Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Saturday, May 23, 2015

Article On How People Approach Wealth Transmission Systems

Naomi Cahn Naomi Cahn (Professor of Law, George Washington University Law School) & Amy Ziettlow (Affiliate Scholar, Institute for American Value) recently published an article entitled,'Making Things Fair': An Empirical Study of How People Approach the Wealth Transmission System, 22 Elder L.J. 325-380 (2015). Provided below is an excerpt from the article:

The wealth transmission process is of great concern to many senior citizens in the United States. The American wealth transmission process is designed to respect private ordering. It encourages planning as a means to formalize intent and ensure smoother property transfer at death. Most people do not plan, nor do they use, the formal probate system for distributing property, but there is little research on what the actual wealth transfer process looks like for the majority of Americans. This article challenges the contemporary trusts and estates canon by showing that the nuts and bolts of the inheritance process for many Americans takes place in a different universe outside of probate court, where the black-letter law is only a shadow, keepsakes and heirlooms assume outsized importance, and family dynamics drive outcomes. It is based on a first-ever empirical study of intergenerational care for Baby Boomers.

This study shows that the formal laws of the inheritance system are largely irrelevant to how property is actually transferred at death. The contemporary trusts and estates canon focuses on the importance of planning for traditional forms of wealth in nuclear families, rather than wealth that has high emotional, but low financial, value. Alternative family structures and changing forms of wealth challenge this canon, uncovering serious shortcomings in existing means designed to encourage planning and minimize conflict. Instead, this study shows how the logic of "making things fair" has been structuring the way families navigated the distribution process and accessed the law. Consequently, this article recommends that law reform should be guided by the needs of contemporary families, where not only is wealth defined broadly but family too, through ties that are both formal and functional. This means establishing default rules that maximize planning while also protecting familial relationships.

May 23, 2015 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2015

Clinic On Holocaust Survivor Estate Planning

CLE PictureThe law firm of Greenberg Traurig in conjunction with Broward County Jewish Family Services presents a clinic entitled, Holocaust Survivor Estate Planning Clinic, Thursday May 21, 2015 from 11:00am - 1:00pm Eastern at the Daniel Cantor Senior Center in Sunrise, Florida. Here is why you should attend:

The attorneys will provide pro bono legal services and help Holocaust survivors prepare estate planning documents, including wills, health care advance directives, and durable powers of attorney. The event, organized by Fort Lauderdale Greenberg Traurig Shareholders Caran Rothchild and Parker F. Taylor, is the first of several clinics for Holocaust survivors that the firm plans to host this year throughout South Florida.

“As Holocaust survivors who were children and teenagers in the 1940s continue to get older, there is a serious need to help them assemble the critical legal documents they need to legally protect their estates and ensure their wishes will be carried out. Many do not have the resources to access these legal services or are not aware that they need these services. We look forward to filling this void by providing pro bono estate planning clinics throughout South Florida.”

May 22, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Article On The Simplification Of Death Deeds In Connecticut

Tyler GablenzTyler Gablenz (Quinnipiac University School of Law, Class of 2015) recently published an article entitled, Simplify The Process: Why Connecticut Should Adopt The Use Of Transfer On Death Deeds, 28 Quinnipiac Prob. L.J. 165-183 (2015). Provided below is an excerpt from the article:

At a time when the economy is struggling, Americans are looking for ways to save money. Hiring an attorney to handle one's estate in probate court may be impossible or impracticable for many. One solution to this problem is the use of will substitutes, documents people may draft themselves, or with the assistance of a legal professional, that allow them to avoid going to probate court. One such document is a real property transfer on death deed, which allows an individual to turn over real property to a beneficiary without court involvement. A law has already been enacted in Connecticut, allowing the non-probate transfer of securities to designated beneficiaries at the death of the owner. A real property transfer on death deed act has been codified in only nineteen states, but many other legislatures, including Connecticut's, have recently considered a change in the law.

This Note will provide an overview of the Connecticut probate process, introduce what a transfer on death deed is, outline how one is created, explore its effects (including the benefits and dangers of this type of deed), and discuss why states should consider enacting them.

