Wills, Trusts & Estates Prof Blog

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

Wednesday, August 15, 2018

Article of Japanese Law and the Global Diffusion of Trust and Fiduciary Law

JapanMasayuki Tamaruya recently published an Article entitled, Japanese Law and the Global Diffusion of Trust and Fiduciary Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This article will trace the paths of trust law diffusion, with the dual aim of identifying the role of Japanese law in shaping the global evolution of the fiduciary norm and examining the doctrinal and conceptual implication that the understanding of these historic paths can bring about. The path of trust diffusion that started from England in the seventeenth century diverged into two routes. One route went around the Cape of Good Hope toward the East, through South Africa and India. The other path went West, crossing the Atlantic and across North America. These two routes met with each other in the early twentieth century, when the Trust Act of 1922 was introduced in Japan. The westbound diffusion continued when Japan imposed its law and industry regulation in Taiwan and Korea as part of its colonial expansion. While the colonial impact diminished over time after World War II, the common self-identification as civil-law jurisdictions and the similarities in economic growth models have led to the development of parallel trust doctrines in South Korea and Taiwan. On the eastbound route, Hong Kong and Singapore have emerged as the two major commercial hubs in Asia with vibrant trust practices based on English common law. Today, these two routes converge in mainland China, where trust industries have played a vital role in the development of the Chinese market economy since Den Xiao Ping declared the opening up policy in 1979. Over a long period of time and across a number of jurisdictional borders, many factors interacted to shape the law and practice of trusts. Those factors included financial pressures, legislative imitations, academic exchange of ideas, colonial rules, commercial competitions, and shifts in national wealth and demographics. Despite some signs of the harmonization of trust law worldwide, in the increasingly competitive global economy, trust service providers and their host jurisdictions are vying with each other for comparative advantages.

August 15, 2018 in Articles, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Tuesday, August 14, 2018

Article on Recent Case: Intestacy, Wills, Probate, and Trusts

Will and testamentGerry W. Beyer recently published an Article entitled, Recent Case: Intestacy, Wills, Probate, and Trusts, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This is the Summer 2018 edition of my article discussing recent judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.

August 14, 2018 in Articles, Estate Administration, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Monday, August 13, 2018

Article on Homestead: A (New) Hope

HomeThomas E. Simmons recently published an Article entitled, Homestead: A (New) Hope, 63 S.D. L. Rev. 75-130 (2018). Provided below is an abstract of the Article:

A finely-tuned balancing of the free functioning of private and commercial enterprise against a family's interests in shelter and a home is at the heart of homestead exemption laws. In South Dakota's history, this balancing act has been displayed over a 145-year history in the form of legislative enactments, judicial decisions, and referendums. This history illuminates the expression of values against the dynamics of rule-making. A previously published article in this review, Prequel to Homestead, outlined South Dakota's homestead laws under the contemporary statutory framework and also considered the constitutional history of homestead laws leading up to South Dakota's becoming a state in 1889. This article picks up where the prior article left off and presents judicial decisions dealing with the constitutional ambits of the homestead exemption beginning in 1889 and continuing through today. It concludes with an assessment of an unresolved homestead issue in the context of asset protection: whether a trust-owned or entity-owned home qualifies for homestead protection rights.

The policy of the law is to preserve a home for the family even at the sacrifice of just demands.

 

August 13, 2018 in Articles, Disability Planning - Property Management | Permalink | Comments (0)

Friday, August 10, 2018

Article on Restricted Charitable Gifts: Public Benefit, Public Voice

Charity2Susan N. Gray recently published an Article entitled, Restricted Charitable Gifts: Public Benefit, Public Voice, 81 Alb. L. Rev. 565-608 (2017-2018). Provided below is the beginning of the introduction to the article.

