Wills, Trusts & Estates Prof Blog

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

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Wednesday, July 29, 2015

Article On Bankruptcy Protection of Tax-Qualified Retirement Plan Beneficiaries

Article PictureKaren K. Suhre recently published an article entitled, Bankruptcy Protection of Tax-Qualified Retirement Plan Beneficiaries After Clark v. Rameker, 29 Probate & Property 3 (May/June 2015). Provided below is an excerpt from the article:

On June 12, 2014, a unanimous U.S. Supreme Court held that a beneficiary’s interest in an inherited individual retirement account (IRA) was not exempt from the beneficiary’s bankruptcy estate under Bankruptcy Code § 522(b)(3)(C). Clark v. Rameker, 134 S. Ct. 2242 (2014). Although Clark does not discuss the status of a beneficiary’s interest in other types of retirement arrangements, the opinion interprets the term “retirement funds” in a Bankruptcy Code exemption provision that expressly applies to tax-qualified retirement plans and other types of tax-favored retirement accounts. The reasoning of Clark could be applied to a beneficiary’s interest in other types of tax-favored retirement plans and accounts.

The “retirement funds” exemption at issue was added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23, and was intended to provide a clear, uniform national rule regarding the exemption of all tax-exempt retirement accounts in bankruptcy proceedings. Unfortunately, in the wake of Clark, a retirement fund beneficiary may now have to resort to alternative, complex theories, which may vary from jurisdiction to jurisdiction, to protect the beneficiary’s interest from creditors in bankruptcy.

July 29, 2015 in Articles | Permalink | Comments (0)

Tuesday, July 28, 2015

Article On Uniform Fiduciary Access To Digital Assets Act

ComputerKarin Prangley (Brown Brothers Harriman & Co.) recently published an article entitled, War and PEAC in Digital Assets: The Providers' PEAC Act Wages War with UFADAA, 29 Probate & Property 4 (July/August 2015). Provided below is an abstract of the article:

The Uniform Fiduciary Access to Digital Assets Act (UFADAA) is making its way through approximately 20 state legislatures this year. In nearly every one of these states, UFADAA is being met with strong resistance by some of the largest providers of electronic communications services to the public. But why are providers opposing an act that they helped draft? This article puts forward three arguments providers are using to justify resistance and examines them in depth while providing a comparison between the UFADAA and the provider sponsored Privacy Expectation Afterlife Choices Act (PEAC).

July 28, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, July 25, 2015

Article On Economic Analysis In Fiduciary Monitoring

GavelD. Lee Heavner (Analysis Group, Inc.) & Susan Mangiero (Fiduciary Leadership, LLC) recently published an article entitled, Economic Analysis in Fiduciary Monitoring Disputes Following the Supreme Court's 'Tibble' Ruling.  Provided below is an abstract of the article:

Fiduciary monitoring has become a hot topic as a result of the U.S. Supreme Court’s decision in Tibble v. Edison International, according to recent expert insights published by Analysis Group Managing Principal D. Lee Heavner and Fiduciary Leadership LLC Managing Director and Analysis Group affiliate Susan Mangiero. The Tibble ruling, which stated that plan fiduciaries have a responsibility to monitor investments and remove imprudent ones, is important because of the amount of assets in ERISA retirement plans – approximately $7 trillion as of 2012, according to the U.S. Department of Labor. This decision also comes against a backdrop of growing ERISA litigation. In 2014 alone, ERISA litigation settlements exceeded $1.4 billion, according to Benefits Pro, and this amount excludes the substantial legal costs of defending the cases. In the recent article “Economic Analysis in Fiduciary Monitoring Disputes Following the Supreme Court’s ‘Tibble’ Ruling” (Bloomberg BNA’s Pensions & Benefits Daily, June 24, 2015), Dr. Heavner and Dr. Mangiero explain that what constitutes a reasonable monitoring process may be influenced by plan- and investment-specific factors, as well as by the expected benefits and costs of different monitoring activities. “The monitoring of investments is a broad and complex topic. There is no uniform process that is appropriate in every situation. To the contrary, the list of potentially relevant risk factors is long and subject to revision as circumstances change.” The authors also discuss how complexities arise when calculating economic damages due to the wide array of alternative actions and the substantial variation in timing that may be consistent with a prudent monitoring process.

