Estates and Trusts Commons^™

I Dig It, But Congress Shouldn't Let Me: Closing The Idgt Loophole, Daniel L. Ricks

ACTEC Law Journal

By combining three tools that independently are beneficial to taxpayers, clever estate planners have devised a transaction - the installment sale of discounted assets to an intentionally defective grantor trust - that saves their ultra-wealthy clients millions of dollars in estate and gift taxes. This transaction, which is a foundational part of many estate plans, takes advantage of rules that Congress never intended to be used in this way. Becasue the Internal Revenue Service has conceded its inability to challenge the transaction based on current law, any solution lies with Congress. This Article proposes an amendment to § 2036 that …

Wills, Trusts, Guardianships, And Fiduciary Administration, Mary F. Radford

Mercer Law Review

This Article describes selected cases and significant legislation from the period of June 1, 2009 through May 31, 2010 that pertain to Georgia fiduciary law and estate planning.

Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

The 2010 Session of the General Assembly enacted wills, trusts, and estates legislation (i) adopting the Uniform Power ofAttorney Act, (ii) passing emergency legislation for the construction of tax-oriented wills and trusts of persons who die during 2010 with documents drafted prior thereto, (iii) revising the small-estate statutes, and (iv) clarifying the burial power of attorney. In addition, there were six other enactments, and seven opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2010 that present issues of interest in thisarea. This article reports on all of these legislative and judicial developments, along with …

Trusts And Estates - Spendthrift Trusts And The "Happenstance Of Bankruptcy" Rule, Jonathan R. Shulan

University of Arkansas at Little Rock Law Review

No abstract provided.

Family Law And Estate Law - Reproductive Technology - Use Of Artificial Reproductive Technologies After The Death Of A Parent, Lisa Medford

University of Arkansas at Little Rock Law Review

No abstract provided.

Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle

Faculty Publications

Many estate planners have drafted wills and revocable trusts with dispositive provisions based on formulas. These formulas often use language based on transfer tax terminology. For clients who die in 2010, the language used in these formulas will be ambiguous, if not apparently meaningless, because Congress failed to re-institute the estate tax for 2010. The resulting 2010 estate tax hiatus will result in will and revocable trust construction problems for the estates of many decedents who die during the hiatus. Courts will have to use statutory and common law construction methods to attempt to determine the decedent's dispositive intentions. This …

Morgens: More Qtip Mischief, Wendy G. Gerzog

All Faculty Scholarship

In Morgens, the court ruled in favor of the government that section 2035(b) applied to the gift taxes paid by the qualified terminable interest property (QTIP) trust beneficiaries to gross up the widow’s estate by that amount. Because the surviving (or donee) spouse must be taxed on the underlying property over which she has no ownership rights, Congress enacted section 2207A to allow the second spouse to recover from the beneficiaries of the property the transfer taxes relating to her gift or estate inclusion. However, the court held that section 2207A did not shift the gift tax liability to those …

In Re Est. Of Sure Chief, No. 2009-P-20 (Blkft. Tr. Ct. App., Jul. 1, 2010)., Blackfeet Appellate Court

Court Decisions

Court of Appeals held that petitioner could not appeal the appointment of personal representative for her mother’s estate until she had exhausted her remedies at the Lower Court “with verification of how her rights have been violated.”

Disclose - Disclose - Disclose - Longmeyer Distorts The Trustee's Duty To Inform Trust Beneficiaries, David M. English, Berry T. Turney, Dana G. Fitzsimons Jr.

Faculty Publications

The evolution of the law concerning the trustee's duty to disclose information to the trust beneficiaries, through cases like Longmeyer, creates new risks for trustees who are unaware of their obligations. Trustees will also face an increasing number of difficult situations as in Longmeyer as a result of an aging and increasingly infirm population. Although it can be a difficult decision to make under pressure, a trustee should give strong consideration to policies that favor prompt and complete disclosure even in difficult circumstances. Also, trustees should remember that the courts are available for their protection when confronted with genuine doubt …

The Role Of Trust Protectors In American Trust Law, Richard C. Ausness

Law Faculty Scholarly Articles

“A trust is an arrangement whereby one person (the trustor) transfers property to another person or entity (the trustee) and directs the trustee to hold the property for the benefit of another person (the beneficiary).” These days, trustees often have significant discretionary and administrative powers. The increased use of institutional trustees, as well as the growing sophistication and complexity of modern trust asset management, have induced many settlors to give their trustees greater power and discretion. In addition, many states have enacted statutes, such as the Uniform Trustees’ Powers Act or the Uniform Trust Code (UTC), that confer broad powers …