Donors who contribute to charities or create new charities often have specific intentions about the use of their donated assets. One donor may want to ensure that the charity follows the donor s personal views about how best to address climate change. Another donor may want to support an already established program for homeless youth. And a third donor may want to devote resources to finding a cure for the Zika virus. These donors may impose restrictions on their gifts, trying to require the charity to honor their wishes over time, but over time, things change. What if the donors views about climate change become outdated and the charity identifies strategies that the charity concludes will be more effective? What if the charity wants to expand its program for homeless youth to include veterans or mothers with children? And what if scientists find a cure for the Zika virus, but plenty of other mosquito-borne viruses continue to plague humans?

August 10, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, August 8, 2018

Article on The Case for Preempting SALT Cap Workarounds

SaltHayes Holderness recently published an Article entitled, The Case for Preempting SALT Cap Workarounds, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

A growing number of states are considering or enacting state laws designed to counteract the Tax Cuts and Jobs Act’s $10,000 cap on the federal state and local tax deduction. These state workarounds appear technically functional at first glance but run into a deeper problem on further examination: they may be preempted as frustrating the objectives of Congress. This essay explores the case for and against preemption of these workarounds. The states’ frontal attack on the state and local tax deduction cap may prove the key to their demise, even though the states are exercising basic state powers which the courts have been loath to preempt.

August 8, 2018 in Articles, Current Affairs, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, August 7, 2018

Article on The Charitable Contribution Strategy: An Ineffective SALT Substitute

UstaxAndy Grewal recently published an Article entitled, The Charitable Contribution Strategy: An Ineffective SALT Substitute, Tax Law: Tax Law and Policy eJournal (2018). Provided below is an abstract of the Article:

Various states have proposed or enacted laws designed to circumvent the new $10,000 federal limit on state and local tax deductions. The new laws generally contemplate that taxpayers will substitute their tax payments with charitable contributions to state-controlled funds. This Article explores whether that strategy works and concludes that it does not. It also considers the IRS’s recent notice on the strategy and offers recommendations on how to best draft regulations.

August 7, 2018 in Articles, Current Affairs, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, August 6, 2018

Article on Postmortem Austerity and Entitlement Reform

SSReid K. Weisbord recently published an Article entitled, Postmortem Austerity and Entitlement Reform, Wills, Trusts & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that, if austerity becomes necessary, federal entitlement reforms should be implemented progressively in a manner that minimizes displacement of benefits on which individuals relied when saving for old age. A policy of postmortem austerity would establish new eligibility criteria for Social Security and Medicare that postpone the effective date and economic consequences of benefit ineligibility until after death. All individuals would continue to collect federal entitlements during life, but at death, wealthy decedents would be deemed retroactively disqualified from part or all of Social Security and Medicare benefits received during life. The estates of such decedents would then be liable for repayment of disqualified benefits.

August 6, 2018 in Articles, Current Affairs, Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, August 5, 2018

Article on Taxes and Penalties on Unreported Foreign Assets: Who Foots the Bill?

BeachBrian C. Skarlatos & Michael Sardar recently published an Article entitled, Taxes and Penalties on Unreported Foreign Assets: Who Foots the Bill?, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article:

Brian and Helena are getting divorced. Brian has a successful electronics company that sells products around the world. Several years ago, a European customer owed a lot of money to Brian’s company and Brian instructed the customer to divert part of the payment to a numbered bank account in the Channel Islands controlled by Brian. The account now has a little over one million dollars. Helena has always known about the account and now she is threatening to tell the judge, or worse, call the Internal Revenue Service, unless Brian agrees to her settlement proposal.

What can Brian do? What are the tax consequences? Could there be penalties? More importantly, does Brian have criminal exposure? And who bears the cost of all the taxes and penalties associated with the unreported foreign account: is it all Brian’s burden; or is Helena jointly responsible?

