Wills, Trusts & Estates Prof Blog

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

Tuesday, May 3, 2016

Article On The Slayer Rule And Contingent Beneficiaries

Pen and PaperKevin Bennardo (Professor of Law, Indiana University Robert H. McKinney School of Law) recently published an article entitled, Slaying Contingent Beneficiaries, 24 U. Miami Bus. L. Rev. 31. Provided below is an abstract of the article:

This Article analyzes what impact, if any, the slaying of one beneficiary by another should have on distribution of a decedent’s property. This issue could arise in a variety of conveyances, such as intestate succession, wills, pay-on-death bank accounts, transfer-on-death securities, or life insurance proceeds. Based on equity, the Restatement (Third) of Restitution takes the position that a beneficiary may never move forward in the line of succession as the result of a slaying. This result is thought to be an extension of the traditional “slayer rule,” which disallows a slayer from inheriting from her victim.

The Article argues for the opposite conclusion: the slaying of a higher-priority beneficiary by a contingent beneficiary does not result in unjust enrichment because it does not result in a transfer of a property interest to the slayer. Although the slayer advances in the line of succession as a result of the slaying, the slayer still only possesses a defeasible expectancy, not a property interest. Because an expectancy is the legal equivalent of nothing, the slayer has not profited as a result of the killing.

May 3, 2016 in Articles | Permalink | Comments (0)

Monday, May 2, 2016

Article On Special Needs Planning

KrooksBernard A Krooks (Littman Krooks LLP New York, New York) recently published an outline entitled, Special Needs – Special Trusts – What You Don’t Know Can Hurt Your Clients And You!, Wealth Strategies Journal, reprinted with permission of the Heckerling Institute and the University of Miami School of Law (2016)Provided below is an abstract of the article:

Special needs planning is a niche practice area within the estate planning field that requires a working knowledge of many different areas of the law, including tax, public benefits, trusts and estates, among many others. The experienced special needs planning practitioner will not only know the law, but will also be in a position to offer practical advice to his clients that will improve the lives of individuals with disabilities and their families. It is also very important to be familiar with local practice as this often differs from state to state or even from county to county. One aspect of special needs planning is special needs trusts (“SNT”s). This outline will explore the different types of SNTs available and when it is appropriate to consider them. The outline will also address certain drafting and administration issues.

May 2, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, April 29, 2016

Article On Inheritance Penalties For Children In Nontraditional Families

Pen and PaperDanaya C. Wright (Professor, Levin College of Law) recently published an article entitled, Inheritance Equity: Reforming The Inheritance Penalties Facing Children In Nontraditional Families, Cornell J.L. & Pub. Pol'y Vol. 25, No. 1 (Fall 2015). Provided below is an abstract of the article:

This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families—single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives—their right to inherit from the persons who function as their parents is severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states’ family law codes.

April 29, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 27, 2016

Article On Inheritance Equity In Non-Traditional Families

Pen and PaperDanaya C. Wright (University of Florida Levin College of Law) recently published an article entitled, Inheritance Equity: Reforming the Inheritance Penalties Facing Children in Non-Traditional Families, 36 Cornell J. of L. & Pub. Pol'y 1 (2015). Provided below is an abstract of the article:

This Article examines how more than 50% of children living today may be disadvantaged by 1950s era inheritance laws that privilege and protect only those children living in nuclear families with their biological parents. Because so many children today are living in blended families — single-parent families, lesbian, gay, bisexual, transgender, or queer/questioning (LGBTQ) families, or are living with relatives — their right to inherit from the persons who function as their parents are severely limited by most state probate codes, even though they would likely be entitled to child support under the parent-child definitions of most of those states' family law codes. In the unusual case of second-parent adoptions by the partner of a biological parent, many children will be cut off from being able to inherit from their biological parent, which is a truly unanticipated consequence of the “fresh start” provision of most probate codes that delineate the rights of adopted children. This article explores the vast scope of the inheritance penalty, including the history of equitable adoption doctrines and attitudes about parenting. It includes model statutory language to resolve some of the myriad disabilities in these probate codes and a chart detailing how the adoption and inheritance laws of all fifty states interact to create the inheritance penalty.

 

 

April 27, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, April 26, 2016

Article On Reforming The UPC To Benefit Certain Cabin Owners

ArticlePictureLisa C. Willcox (J.D. Candidate 2016, University of Colorado School of Law) recently pubished an article entitled, You can't choose your family, but you should choose your co-tenants: reforming the UPC to benefit the modest-means family cabin owner, 87 U. Colo. L. Rev. 307-350 (2016). Provided below is an excerpt from the article:

This Comment explores some of the numerous issues that accompany owning and passing on a cabin and, in particular, focuses on the problems that arise from co-ownership among siblings in real property that has significant sentimental value. In order to address and help alleviate the problems co-owners face in this context, this Comment argues for two legislative actions states should implement to facilitate sibling coownership. First, this Comment proposes over-arching changes to the Uniform Probate Code (UPC). The proposed changes would ensure that those entering co-tenancies2 do so with eyes open to the potential problems associated with co-tenancies. The changes would allow for those who want a co-tenancy to buy out any would-be co-tenant who does not wish to accept the responsibility and costs at the outset,3 instead of waiting for future problems to prompt a partition proceeding.4 Through knowledge of each co-tenant’s rights and responsibilities from the beginning of the co-tenancy relationship, along with a procedure to “opt out” of the co-tenancy, family cabin owners will have a more stable relationship, and thus a more longterm one. Modifying the UPC as proposed would help effectuate the goal of most family cabin owners—to keep the cabin in the family—while promoting family harmony. Additionally, this change would help family cabin owners of modest means keep the cabin without the need for complex and expensive planning options. 

