Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, October 25, 2016

Article on Psychic Mediums Role in Probate Law

PsychicsC. Lily Schurra recently published an Article entitled, What Ghost Up Must Come Down: The Highs and Lows of Psychic Mediums in Probate Law, 29 Quinnipiac Prob. L.J. 310 (2016). Provided below is a summary of the Article:

The goal of this analysis is to take an in-depth look at the way spiritualism has evolved in its connection to the law, particularly in regard to the role psychic mediums have played in that development, as well as what role they should play in the future. Despite the obvious evidentiary concerns of psychic mediums' presence in the courtroom, both case law and society have slowly begun to recognize the potential advantages that coincide with their use. Though certain preliminary steps necessarily must occur before including psychic mediums in probate law, there is a conceivable benefit to their use, as the trend toward societal acceptance through the last century indicates. In acknowledging “the modern appetite for psychic phenomena,” probate courts can enter a new age of dispute resolution, in which they utilize psychic mediums as resources to achieve a mutually beneficial solution for all involved, including closure for the people most deeply affected by the passing of a loved one.


October 25, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article on Trends in Trust Law That Undermine Fiduciary Accountability

Trust fiduciaryAlan Newman recently published an Article entitled, Trust Law in the Twenty-First Century: Challenges to Fiduciary Accountability, 29 Quinnipiac Prob. L.J. 261 (2016). Provided below is a summary of the Article:

This Article analyzes recent legislative trends in trust law that undermine--sometimes intentionally and sometimes inadvertently--fiduciary accountability in the administration of trusts. A primary focus in this analysis is the growing use of third parties, often referred to as “advisers” or “protectors,” who are authorized to exercise control over the trustee's administration of the trust, and newly enacted statutes addressing their use in many jurisdictions. But fiduciary accountability for trustees has been weakened in recent years by state legislatures in a variety of other ways. Before turning to recent legislation addressing trust advisers and protectors, this Article examines statutes addressing: (i) exculpatory clauses; (ii) the trustee's duty to account; (iii) the limitations period for a beneficiary to pursue a claim against a trustee for breach; (iv) the trustee's duty of loyalty; (v) the nature of a beneficiary's interest in a discretionary trust; and (vi) trust decanting.


October 25, 2016 in Articles, Estate Planning - Generally, New Legislation, Professional Responsibility, Trusts | Permalink | Comments (0)

Monday, October 24, 2016

Article on the Importance of the Home Equity Conversion Mortgage

HECMBen Jakubowicz recently published an Article entitled, What the HECM Is a Reverse Mortgage: The Importance of the Home Equity Conversion Mortgage in an Aging America, 54 U. Louisville L. Rev. 183 (2016). Provided below is a summary of the Article:

In short, the HECM program in its current state does not adequately protect the interests of senior homeowners. Before addressing the cost and default issues, it is first necessary to acquire a thorough understanding of the HECM framework. Section I provides a brief overview of the demographics of the baby boomer generation and surveys today's lending environment. Next, Section I explains the HECM guidelines before analyzing the direct correlation between costs and default rates.

Section II examines why reverse mortgage borrowers default on their loans and considers the effectiveness of recent legislative enactments aimed at reducing default. Section II goes on to explain the lender's role in the process and ultimately illuminates the conclusion that many of the most problematic aspects of the reverse mortgage program are beyond the reach of the legislature. Section III recognizes that those infirmities are best remedied by removing the profit motive from the HECM market, and discusses the benefits of implementing government-sponsored entities at the mortgage originator level.

Most importantly, this author seeks to reinforce the notion that there must be a pro-active approach to maintaining the HECM program so as to ensure its affordability and sustainability as the American population ages.


October 24, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article on Incorporating Collaboration in Estate-Planning Practices

CollaborationTodd Fithian, Albert E. Gibbons, & David W. Holaday recently published an Article entitled, High Performance Teaming and Professional Collaboration, Trusts & Estates (May 2016). Provided below is a summary of the Article:

The National Association of Estate Planners & Councils (NAEPC), formed in 1962, functions with the abiding conviction that: (1) the team approach to estate planning is essential to the creation of an estate plan, to which every consumer is entitled; and (2) this team approach is what best serves the client. 

The most essential, defining characteristic of a high performance, multi-disciplinary team is an explicit collaborative process—one that’s articulated to the wealth-holder(s) and to each and every advisor on the team. Over the past several decades, the estate-planning world has become increasingly complex and interdependent. To navigate through this world, it helps if practitioners incorporate collaboration more deliberately into their estate-planning practices. 



October 24, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Sunday, October 23, 2016

Article on Transfer on Death Deeds in Texas

ToddGerry W. Beyer recently published an Article entitled, Transfer on Death Deeds: A Texas Primer (2016). Provided below is an abstract of the Article:

The 2015 Texas Legislature enacted a “Texasized” version of the Uniform Real Property Transfer on Death Act joining over a dozen other states that have already done so. Transfer on death deeds (hereinafter “TODDs”) were previously authorized under Estates Code § 111.052 (recodifying Probate Code § 450) which validates “any provision in a...conveyance of property...stating that... property that is the subject of the instrument shall pass, to a person designated by the decedent in the instrument.” However, this “bare-bones” provision provided little guidance with regard to the myriad of issues that these type of deeds could raise. Passage of this legislation was designed to bring greater clarity to this technique. This article discusses the operation of the new statute.