Matrimonial lawyers often think of tax issues in terms of who is an “innocent spouse,” but that does not fully capture the proper analysis required when dealing with unreported foreign assets. When such assets surface in a divorce, the most important issue is whether either of the spouses “willfully” failed to report the foreign assets because “willfulness” could trigger a criminal prosecution, or huge civil penalties, either of which could wipe out the marital estate. Secondarily, there are issues relating to innocent spouse treatment under the Internal Revenue Code (I.R.C.) and separate issues relating to how a matrimonial court will allocate any tax liabilities relating to the unreported foreign account.

This article is not about how to find foreign assets. That is a question for a good forensic accountant, though it is important to understand that foreign accounts often can be traced through a careful review of bank statements and financial transactions. In addition, new laws are requiring foreign financial institutions around the world to report foreign accounts held by their U.S. customers to the Internal Revenue Service (IRS), making it easier for the IRS, creditors, and spouses to uncover such accounts.

This article is about what to do when unreported foreign assets come to light in a divorce and will help practitioners evaluate the available alternatives and associated risks and costs. Part I outlines many of the various reporting requirements for foreign assets and the related civil penalties. Part II discusses the willfulness standard and when huge penalties, or even criminal prosecution and potential imprisonment, must be considered. Part III reviews the options available to a taxpayer who has foreign assets, including the voluntary disclosure programs that can be used to minimize the civil penalties and avoid criminal prosecution. Part IV addresses strategies for dealing with taxes and penalties when unreported foreign assets surface in a divorce case. The conclusion summarizes an analytical framework for approaching issues involving unreported foreign assets.

August 5, 2018 in Articles, Estate Planning - Generally, Income Tax, Travel | Permalink | Comments (0)

Friday, August 3, 2018

Article on Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion

ChanceryDominic J. Campisi, Evan D. Winet, & Jake Calvert recently published an Article entitled, Undue Influence: The Gap Between Current Law and Scientific Approaches to Decision-Making and Persuasion, 43 ACTEC L.J. 359 (Spring 2018). Provided below is an abstract of the Article:

"And the devil hath power t'assume a pleasing shape. Yea, and perhaps out of my weakness and my melancholy, as he is very potent with such spirits, abuses me to damn me."

Financial elder abuse encompasses a broad set of situations and misconduct involving the vulnerability of disabled and aged individuals to predation by relatives, employees, strangers and professionals. Financial elder abuse is an offshoot of long-standing principles and remedies for undue influence and fraud in estate planning and gifts, as well as disputes over enforcement of contracts and unjust enrichment.

English Courts, as any viewer of Masterpiece Theatre, or reader of Dickens or Trollope knows, have long dealt with undue influence. Francis Bacon, ruling in the High Court of Chancery in 1617, found undue influence where the 80 year old George Lydiatt, "being weak of body and understanding and having a great estate of goods and lands" was influenced by Anne, who

did so work upon his simplicity and weakness and by her dalliance and pretence [sic] of love unto him and of intention after the death of her then husband to marry him, and by sundry adulterous courses with him and sorcery and kindred, telling him something they would poison him and sometimes that they would rob him, whereby she obtained his personal estate by transfers and execution of a will disinheriting his kindred?

August 3, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, August 2, 2018

Article on Postmortem Austerity and Entitlement Reform

Ss2Reid K. Weisbord recently published an Article entitled, Postmortem Austerity and Entitlement Reform, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that, if austerity becomes necessary, federal entitlement reforms should be implemented progressively in a manner that minimizes displacement of benefits on which individuals relied when saving for old age. A policy of postmortem austerity would establish new eligibility criteria for Social Security and Medicare that postpone the effective date and economic consequences of benefit ineligibility until after death. All individuals would continue to collect federal entitlements during life, but at death, wealthy decedents would be deemed retroactively disqualified from part or all of Social Security and Medicare benefits received during life. The estates of such decedents would then be liable for repayment of disqualified benefits.

August 2, 2018 in Articles, Current Affairs, Estate Planning - Generally, New Legislation | Permalink | Comments (0)