 

May 22, 2015 in Articles, Estate Administration, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2015

Article On Spousal Trust After ATRA

Martin A GoldbergMartin A. Goldberg (Associate Professor, University of New Haven College of Business) recently published an article entitled, Article: Spousal Trusts After ATRA: Specialized Uses and Risks, 28 Quinnipiac Prob. L.J. 148-164 (2015). Provided below is an excerpt from the article:

The first round of the vast tax law changes, popularly known as the "Bush Tax Cuts," were enacted back in 2001, in the Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"). EGTRRA contained a mixed message with regard to the federal estate tax: repeal of the estate tax in 2010 followed by a sunsetting of the entire law in the following year. This would have meant a return to a federal estate tax with a $ 1,000,000 estate tax exclusion under the unified credit. To many it looked like the end of the estate tax, and in turn, an end to estate tax planning. For those under that impression, this perception did not wane until 2011 approached and it appeared that the repeal would not be made permanent.

The transition from the temporary estate tax repeal to the current law, which has no expiration date, took part in two steps: first, through the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, and second, through the American Taxpayer Relief Act of 2012 ("ATRA"). The first of these introduced the idea of "portability," that a surviving spouse could take advantage of the unified credit of the predeceased spouse, even without the traditional credit shelter trust.

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

Wednesday, May 20, 2015

Article On Digital Property And Probate In Florida

Nova Law SchoolStorm Tropea (J.D. Candidate, Nova Southeastern Law School, 2015) recently published an article entitled, Social Media Is Permanent, You Are Not: Evaluating The Digital Property Dilemma In Florida Probate, 39 Nova L. Rev. 91-116 (2014). Provided below is an excerpt from the article:

The digital after life  has quickly become the brave new world of probate law and estate planning. The reason for this is because as recently as 2010, reports show that "[seventy-seven percent] of Americans use e-mail or the Internet, at least occasionally."  Yet, a similar study now reveals that number has increased to show that eighty-seven percent of American adults are now using the Internet. More significantly, while nearly nine out of ten Americans from the ages of eighteen through forty-five use the Internet, ninety-seven percent of young adults ages eighteen through twenty-nine are regularly using the Internet.  The Internet has become so prevalent in society that fifty-nine percent of young adults ages eighteen through twenty-nine cite the Internet as their primary source for news, both nationally and internationally. Furthermore, research shows that nearly eig ht out of ten young adults ages eighteen through twenty-four "have created their own social networking profile." With this expanding popularity, words like selfie and social media have now been deeply ingrained in our language, and it seems like social networking, e-mail, and microblogging are here to stay; unfortunately, we are not. Therefore, this continually debated legal question still exists: What happens to our digital assets when we die? 

May 20, 2015 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, May 17, 2015

Article On Testamentary Restraint On Choice Of Same Sex Marriage Partner

Emylee PopoffEmalee G. Popoff (J.D. Candidate, Drexel University School of Law, May 2015) recently published an article entitled, Testamentary Conditions In Restraint Of The Marriage Of Homosexual Donees, 7 Drexel L. Rev. 163-193 (2014). Provided below is an abstract of the article:

Courts generally enforce conditions on inheritance; however, conditions restricting the conjugal choices of donees are sometimes held unenforceable on public policy grounds. These policies have not yet been applied to testamentary conditions in restraint of the marriage of homosexual donees.


Today, attitudes toward homosexuality are changing. At the same time, the use of incentive trusts and other conditional testamentary gifts is on the rise. Given the political trend in many jurisdictions toward treating homosexual relationships like heterosexual relationships, the resulting backlash against homosexuality, and the recent increase in the use of incentive trusts and other conditional testamentary gifts, testamentary gifts conditioned on the conjugal choices of homosexual donees are likely to be-come more common.


There is reason to believe that, in certain circumstances, courts would not consider a donee’s sexual orientation relevant to such conditions’ enforceability, even with respect to conditions restricting the donee’s marriage to a person of a particular sex. This Note argues that courts should consider a donee’s sexual orientation in determining whether a condition in restraint of the donee’s marriage is enforceable or void as against public policy.

May 17, 2015 in Articles, Estate Administration, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, May 14, 2015

Article on Valuation, Penalty, and Liability Issues in the Federal Estate Tax

Nikki LaingNikki Laing (Capshaw Green, PLLC) recently published an article entitled, Expect the Unexpected: Valuation, Penalty, and Liability Issues in the Context of the Federal Estate Tax (May 3, 2015).  Provided below is the abstract from SSRN:

Failing to timely file the estate tax return, timely pay the estate tax, and properly report the values of the gross estate and related deductions can result in significant financial penalties not only to the estate, but to the personal representative and beneficiaries of the estate, as well. This article explores statutes and recent case law regarding issues involving valuation, penalties, and liability that can crop up when dealing with the federal estate tax.