July 25, 2015 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, July 24, 2015

Article On Conflict Rules in Matters of Succession

Article PictureTalia Einhorn (Professor, Tel Aviv University - Faculty of Management) recently published an article entitled, The Coordinating Role of Israeli Conflict Rules in Matters of Succession - Comparative Perspectives.  Provided below is an abstract of the article:

This paper studies the coordinating function of the Israeli Private International Law (PIL) rules in matters of succession, drawing comparative perspectives from European states – in particular England, Belgium, Germany and Switzerland – and the European Union (EU), in which, since the coming into effect of the Treaty of Amsterdam, 2005, and even more since the coming into effect of the Treaty of Lisbon, 2009, that substituted the rules pertaining to PIL by Article 81 of the Treaty on the Functioning of the European Union, the EU has acquired extensive powers to adopt legislation in matters of private international law, which is directly applicable in the EU Member States. Accordingly, the EU adopted Regulation 650/2012 concerning the PIL rules in matters of succession (Rome IV) (hereafter – "EU Succession Regulation"). This regulation will apply in most EU Member States as of 17 August 2015 (except for the United Kingdom, Ireland and Denmark that opted not to be subject to the Rome IV regime, as allowed in the protocols annexed to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union).

Israel has not codified its conflict rules. The Israeli Draft Civil Code does not contain a chapter on this subject either. Most Israeli statutes contain only substantive law rules, with just a fraction containing isolated PIL rules, which do not cover the subject-matter as a whole. The Succession Law, 5725-1965, is the only statute that covers PIL rather comprehensively in its chapter seven (§§ 135-144). Undoubtedly, this is due to the fact that Professor Edoardo Vitta, a renowned PIL scholar, was a member of the Succession Law Drafting Committee.

July 24, 2015 in Articles, Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

Thursday, July 23, 2015

Article On Inheriting A Home Rather Than A House

Article PictureShelly Kreiczer-Levy (Senior Lecturer, College of Law And Business) recently published an article entitled, Can One Inherit A Home As Opposed To A House? A Normative And Comparative Perspective,  31 Ariz. J. Int'l & Comp. L. 735-759 (2014).  Provided below is an excerpt from the article:

This article asks whether one can inherit a home as opposed to a house--conceptually and legally--and offers a comparative analysis of the question. The sociological understanding of inheriting a home relies on the concept of home as a personal creation. To inherit a home means to live in the home of the decedent. If the heir decides to sell the property or rent it, then she did not inherit a home, but rather a house, a piece of property. This sociological argument by Janet Finch & Lynn Hayes emphasizes the living arrangement and explains that a successor inherits a home only if he or she chooses to live at the home of the previous owner. Because most people are reluctant to leave their own home and move into the home of the deceased, the sociological conclusion is that a home is so strongly connected with its creator that it dies with him or her and cannot be inherited.

July 23, 2015 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, July 22, 2015

Article On The Inheritance Rights Of Posthumously Conceived Children

InheritanceJeffrey Walters (Valparaiso University School of Law, J.D. 2015) recently published an article entitled, Thawing the inheritance rights of maybe babies: an answer to Indiana's statutory silence on posthumously conceived children, 48 Val. U. L. Rev. 1229-1268 (2014). Provided below is an excerpt from the article:

This Note argues that Indiana should adopt legislation creating a right for posthumously conceived children to inherit from their parent's intestate estate.First, Part II of this Note provides a general background of what constitutes a posthumously conceived child, the technology that allows for their conception, recent court decisions that have addressed the constitutional protections that should be afforded to children, and model codes that provide potential remedies. Second, Part III analyzes the constitutionality of limiting a posthumously conceived child's right to inherit and evaluates the competing state and personal interests at stake.Finally, Part IV proposes that Indiana should adopt legislation creating a right for posthumously conceived children to inherit, but should provide for the right only if certain requirements are met.

