Wills, Trusts & Estates Prof Blog

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

Tuesday, February 9, 2016

Article On European Cross-Border Succession

EUMireia Artigot-Golobardes (Professor, Universitat Pompeu Fabra Law School) recently published an article entitled, Will Regulation 650/2012 Simplify Cross-Border Successions in Europe?, 4 Eur. Prop. L. J. 1 (2015). Provided below is an abstract of the article:

This paper addresses recent changes in European succession law brought about by the European Commission’s "Regulation on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession." One of the most important issues that this Regulation addresses is the determination of the law applicable to a given succession for nationals of one member state with habitual residence in another member state. The Regulation provides that successions for those who die in this situation are governed by the law of the state in which they had their habitual residence at death. This paper questions whether the Regulation will simplify and reduce transaction costs in cross-border successions from two perspectives: First, from the perspective of whether the Regulation will increase or decrease the application of a given state's substantive succession law, and, second, from the perspective of the effect of its choice of laws rule on property entitlements given the variation in forced inheritance rules and clawback provisions across EU member states. These issues raise important questions about whether the Regulation will bring about the simplicity its drafters seek.

February 9, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, February 8, 2016

Article On Small Trust Termination Statutes

ArticlePictureAlyssa A. DiRusso (Professor of Law, Cumberland School of Law) recently published an article entitled, Euthanizing Small Charities: The Threat of Small Trust Termination Statutes, 45 Cumberland L. Rev. 475 (2015). Provided below is an abstract of the article:

With the widespread adoption of the Uniform Trust Code, many American states are enacting statutes that grant a trustee full discretion to terminate a trust on the sole ground that it has too little money to justify administrative expenses. This Article argues that there are two key costs of terminating small charities: depleting democracy in philanthropy and shrinking diversity in charitable focus. To support these claims of harm to democracy and diversity in charity, the Article reviews empirical evidence mined from tax returns: first, on disparity between charitable goals of the well-funded trust and the less-so, and second, on diversity of focus in smaller versus larger charities. The analysis reveals that smaller charities do tend to have different substantive primary goals than larger charities and that smaller charities do demonstrate more variety in focus than larger charities. We therefore may threaten democratic and diverse charity when terminating small charitable trusts, and ought to be reluctant to put our smaller charities to sleep.

February 8, 2016 in Articles, Trusts | Permalink | Comments (0)

Sunday, February 7, 2016

Article On Contingent Beneficiaries

ArticlePictureKevin 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.

February 7, 2016 in Articles, Trusts, Wills | Permalink | Comments (0)

Saturday, February 6, 2016

Article On Non-Delegation Principle In Commonwealth Countries

ArticlePictureLionel Smith ( McGill University, Faculty of Law) recently published an article entitled, What is Left of the Non-Delegation Principle?, Current Issues in Succession Law (Hart, 2016, Forthcoming). Provided below is an abstract of the article:

In 1944, the House of Lords held that outside of the field of charitable bequests, a testator cannot delegate the power to select who will benefit from his estate. This holding has never been called into question by English appellate courts, and has been followed in many Commonwealth jurisdictions. If taken seriously, however, this principle would seem to exclude the possibility of giving executors, estate trustees, or other persons any discretionary powers relating to the distribution of the estate. And yet, not only were such powers taken to be valid before 1944, but a significant number of decisions afterwards have held that such powers can be created, and indeed that there is no limit on how wide they can be; a testator may create a ‘general’ power which allows the donee of the power to distribute the relevant property among anyone in the world. What, if anything, is left of the non-delegation principle? This paper synthesis several decades of case law and commentary to reach the paradoxical conclusion that the common law does, and does not, allow a testator to delegate his will-making power.

February 6, 2016 in Articles, Wills | Permalink | Comments (0)

Article On Jurisprudence of the Forced Share

ArticlePictureCharles J. Reid Jr. (Professor, University of St. Thomas School of Law (Minnesota)) recently published an article entitled, The Jurisprudence of the Forced Share: The High and Late Middle Ages, U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-02. Provided below is an abstract of the article:

This paper represents a continuation of themes I explored in The Jurisprudence of the Forced Share in the Ancient World. The article is divided into four main sections. In the first two sections, I examine three basic sets of ideas that would prove of vital significance to medieval lawyers as they justified the forced share. These were: (1) the ideal of reciprocity that came to be expressed in the noun pietas; (2) the relationship of natural law and natural rights to the moral obligation to provide for one's young; and (3) the expectation that all families would be characterized by an ideal the scholastic writers called natural love. The second two sections of the paper then explore principally the writings of the medieval canon lawyers and focus on several related themes: (1) the reemergence of the idea of testamentary freedom and the corresponding effort to restrain it through the mechanism of the forced share; (2) the jurisdictional claims of the Church to interpret wills and to judge testamentary disputes; and (3) the justification of the forced share as the final legal expression of pietas, reciprocity, natural love and natural rights.