May 14, 2015 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2015

Article on Illinois Trusts and Estates

Last will and testamentSusan T. Bart (Sidley Austin LLP), Jennifer L. Bunker (Zukowski Law Offices) and Sonia D. Coleman (Law Office of Sonia D. Coleman) recently published an article entitled, Survey of Illinois Law: Trusts and Estates, 38 S. Ill. U. L.J. 615-648 (2014).  Provided below is a portion of the article’s introduction:

In Dehart v. Dehart, the Illinois Supreme Court adopted the legal doctrine of equitable adoption and clearly set forth the tests for other legal doctrines concerning will contests including: lack of testamentary capacity; undue influence; fraudulent inducement; and intentional interference with testamentary expectancy. Thus, DeHart is useful not only for the new law set forth therein, but it is also useful as an explanation of more established doctrines and an example of how they are applied.

Decedent, Donald M. DeHart, held Plaintiff, James Thomas DeHart, out to individuals and institutions as his son for more than sixty years, including listing Plaintiff as his son when making arrangements for his own funeral in May 2003.  In fact, Plaintiff, born in 1944, used a birth certificate listing the Decedent as his father throughout his lifetime until he was required in 2000 to obtain a certified copy of his birth certificate from the Cook County Office of Vital Statistics in order to obtain a passport. The certified birth certificate Plaintiff received did not list the Decedent’s name as his father but instead listed his father as James Thomas Staley, Sr. It also listed the Plaintiff’s name as James Thomas Staley, Jr.

May 12, 2015 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2015

Article on Estate Tax and Family Law

Margaret RyzanarMargaret Ryznar (Indiana University Robert H. McKinney School of Law) recently published an article entitled, The Odd Couple: The Estate Tax and Family Law, Louisiana Law Review, Forthcoming.  Provided below is the abstract from SSRN:

Although the estate tax is dynamic and frequently the center of tax policy debates, the right to inherit in the United States and many other countries is well-established. In the United States, inheritance rights are deeply rooted in the law. There also have been many economic arguments offered to support inheritance rights, often hinged on the positive incentives created by inheritance. However, there is another important reason for inheritance that this Article considers — the family.

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

May 11, 2015 in Articles, Estate Administration, Estate Planning - Generally, Estate Tax | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2015

Article On When A Trust Protector Is A Fiduciary

Richard-Ausness-FULLRichard C. Ausness (Professor of Law, University of Kentucky College of Law) recently published an article entitled, When is a Trust Protector a Fiduciary?, Quinnipiac Probate Law Journal, Vol. 27, No. 3 (2014). Provided below is an excerpt from the article:

The use of trust protectors has become increasingly popular in the past twenty years. This is largely due to the fact that settlors can use trust protectors to provide more flexibility in trust management, especially for long-term trusts. However, the use of trust protectors is not without some risk. First of all, the legal status of trust protectors is not explicitly recognized in some states. Furthermore, even in those states which do recognize the legality of trust protectors, the nature and extent of their powers is sometimes not always clear. Finally, there is the vexing question of whether trust protectors owe any fiduciary duties, and if so, what the nature of these fiduciary duties may be. In this Article, I will address a number of issues relating to the fiduciary duties of trust protectors.

Part I will briefly discuss the origins and legal status of trust protectors in the United States. Part II will examine the fiduciary duties of trustees and trust advisors in order to determine whether any of the fiduciary obligations imposed by law on other trust officers may be applied to trust protectors as well. In addition, Part II will consider statutes and case law on the subject in both foreign and American jurisdictions. Part III will explore the question of fiduciary duties in more depth and will conclude that the law should impose certain fiduciary duties on trust protectors, such as the duties of good faith, loyalty, impartiality, and independence. At the same time, it concludes that settlors should be given the power to modify these duties through appropriate language in the trust instrument. Finally, Part IV will suggest several drafting solutions that may reduce some of the uncertainty about the nature of a trust protector's fiduciary responsibilities.

May 10, 2015 in Articles, Estate Administration, Trusts | Permalink | Comments (0) | TrackBack (0)