To Opine Or Not To Opine, That Is The Question: A Discussion Of A Patent Agent's Representation Of Others Before The United States Patent And Trademark Office In Light Of Revised Rules Of Patent Ethics And Professionalism, Nathan D. Renov

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Rethinking Trust Law Reform: How Prudent Is Modern Prudent Investor Doctrine?, Stewart E. Sterk

Articles

During the 1990s, modern portfolio theory provided the theoretical foundation for significant reforms in trust investment doctrine-reforms that freed trustees from a legal regime in which they faced potential liability for making "speculative" investments. The reforms enabled trustees to pursue investment policies that protected beneficiaries against inflation risk. But the reforms worked too well; they encouraged trustees to invest a higher percentage of trust assets in equities just in time for a decade that has seen two precipitous stock market declines. Although no sensible investment strategy would have avoided losses during these periods of market turmoil, the doctrinal reforms endorsed …

The Times They Are Not A-Changin': Reforming The Charitable Split-Interest Rules (Again), Wendy C. Gerzog

Chicago-Kent Law Review

This article will review the history of the tax treatment of charitable split interest gifts, explain the inequities that Congress both cured and generated in its 1969 reforms, and propose solutions that are consistent with the goals of the 1969 legislation. The article discusses variations in the 1969 definition of a charitable split interest, which, because of the enacted statutory language, applies in instances where there is no abuse potential. The inequity produced by that definition penalizes the donor and flouts the rationale behind the 1969 legislation. By contrast, the creation of some required statutory forms of charitable split interests …

What Leona Helmsley Can Teach Us About The Charitable Deduction, Ray D. Madoff

Chicago-Kent Law Review

Leona Helmsley named a number of beneficiaries under her will (both human and canine), but among the unnamed beneficiaries are scholars interested in studying the role of philanthropy in the United States. By directing that an estimated $8 billion be used for the benefit of dogs, Mrs. Helmsley brought in to high relief policy issues regarding the appropriateness of the unlimited charitable deduction. I argue that these concerns are equally applicable, albeit less obvious, when it comes to more traditional charitable bequests. In this paper I will discuss the appropriateness of the unlimited estate tax deduction (particularly in light of …

Should Charitable Trust Enforcement Rights Be Assignable?, Joshua C. Tate

Chicago-Kent Law Review

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that "[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust." Joshua Tate's paper will address the question of whether, and to what extent, a settlor's right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if …

Flp In The Black, Wendy G. Gerzog

All Faculty Scholarship

In Estate of Black, because the Tax Court held the Blacks' transfers fell within the bona fide sales exception of section 2036, they were successful at avoiding the application of the provision. Thus, they were able to obtain valuation discounts for their transfers of property (mostly marketable securities) to their son and grandchildren. The court also decided the marital trust funding valuation date issue in the executor's favor and allowed almost half of the claimed administrative expense deductions.

The Law Of Philanthropy In The Twenty-First Century: An Introduction To The Symposium, Anne-Marie Rhodes

Chicago-Kent Law Review

No abstract provided.

Helping Nonprofits Police Themselves: What Trust Law Can Teach Us About Conflicts Of Interest, Melanie B. Leslie

Chicago-Kent Law Review

Fiduciary duty law seeks to minimize agency costs that occur when the interests of the agent and principal diverge. That law is context specific: the substance depends upon the objectives of the fiduciary relationship and the degree to which other forces, such as markets and social norms, help align the incentives of principal and fiduciary.

Trust law has no business judgment rule, and prohibits even "fair" conflict of interest transactions unless they are approved by fully informed beneficiaries. Strict rules bolster norms against self-dealing and compensate for trust beneficiaries' poor monitoring abilities and inability to exit or diversify. Corporate fiduciary …

An Empirical Assessment Of The Potential For Will Substitutes To Improve State Intestacy Statutes, Mary Fellows, E. Gary Spitko, Charles Strohm

Faculty Publications

This Article uses an empirical study to test whether, in the absence of a will, beneficiary designations in will substitutes provide reliable evidence for approximating decedents' donative intent in an intestacy statute. No previous scholarship has explored the relationship between will-substitute beneficiary designations and intestacy statutes. We set out to investigate public attitudes about will substitutes and determine if the public prefers current law, which ignores will substitutes when determining the disposition of a decedent's property passing by intestate succession, or a statutory pattern that takes into account beneficiary designations found in a decedent's will substitutes. We are mindful that …

An Empirical Assessment Of The Potential For Will Substitutes To Improve State Intestacy Statutes, Mary Louise Fellows, E Gary Spitko, Charles Q. Strohm

Indiana Law Journal

No abstract provided.