February 6, 2016 in Articles | Permalink | Comments (0)

Tuesday, February 2, 2016

Article On The Top IRA Complexities For Estate Planners

Pen and PaperWarren L. Baker recently published an article entitled, Self-directed IRAs –Top Five Complexities for Estate Planning Attorneys, 41 Real Prop., Tr. & Prob. 1 (2014). Provided below is an excerpt from the article:

Over the past decade, the term “self-directed IRA” has become a more widely used term within the financial world, but its exact meaning is still quite vague. Generally, the term “self-directed IRA” (“SDIRA”) is used to describe an IRA that is able to invest in “alternative” or “nontraditional” assets, although even those terms are difficult to define. After all, more and more brokerage firms have increased the ability of their account holders to invest in assets that do not fall into the traditional categories of “stocks, bonds, and mutual funds,” though these brokers generally stop short of allowing investments in privately held companies, real estate, and other more obscure (but legally permissible) IRA investments. After a brief discussion of the three basic types of SDIRAs, this article focuses on five challenges that arise for estate planning attorneys when a client holds a SDIRA which either directly or indirectly (i.e. through an entity) invests in “nontraditional” investments. Many of the complexities discussed in this article are not entirely unique to SDIRAs, but the specific challenges are often magnified because of the illiquidity or uncertain value of the assets in which they invest.

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

Monday, February 1, 2016

Article On Baby Boomers And The Distribution Phase Of Defined Contribution Retirement Plans

KaplanRichard L. Kaplan (University of Illinois College of Law) recently published an article entitled, What Now? A Boomer’s Baedeker for the Distribution Phase of Defined Contribution Retirement Plans, University of Illinois College of Law Legal Studies Research Paper No. 16-6 (2015). Provided below is an abstract of the article:

Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.

February 1, 2016 in Articles, Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Article On The Rising Popularity Of Trust Protectors

ArticlePictureLawrence A. Frolik (Professor of Law, University of Pittsburgh School of Law) recently published an article entitled, Trust Protectors: Why They Have Become "The Next Big Thing," 50 Real Prop. Tr. & Est. L.J. 267-307 (2015). Provided below is an abstract of the article:

Settlors are increasingly naming trust protectors, particularly for trust that may endure for many years, because of the possible need to amend the trust in light of changing laws and changing circumstances. Trust protectors have also become popular for trusts with beneficiaries who have an intellectual disability that may prevent then from enforcing their beneficial interest in the trust. The selection of a protector, the powers to be granted the protector and the standard of care required of the protector require thoughtful consideration. This article also discusses the origin of trust protectors, their current statutory basis, and the few existing cases that analyze the legal status and role of a trust protector.

February 1, 2016 in Articles, Trusts | Permalink | Comments (0)

Sunday, January 31, 2016

Article On The Secret Economy of Charitable Giving

ArticlePictureAllison Anna Tait (Professor of Law, University of Richmond - School of Law) recently published an article entitled, The Secret Economy of Charitable Giving, 95 B.U. L. Rev. 1663-1717 (2015). Provided below is an abstract of the article:

Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms — including the presumption of general charitable intent, the recognition of “wasteful” as a criterion, and the deployment of deviation — and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges — part of the “charitable gift economy.” I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and “warm glow.” Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further.

January 31, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article On The Affect Of Biomarkers For Alzheimer's On End-Of-Life Choices

ArticlePictureRebecca Dresser (Professor of Law, Washington University) recently published an article entitled, A fate worse than death? How biomarkers for Alzheimer's disease could affect end-of-life choices, 12 Ind. Health L. Rev. 651-669 (2015).

For many years, scientists have searched for biological markers of the brain deterioration associated with the cognitive impairments characterizing Alzheimer’s disease (AD). Although the search for useful biomarkers is ongoing, there is increasing evidence that certain brain changes indicate that a person is at relatively high risk of developing full-blown AD. Much of the research on AD biomarkers is motivated by the belief that successful treatment will require very early intervention in the disease process. Unfortunately, by the time people develop the memory and other behavioral problems that are associated with AD, significant brain damage has already occurred. Biomarker tests could give patients and clinicians the opportunity to start drug and other treatments early, with the goal of slowing or stopping the deterioration that can eventually produce the clinical symptoms of AD. We can all hope that the medical promise of AD
biomarkers becomes a reality. But it will take years to determine whether biomarker testing and early intervention produce clear health benefits. Currently available AD treatments are largely ineffective, and early therapeutic intervention remains unproven. Before effective treatment becomes available, many people tested for biomarkers could learn that they are at higher-than average risk of developing AD. Some people will appreciate this early warning, for it will give them an opportunity to get their affairs in order, take a long-desired vacation, and “have the kind of heartfelt talks with their children that that people often put off.”

January 31, 2016 in Articles, Death Event Planning, Science | Permalink | Comments (0)