April 26, 2016 in Articles | Permalink | Comments (0)

Monday, April 25, 2016

Article on Minimizing Probate-Error Risk

ArticleMark Glover (Professor of Law, University of Wyoming College of Law) recently published an article entitled, Minimizing Probate-Error Risk, 49 U. Mich. J.L. Reform 335-404 (2016). Provided below is an excerpt from the article:

By prescribing the method by which courts evaluate the authenticity of wills, the law of will-execution allocates probate-error risk between false-positive outcomes and false-negative outcomes. When the court validates an inauthentic will, the result is a false-positive outcome. When the court invalidates an authentic will, the result is a false-negative outcome. Because false-positive outcomes result in the admission to probate of inauthentic wills and false-negative outcomes result in the denial of probate of genuine wills, both can be characterized as probate errors.

This framework has been used to identify the problem with the conventional law of will-execution, which is that it heavily allocates risk in favor of false-negative outcomes and consequently produces probate errors that could easily be avoided. It has also clarified the objective of will-execution reform, which is to reallocate risk more evenly between false-positive outcomes and false-negative outcomes so that the total number of probate errors is minimized.

April 25, 2016 in Articles, Wills | Permalink | Comments (0)

Thursday, April 21, 2016

Article On The Difficulties In Taxing Wealth

ArticleMiranda Perry Fleischer (Professor, University of San Diego School of Law) recently published an article entitled, Not so Fast: The Hidden Difficulties of Taxing Wealth, San Diego Legal Studies Paper No. 16-213. Provided below is an abstract of the article:

As an antidote to increasing inequality, policymakers and academics frequently call for heavier taxes on the wealthy. To those outside the tax academy, proposals such as increasing marginal rates, implementing a wealth tax, or strengthening the estate tax likely sound like variations on the same theme. Many discussions of using the tax system to fight inequality therefore ignore differences among tax instruments. As this Essay shows, using the tax system to fight inequality requires careful consideration of both normative and practical concerns. Certain goals (for example, the concern that wealth concentrations harm the political and economic systems) suggest taxing wealth itself via an annual wealth tax as an ideal solution. Not only would such a tax be hobbled by administrative and valuation concerns, however, it is likely unconstitutional. The optimal second-best solution would be to tax capital gains at death, thereby closing the loophole that allows untaxed appreciation at death forever to escape taxation. In contrast, other goals (such as equality of opportunity) counsel taxing wealth transfers as an ideal matter. Best reflecting that goal is an accessions tax that taxes transferees on the cumulative amount of gifts and bequests received. One unintended consequence of wealth transfer taxes, however, is that they likely spur families to engage in greater consumption, much of which may exacerbate inequality of opportunity. This consequence means that taxation must also be coupled with greater leveling up efforts that provide children born to less-financially advantaged families with opportunities to develop their talents and abilities.

April 21, 2016 in Articles, Income Tax | Permalink | Comments (0)

Wednesday, April 20, 2016

Article On European Regulation On Succession

ArticleMariusz Zalucki (Andrzej Frycz Modrzewski Kracow University) recently published an article entitled, New Revolutionary European Regulation on Succession Matters; Key Issues and Doubts. Provided below is an abstract of the article:

European Regulation No. 650/2012 on succession matters begins to be applied. Across most of Europe, it is anticipated that "the new rules will make life easier". Its subject matter is concerned with the private international law issues which arise in the context of succession and wills. It contains uniform rules concerning jurisdiction, choice of law, and the international recognition and enforcement of judgments and related instruments in this field. As it can be best judged, in the nearest future the Regulation will cause some controversy. In this text the author tries to present the key issues of the Regulation and outlines the first doubts that may arise from the application of this act.

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

Tuesday, April 19, 2016

Article On Sham Trusts

Pen and PaperJacob C. Jorgensen (CIArd) recently published an article entitled, Sham Trusts. Provided below is an abstract of the article:

From a settlor’s point of view the major disadvantage of creating a trust is that he or she will have to transfer the legal ownership of and thus the control over the trust property to a trustee in order to enjoy the benefits, which a trust offers in relation to creditor protection, tax planning, estate planning, etc. It is therefore not surprising that most of the case law on sham trusts concerns how trustees and settlors have attempted to circumvent this fundamental legal requirement in the contractual relationship between them. This article by Jacob C. Jørgensen examines under which conditions a trust may be successfully challenged as a sham.

April 19, 2016 in Articles, Trusts | Permalink | Comments (0)

Monday, April 18, 2016

New Article On Russian Federation Estate Legislation

RussiaJulia Grunina (Gaidar Institute for Economic Policy) & Irina Tolmacheva (Gaidar Institute for Economic Policy) recently published an article entitled, Review of the Economic Legislation, Russian Economic Developments, 2016, Moscow, IEP Publishers, pp. 94-95. Provided below is an abstract of the article:

In February, the following main amendments were introduced into the legislation: a Civil Code norm as regards refusal of the heir from the estate in favor of other persons was brought in compliance with the Resolution of the Constitutional Court of the Russian Federation; provisions of a number of laws on individual types of non-profit organizations were brought in harmony with provisions of the Civil Code of the Russian Federation; the list of higher education establishments which were granted the right to carry out supplementary profile testing for admission was approved.

April 18, 2016 in Articles, New Legislation | Permalink | Comments (0)