Revival Of Dying Perpetuities Rules, 86 Tul. L. Rev. 559 (2012), Scott Andrew Shepard

UIC Law Open Access Faculty Scholarship

Encouraged primarily by a fluke in federal estate and gift law, more than half of the states have either effectively or entirely abolished their rules against perpetuities in the past two decades. The American Law Institute, deeply troubled by this development has adopted for its Third Restatement a proposed rule against perpetuities that would essentially prohibit conditional gifts to continue for the benefit of parties born more than two generations after the transferor.

The ALI's efforts are misguided. The rule against perpetuities was the product of a legal, political, and social age very different than our own. It was designed …

Estate Planning For Individuals With Disabilities, Thomas Simmons

Faculty Publications

The basic federal safety net program for elderly, blind and disabled persons is Supplemental Security Income (SSI). The Social Security Administration (SSA) administers the program and eligibility is based upon financial need. The basic eligible criteria are that an individual have less than two thousand dollars ($2,000) in assets, or three thousand dollars ($3,000) for a couple, although certain limited resources are excluded. There are also income limitations that individuals must satisfy to qualify for SSI. SSI’s sister in welfare benefits is the Medicaid (Title 19) program. While SSI is entirely a federal program, Medicaid, which shares the same basic …

Inside Wills And Trusts: What Matters And Why, William P. Lapiana

Books

Inside Wills and Trusts: What Matters and Why offers students a concise, student-friendly study aid that provides a big-picture view of how all of the essential elements of this field fit together as part of a coherent framework of legal theory and practice. Using a wide variety of pedagogical aids, this new addition to the successful Inside Series offers basic coverage of the main themes of wills and trusts law, focusing on what matters and why, while providing students multiple opportunities for review.

Who Is Afraid Of Perpetual Trusts?, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Professor Lawrence Waggoner nominally aims his critique at wealthy individuals who desire perpetual trusts and the lawmakers who enable them by passing favorable legislation. He lodges five specific objections: (1) after a certain period of time, the beneficiaries of perpetual trusts will be insufficiently related to the trust creator; (2) after a certain period of time, there will be too many beneficiaries of a perpetual trust; (3) perpetual trusts will be expensive to manage; (4) outdated trust instruments will hamper management of perpetual trusts; and (5) trustee turnover will negatively impact perpetual trusts. This Essay considers each of his objections …

Bettr Section Committee To Recommend Modified Version Of Uniform Trust Code, E. Edwin Eck

Faculty Journal Articles & Other Writings

This article outlines a proposed modified version of the Uniform Trust Code for Montana and notes several advantages and benefits Montanans would receive if the version is adopted by the Montana Legislature.

Rural Inheritance: Gender Disparities In Farm Transmission, Hannah Haksgaard

Faculty Publications

Farmers are farmers' sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers' sons, not farmers' daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting …

Comments: Estate Planning For The Posthumously Conceived Child: A Blueprint For The Sperm Donor, Brooke Shemer

University of Baltimore Law Review

No abstract provided.

Three Myths For Aging Copyrights: Tithonus, Dorian Gray, Ulysses, Robert Spoo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong

Vanderbilt Journal of Transnational Law

Once considered nothing more than "mere" estate-planning devices, trusts play a large and growing role in the international economy, holding trillions of dollars of assets and generating billions of dollars of income each year. However, the rising popularity of both commercial and noncommercial trusts has led to an explosion in hostile trust litigation, leading settlors and trustees to search for new and less expensive ways to resolve trust-related disputes.

One possible solution involves use of a mandatory arbitration provision in the trust itself. However, the unique, multiparty nature of trust disputes often makes this sort of arbitration highly controversial.

This …

Retirees Beware: Don't Worry About The British, 'Taxmageddon' Is Coming, Douglas A. Kahn, Lawrence W. Waggoner

Articles

"Taxmageddon" is coming. Unless Congress extends the current rates or reaches an agreement on tax reform, dividends will then be taxed as ordinary income at a marginal rate as high as 39.6 % and net capital gains will then be taxed at 20%. For high-income taxpayers, a 3.8% Medicare surtax will be added to the taxation of net capital gains, dividend income, interest, and other investment income, bringing the highest marginal rate to 43.4%.

What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner

Articles

Professor John Langbein and I have just concluded a twenty-year project for the American Law Institute to restate the law of donative transfers. The official title of our three-volume Restatement is the Restatement (Third) of Property: Wills and Other Donative Transfers.1 We refer to it herein simply as the Property Restatement. The third and final volume of the work was published in the last days of 2011. Professor Langbein spoke about certain of the initiatives in the two earlier volumes, which set forth the principles governing the law of wills, intestacy, interpretation of instruments, and the nonprobate system. The concluding …

Coming To Terms With The Uniform Probate Code's Reformation Of Wills, Wayne M. Gazur

Publications

No abstract provided.

Change We Can't Believe In ... Or Afford: Why The Timing Is Wrong To Reduce The Estate Tax On The Wealthiest Americans, Phyllis C. Taite

Faculty Articles

At the end of the year 2008 the United States was in the midst of an economic storm. The country started going through its worst financial state since the Great Depression. Historically, transfer taxes were instated specifically to raise revenue during the country’s financial time of need. The temporary repeal during the 2010 tax year occurred during a time when the country was experiencing an economic storm, a time when the country could least afford to forego the additional revenue. Consequently, the timing of the temporary repeal was in direct contradiction to the original purpose of the estate tax. While …

Toward Economic Analysis Of The Uniform Probate Code, Daniel B. Kelly

Journal Articles

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 …