Wills, Trusts & Estates Prof Blog

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

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Sunday, July 27, 2014

Article on Physician Aid in Dying

Hospital care

David Orentlicher (Indiana University, Robert H. McKinney School of Law), Thaddeus Mason Pope (Hamline University School of Law) and Ben A. Rich (University of California, Davis) recently published an article entitled, The Changing Legal Climate for Physician Aid in Dying, JAMA, Vol. 311, No. 19, 1961-1962 (2014); Indiana University Robert H. McKinney School of Law Research Paper No. 2014-24.  Provided below is the abstract from SSRN:

While once widely rejected as a health care option, physician aid in dying is receiving increased recognition as a response to the suffering of patients at the end of life. With aid in dying, a physician writes a prescription for a life-ending medication for an eligible patient. Following the recommendation of the American Public Health Association, the term aid in dying rather than "assisted suicide" is used to describe the practice. In this Viewpoint, the authors describe the changing legal climate for physician aid in dying occurring in several states.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

July 27, 2014 in Articles, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Saturday, July 26, 2014

Article on Intergenerational Relations and the Family Home

Shelly levyShelly Kreiczer-Levy (College of Law and Business, Ramat Gan, Israel) recently published an article entitled, Intergenerational Relations and the Family Home, Law & Ethics of Human Rights, Vol. 8 Issue 1, 131-160 (May 2014).  Provided below is the article’s abstract:

This article examines the issue of intergenerational cohabitation in the family home. Its primary purpose is to demonstrate that current analysis of internal conflicts in the home is lacking, both in terms of identifying the parties’ interests and characterizing the tensions involved. It focuses on a specific three-way conflict between two parents and their adult child and identifies each of their points of view: one parent who wants the adult child to move out, one parent who wants to continue to share her home with the adult child, and the adult child who wants to remain in the home.

The article builds on rich multidisciplinary literature on the meaning of the home. This focus sheds new light on the conflict in two significant manners. First, the disagreement between the parents is characterized as a struggle between two conflicting visions of the home. Each of these visions reflects a different perception of the home, the family, and intergenerational commitments. Second, the focus on the home allows lawyers to acknowledge the position of the adult child, whose interest is completely not sufficiently taken into account in the conventional analysis.

July 26, 2014 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Article Review: Memento Mori: Death and Wills

RIPAvi Z. Kestenbaum has written a review on Karen J. Sneddon’s article entitled, Memento Mori: Death and Wills. Provided below is an introduction to the review:

While the process of estate planning should, by its very nature, include the contemplation of our mortality and personal legacy, it often doesn’t. In fact, despite modern society’s general fascination with death and affinity for all things macabre—like zombies and vampires—the personal estate-planning process and documents, such as wills, often are designed to avoid the direct mention of death. This fascinating article delves deeply into society’s changing feelings throughout history regarding the topic of death and our personal reflections when facing it. Moreover, the article advocates a greater emphasis on properly contemplating, reflecting on and embracing the concepts of death and our personal legacies during the estate-planning process, while using candid language regarding death, which will, in turn, make the estate-planning process more of a transformative and genuine experience.

For the rest of the review, see Avi Z. Kestenbaum, Review of Reviews: “Memento Mori: Death and Wills,” 14 Wyoming L. Rev. 211 (2014), Wealth Management, July 24, 2014. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

July 26, 2014 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, July 25, 2014

Article on Intergenerational Justice for Children

Elizabeth bartholetElizabeth Bartholet (Harvard Law School) recently published an article entitled, Intergenerational Justice for Children: Restructuring Adoption, Reproduction and Child Welfare Policy, Law & Ethics of Human Rights, Vol. 8 Issue 1, 103-130 (May 2014).  Provided below is the article’s abstract:

An intergenerational justice perspective requires that we look at the condition of the existing generation of children and those to be born in the future. Many millions of the existing generation of children are now in trouble and at high risk of never fulfilling their human potential. These children are in turn unlikely, if they live to produce children, to be capable of providing the nurturing parenting that the next generation will need.

The article’s starting premises are that we should count child interests as of equivalent value to adult interests and that we do owe justice not just to the existing generation of children but to the next generations as well. Justice to the next generations means encouraging the creation of children who will have a good chance to enjoy the pleasures of life, children who will be born healthy and will be brought up by nurturing parents. Given these premises, there is much wrong with current reality and related policy.

We now encourage the reproduction of more children than we can care for, provide limited child welfare enabling poor parents to better care for their children, and discourage adoption both domestic and international. We should reverse these policies. We should change the pronatalist and anti-contraception policies that encourage the reproduction of children who won’t likely be born healthy or receive nurturing care. We should provide child welfare so that poor parents who want to keep and raise their children can do so. We should encourage adoption, both domestic and international.

July 25, 2014 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Article Review: Diversity Jurisdiction and Trusts

TrustTurney P. Berry has written a review on Jonathan J. Ossip’s article entitled, Diversity Jurisdiction and Trusts. Provided below is an introduction to the review:

Surely we’ve all heard this maxim, and in a forthcoming article, Jonathan J. Ossip reminds us that when federal diversity for trusts is concerned, the key word is “you.” In Navarro Savings Association v. Lee, the federal district court dismissed an action filed by the trustees of a Massachusetts business trust on their own behalf, holding that a business trust is a citizen of every state where its shareholders reside (which, on the facts, destroyed diversity). The U.S. Supreme Court reversed and held that the trustees were the real parties to the controversy because as trustees, they had exclusive power over the trust assets, as if they were sole owners of the trust assets individually. Subsequent to Navarro, the article argues, the federal courts have largely made a hash out of determining trust citizenship, particularly that of business trusts. To bring some order to the jurisprudence, the author advocates applying different rules to traditional estate planning or gift trusts and business trusts.