October 23, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 20, 2016

Article on U.S. Trust Law & the Panama Papers

Panama papersReid K. Weisbord recently published an Article entitled, A Catharsis for U.S. Trust Law: American Reflections on the Panama Papers, 116 Colum. L. Rev. Online 93 (2016). Provided below is an abstract of the Article:

In April 2016, a massive leak of confidential legal documents, now known as the “Panama Papers,” attracted international scrutiny and condemnation of offshore asset protection trust arrangements. Such trusts are legal to create but notoriously susceptible to abuse by wrongdoers seeking to hide assets from the peering eyes of tax collectors and creditors. The Panama Papers offer compelling evidence of something long suspected but difficult to prove for lack of transparency — even though asset-offshoring techniques may be used for legitimate purposes, they are, in fact, too often abused as a cover for criminal activity and tax evasion. In response to the leak, the U.S. Department of Justice and several foreign law enforcement agencies opened investigations into the financial improprieties uncovered by the Panama Papers. However, before criticizing offshore trust havens for capitalizing on fraudulent behavior at the expense of nonresident claimants, U.S. state lawmakers should first reflect upon the recent wave of domestic trust legislation authorizing similar conduct here at home. This Piece is a patriotic catharsis lamenting the recent trend of U.S. trust law to sanitize some of the most controversial and widely abused offshore trust practices and urges lawmakers to take steps toward its reversal. Three aspects of U.S. trust law, in particular, have authorized asset protection techniques similar to those permitted in offshore trust havens: (1) self-settled asset protection trusts, (2) nonresident tax shelters, and (3) trust secrecy. The Piece concludes with a discussion of existing federal law protections against domestic trust abuse and recommendations for reform.


October 20, 2016 in Articles, Trusts | Permalink | Comments (0)

Article on Dr. Jekyll's Testamentary Capacity for His Will

JekyllStephen R. Alton recently published an Article entitled, The Strange Case of Dr. Jekyll’s Will: A Tale of Testamentary Capacity, Tulsa L. Rev. (forthcoming). Provided below is an abstract of the Article:

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs — the last will of Dr. Jekyll. It is this will that so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that Utterson is impelled to seek the truth behind his friend’s relationship to Hyde. At the end of Utterson’s search, the solicitor learns about Jekyll’s dangerous scientific experiment, which leads to the respected doctor’s moral downfall and his physical death.

This article is presented as an imagined dialogue between the article’s author and Jekyll’s lawyer, Utterson, about the issues surrounding Jekyll’s mental capacity to make the will that left the doctor’s estate to Hyde. Jekyll’s will is an excellent case study for the application of various legal rules and doctrines regarding a testator’s mental capacity to make a valid will. These rules include those relating to the general soundness of the testator’s state of mind, the issues of undue influence and duress, and the doctrine of insane delusion. Stevenson’s novella is a wonderful vehicle for examining important legal problems that remain as relevant in America today as they were in England during Queen Victoria’s reign.


October 20, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, October 19, 2016

Article on Equity's Charity Law Function in Canada's Federal Courts

Court of equityKathryn Chan recently published an Article entitled, The Function (or Malfunction) of Equity in the Charity Law of Canada’s Federal Courts, 2 Cdn J. Comparative & Contemporary L. 33 (2016). Provided below is an abstract of the Article:

This essay explores what, if anything, it means for the Federal Court of Appeal to be a “court of equity” in the exercise of its jurisdiction over matters related to charitable registration under the Income Tax Act. The equitable jurisdiction over charities encompasses a number of curative principles, which the Court of Chancery traditionally invoked to save indefinite or otherwise defective charitable gifts. The author identifies some of these equitable principles and contemplates how their invocation might have altered the course of certain unsuccessful charitable registration appeals. She then considers the principal arguments for and against the Federal Court of Appeal applying these equitable principles when adjudicating matters related to registered charity status.


October 19, 2016 in Articles | Permalink | Comments (0)

Tuesday, October 18, 2016

Article on the Gratuitous Transfer of Wealth

Estate tax2James R. Repetti recently published an Article entitled, Should We Tax the Gratuitous Transfer of Wealth?: An Introduction, 57 Boston College L. Rev. (2016). Provided below is an abstract of the Article:

The estate tax was enacted because of concerns about the impact of large concentrations of dynastic wealth on the political process. As discussed in this commentary, which reviews the Symposium articles by Paul Caron, David Joulfaian, and Jennifer Bird-Pollan, recent research by political scientists supports the legitimacy of these concerns. In addition, a significant body of studies suggests that inequality has a long-term negative impact on growth. Paul Caron observes in his article that progressivity in our tax system has been decreasing and that the estate tax was 60% or higher for fifty years (1934–1983), a rate much higher than the current 40%. David Joulfaian notes that the estate tax clearly contributes to the progressivity of our tax system. He finds that estate tax liability of a decedent is on average equivalent to doubling the income tax liability of decedents during the prior ten years. Jennifer Bird-Pollan explores the views on estate tax from a liberal, utilitarian, and libertarian philosophical perspective. This commentary notes some additional aspects of the estate tax that strengthen the utilitarian and liberal arguments in favor of the estate tax.


October 18, 2016 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

Monday, October 17, 2016

Article on Estate Planning Challenges for Digital Assets

Digital assets actElizabeth Ruth Carter recently published an Article entitled, Estate Planning for Digital Assets: Assigning Tax Basis and Value to Digital Assets, LSU 46th Annual Estate Planning Seminar (2016). Provided below is an abstract of the Article:

These materials were prepared in conjunction with the LSU 46th Estate Planning Seminar. They explore the various types of digital assets--including social media (Facebook, Twitter, Linked In, etc.), audiobooks, music and video files, and bitcoin--and the estate planning challenges these assets present. These material also consider the federal estate and gift tax issues posed by digital assets, including questions related to small business valuation.


October 17, 2016 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)