July 22, 2015 in Articles, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, July 21, 2015

Article On Trust Proliferation

Article PictureAdam S. Hofri-Winogradow (Professor of Law, University of Connecticut - School of Law) recently published an article entitled, How Harmful is Trust Proliferation?. Provided below is an abstract of the article:

The last few decades have seen an unprecedented global wave of trust law reforms and an equally unprecedented global proliferation of trust service providers. Commentators hypothesize that this rapid process is harmful, eroding tax bases as well as protections accorded to trusts users' creditors, spouses, children and other claimants. To test this hypothesis, I conducted an exploratory global survey of trust service providers. I found that trusts likely to subsist for more than a Century are fairly common; that trustee exculpatory terms are now a conventional, nearly universal standard in donative trusts serviced by professionals, without settlors receiving any quid-pro-quo for their inclusion; that techniques protecting beneficiaries' entitlements under trust from their creditors are nearly universal in trusts serviced by U.S.-resident providers and fairly common in other trusts; and that settlor control of trusts, whether or not resulting from the exercise of expressly reserved powers, is far more common in trusts serviced by U.S.-resident providers than in other trusts.

July 21, 2015 in Articles, Trusts | Permalink | Comments (0)

Monday, July 20, 2015

Article On Baselines in Trust Term Extension

Article PictureAlexander A. Boni-Saenz (Professor of Law, Chicago-Kent College of Law) recently published an article entitled, Baselines in Trust Term Extension, Florida Law Review Forum, Vol. 97 (2015). Provided below is an abstract of the article:

The next battleground in the rancorous war over the Rule Against Perpetuities may be trust term extension. Seeking to take advantage of the abolition of the Rule in many states, trustees of irrevocable trusts settled before such a change in law might petition the court to extend the term of the trusts they administer, perhaps indefinitely. Professor Weisbord is rightly skeptical of this move, and he recommends a simple but elegant solution: prohibiting the use of modification doctrines to add beneficiaries not identified in the original trust document. This essay makes two related points and suggests an alternative solution. First, the legal analysis of trust term extension is highly sensitive to the baseline one selects, which, in turn, incorporates many policy preferences about dead hand control. Thus, the debate about trust term extension risks devolving into a debate about whether or not to abolish the Rule Against Perpetuities. Second, one’s view of trust term extension need not flow directly from one’s view of dead hand control, as the practical problems in divining settlor intent with regard to perpetual trusts will be shared by disputants on both sides of that debate. A reform addressed to these concerns would permit trust term extension, but require proponents of modification to provide clear and convincing evidence of settlor intent to create a perpetual trust.

July 20, 2015 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, July 19, 2015

Article On Remedies for Breach of Trust

TrustPaul S. Davies (Office of Research, Evaluation and Statistics) recently published an article entitled, Remedies for Breach of Trust, 78 Modern Law Review 4 (2015). Provided below is an excerpt from the article:

The decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.

July 19, 2015 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, July 18, 2015

Article On Probate Actions Under Suspicious Circumstances

Article PictureLouise M Mimnagh (McNamara Pizzale) recently published an article entitled, Probate Actions and 'Suspicious Circumstances': A Third Standard of Proof for Allegations Involving Moral Guilt, Osgoode Legal Studies Research Paper No. 29/2015. Provided below is an excerpt from the article:

When a will is challenged as being executed under suspicious circumstances, Canadian courts have historically sought clear, compelling, and cogent evidence to demonstrate the will’s validity. The associated standard of proof has been described as one residing beyond a balance of probabilities, and is conceptualized as the ‘third standard of proof’ in addition to the civil and criminal standards. This third standard of proof is also particularly appealing when allocating the risk of error in an estates context in which testators are deceased and no longer available to clarify their intentions or perspectives. However, after the 2008 Supreme Court of Canada decision, FH v McDougall (“McDougall”), it was resolutely pronounced that only two standards of proof operate in Canada, with the third standard of proof dismissed for the practical problems of its application. As conceded below, there are compelling and valid reasons to disregard a third standard of proof for typical will challenges investigating circumstances such as the execution of the will or the testamentary capacity of the testator. This paper argues that for challenges that involve allegations of moral guilt, and in cases of fraud or undue influence over the testator, then something more then a balance of probabilities is desirable, and the more demanding third standard of proof should be utilized.

July 18, 2015 in Articles, Estate Planning - Generally | Permalink | Comments (0)