For the rest of the review, see Turney P. Berry, Review of Reviews: "Diversity Jurisdiction and Trusts” N.Y.U. L. Rev. (forthcoming December 2014), Wealth Management, July 14, 2014. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

July 25, 2014 in Articles, Trusts | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

Article on Intergenerational Communities

Gregory alexanderGregory S. Alexander (Cornell University) recently published an article entitled, Intergenerational Communities, Law & Ethics of Human Rights, Vol. 8 Issue 1, 21-57 (May 2014). Provided below is the article’s abstract:

Under the human flourishing theory of property, owners have obligations, positive as well as negative, that they owe to members of the various communities to which they belong. But are the members of those communities limited to living persons, or do they include non-living persons as well, i.e., future persons and the dead? This Article argues that owners owe two sorts of obligation to non-living members of our generational communities, one general, the other specific. The general obligation is to provide future generations with the basic material background conditions that are necessary for them to be able to carry out what I call life-transcending projects that their forebears have transmitted to them. The specific obligation is project-specific; that is, its purpose is to enable successive generational community members to whom particular life-transcending projects have been forwarded to be carried out in their way. The future generational members to whom the project is transferred must also be given whatever resources or goods are necessary to carry the project forward in its intended way. I argue further that each generational community owes its predecessors the obligation to accept life-transcending projects transmitted to them by their forebears and make reasonable efforts to carry those projects forward into the future. The obligation is based on the past generational community members’ dependency on their successors for the projects to continue into the future, a matter that is constitutive of the project creators’ flourishing. This obligation is defeasible, rather than absolute, however.

July 24, 2014 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Article on the Israeli Estate Tax

Daphna

Daphna Hacker (Buchman Faculty of Law, Tel Aviv University, Israel) recently published an article entitled, Intergenerational Wealth Transfer and the Need to Revive and Metamorphose the Israeli Estate Tax, Law & Ethics of Human Rights. Vol. 8 Issue 1, 59–101 (June 2014). Provided below is the article’s abstract:

This article suggests enacting an accession tax instead of the estate duty – which was repealed in Israel in 1981. This suggestion evolves from historical and normative explorations of the tension between perceptions of familial intergenerational property rights and justifications for the “death tax,” as termed by its opponents, i.e., estate and inheritance tax. First, the Article explores this tension as expressed in the history of the Israeli Estate Duty Law. This chronological survey reveals a move from the State’s taken-for-granted interest in revenue justifying the Law’s enactment in 1949; moving on to the “needy widow” and “poor orphan” in whose name the tax was attacked during the years 1959–1964, continuing to the abolition of the tax in 1981 in the name of efficiency and the right of the testator to transfer his wealth to his family, and finally cumulating with the targeting of tycoon dynasties that characterizes the recent calls for reintroducing the tax. Next, based on the rich literature on the subject, the Article maps the arguments for and against intergenerational wealth transfer taxation, placing the Israeli case in larger philosophical, political, and pragmatic contexts. Lastly, it associates the ideas of accession tax and “social inheritance” with inspirational sources for rethinking a realistic wealth transfer taxation to bridge the gap between notions of intergenerational familial rights and intergenerational social justice.

July 23, 2014 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Article on the Non-Identity Problem

David heydDavid Heyd (The Hebrew University of Jerusalem, Jerusalem, Israel) recently published an article entitled, Parfit on the Non-Identity Problem, Again, Law & Ethics of Human Rights Vol. 8 Issue 1, 1-20 (May 2014).  Provided below is the article’s abstract:

In his recent work, Parfit returns to the examination of the non-identity problem, but this time not in the context of a theory of value but as part of a Scanlonian theory of reasons for action. His project is to find a middle ground between pure impersonalism and the narrow person-affecting view so as to do justice to some of our fundamental intuitions regarding procreative choices. The aim of this article is to show that despite the sophisticated and challenging thought experiments and conceptual suggestions (mainly that of a “general person”), Parfit’s project fails and that we are left with the stark choice between personalism and impersonalism.

July 22, 2014 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Article on Technology Probate

Jason havens

Jason E. Havens recently published an article in the series, Technology Probate, Probate & Property, Vol. 28 No. 4, 48-50 (July/August 2014).  Provided below is a portion of the article’s introduction:

As discussed in part one of this series, the modern trust and estates law practice faces new challenges in dealing with clients, one of the most critical of which is drafting and delivering high-quality legal documents that address each client’s issues and objectives.  Part one of this two-part series focused on why to use a drafting system, where to use that system, and when to use it.  Prob. & Prop., Mar./Apr. 2014, at 53.  This second part of the series will discuss specific drafting systems: “who” is behind several of the leading systems, “what” they offer, and “how” to decide among them (or others). 

July 21, 2014 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Friday, July 18, 2014

Article on ESBTs After the Sale of S Corporation Shares

Saddock

Chris D. Saddock (Saddock Co., Dallas) recently published an article entitled, Qualifying a Grantor Trust as an ESBT After the Sale of S Corporation Shares, Probate & Property Vol. 28 No. 4, 58-60 (July/August 2014).  Provided below is a portion of the article’s introduction:

Often successful small businesses look to the S corporation as a mechanism for avoiding the corporate tax while taking advantage of a corporate entity structure.  Statutory restrictions on S corporation ownership, however, may significantly limit the shareholder’s asset protection and estate planning opportunities.  Specifically, to maintain an S election, stock must be held by a U.S. citizen or a qualified entity.  Only three types of trusts are qualified to hold S corporation shares: grantor trusts, qualified Subchapter S trusts (QSSTs), and electing small business trusts (ESBTs.) 

July 18, 2014 in Articles, Estate Planning - Generally, Income Tax, Trusts | Permalink | Comments (0) | TrackBack (0)