Tuesday, June 30, 2015
Call For Papers: ACTEC Law Journal -- Estate Planning In the 21st Century: Seismic Shifts and Predictions for the Future
The American College of Trust and Estate Counsel announces a Call For Papers on the following topics:
Estate planning has radically changed in the last several decades. Statutes such as the Uniform Probate Code and the Uniform Parentage Act altered the presumptive definitions of such terms as "children" and "descendants" to include a much broader range of beneficiaries, including adoptees, out-of-wedlock children, and in some cases foster children and stepchildren. Some children may now inherit from more than two parents. Very recent changes have broadened those allowed to marry and thus inherit in intestacy from each other. The assets dealt with by estate planners have transformed dramatically, with the rise in the acceptance of non-probate forms of title, digital assets, etc. Perpetual trusts, once allowed only for charities, now exist for families, with attendant issues such as decanting, virtual representation, and non-judicial trust modification. Advance health care directives have become a common tool in the estate planner's box, and in a few states estate planners may deal with clients opting for physician aid in dying. Papers will address ways in which estate planning has transformed in the last 20, 30 or 40 years, and how it may continue to change over a comparable time in the future.
We encourage submissions by co-authors, especially those teaming an experienced estate planning with novices or students. Articles that delve into one or two changes deeply are preferred over those which skim multiple changes. Accepted articles will be published in the ACTEC Law Journal, Volume 41 Issue 2.
Deadline for submissions: December 1, 2015 to Professor Kris Knaplund, Editor, ACTEC Law Journal, at firstname.lastname@example.org. Footnotes should use conventional Bluebook form. Early submissions are encouraged and will be reviewed on a rolling basis.
Monday, June 29, 2015
David Horton (Professor, University of California, Davis - School of Law), recently published an article entitled, In Partial Defense of Probate: Evidence from Alameda County, California, 103 Georgetown Law Journal 605 (2015). Provided below is an abstract of the article:
For five decades, probate — the court-supervised administration of decedents’ estates — has been condemned as unnecessary, slow, expensive, and intrusive. This backlash has transformed succession in the U.S., as probate avoidance has become a booming industry and contract-like devices such as life insurance, transfer-on-death accounts, and revocable trusts have become the primary engines of intergenerational wealth transmission. Despite this hunger to privatize the inheritance process, we know very little about what happens in contemporary probate court. This Article improves our understanding of this issue by surveying every estate administration stemming from individuals who died in Alameda County, California in 2007. This original dataset of 668 cases challenges some of the most entrenched beliefs about probate. For one, although succession is widely seen as a tranquil process in which beneficiaries settle disputes amicably and pay a decedent’s debts voluntarily, both litigation and creditor’s claims are common. In addition, attorneys’ and personal representatives’ fees are far lower than assumed. The Article then uses these insights to critique the demand for probate avoidance, to contend that probate’s cautious approach to creditors should also govern non-probate transfers, and to suggest reforms to the probate process.
Sunday, June 28, 2015
John Michael Grant (Marval, O'Farrell & Mairal), recently published an article entitled, Complications in Putting Unborn Spoiled Brats to Work: Using Lessons from Labor Supply Theory to Design Incentive Trusts, (June 12, 2015). Provided below is an abstract of the article:
Labor Supply Theory has never been applied to estate planning, despite its relevance to the design of incentive trusts. I first discuss common incentive trust structures and goals, and possible alternative provisions designed to encourage a beneficiary to engage in productive work. Next, I give a brief presentation of labor supply theory and indifference curve modeling. I then apply the models to alternative incentive trust structures and will offer arguments for the adoption of a minimum salary structure with wage enhancements. I conclude by offering reasons to doubt certain underlying assumptions and to hesitate before advising clients to adopt the recommended structure.
Thursday, June 25, 2015
Craig Dickson (Auckland University of Technology), recently published an article entitled, The Digital Legacy Conundrum: Who Really Owns What?, June 4, 2015. Provided below is an abstract of the article:
Previously the distribution of assets following the death of loved one was straightforward. These days however, a lot of the “property” of a deceased and many relevant documents might be only contained on a hard drive, in an e-mail account or in some form of cloud storage. A number of problems can arise when executors attempt to source, access and/or retrieve these “digital assets” left behind by the deceased and many, if not most people do not have a clear or accurate understanding of the extent of their digital estate. Moreover, the many sites where digital assets are located have differing protocols regarding the access that will be granted to executors and Unauthorised access and privacy laws may put executors and trusts and estates lawyers at risk of violating one set of laws (often those of the United States, where many of the social networking and online storage accounts are based), merely for attempting to carry out the duties required of them under another set of laws.
Tuesday, June 16, 2015
Laurel S. Terry (Professor of Law, Pennsylvania State University Dickinson School of Law), recently published an article entitled, U.S. Legal Profession Efforts to Combat Money Laundering and Terrorist Financing, 59 New York Law School Law Review 487 (2015). Provided below is an abstract of the article:
After setting forth introductory material about the intergovernmental organization called the Financial Action task Force or FATF, the FATF Recommendations, and the degree to which the FATF Recommendations have influenced lawyer regulation in other countries, this article examines the manner in which the U.S. government and the legal profession have implemented the FATF Recommendations. The article explains that U.S. lawyers are subject to both criminal and disciplinary sanctions for knowingly engaging in money laundering or terrorist financing or assisting clients involved in such activities. The US actively enforces these provisions and US lawyers have been criminally prosecuted, convicted, and disbarred for assisting clients in money laundering.
Because of the wide array of existing laws that prohibit lawyers from assisting clients who are engaged in money laundering or terrorist financing activities, the U.S. legal profession has focused on what might be called "application" issues. Numerous efforts have been undertaken to educate lawyers so that they recognize the types of situations and fact patterns in which these types of criminals seek to involve lawyers in their activities. The goal of this type of education approach is to make lawyers as sensitive to money laundering and terrorist financing issues at the intake stage as these lawyers are to issues such as conflicts of interest. Moreover, as is true with a conflict of interest analysis, lawyers must continually reassess the situation as new facts emerge. Both the ethics rules and criminal law require lawyers to decline (or terminate) representation if it would result in lawyers assisting client in their criminal activities. The goal of this type of education approach is to have lawyers internalize these issues, rather than simply engaging in a formalistic "check-off-the-box" approach to these issues.
This article documents the education steps that already have been undertaken and outlines some additional steps that could be taken in the future. It concludes that while there is still education work to be done, progress has been made.
Monday, June 15, 2015
Susan Mangiero (Fiduciary Leadership, LLC), recently published an article entitled, An Economist's Perspective of Fiduciary Monitoring, BNA Bloomberg Pension & Benefits Daily, May 2015. Provided below is an abstract of the article:
A central thesis of "An Economist's Perspective of Fiduciary Monitoring of Investments" by Dr. Susan Mangiero is that "ongoing oversight is an exercise in risk management" and that "[r]isk management is a never ending process." The article emphasizes the importance of (a) examining multiple risk factors and not relying on performance numbers alone (b) understanding the presence of financial leverage (should it exist) (c) clarifying the role of a service provider when an outside party is used and (d) letting participants know about the type of monitoring being done by an investment committee.
Sunday, June 14, 2015
M.C. Mirow (Professor of Law, Florida International University College of Law), recently published an article entitled, Testamentary Proceedings in Spanish East Florida, 1783-182, from Studies in Canon Law and Common Law in Honor of R. H. Helmholz, Page 281-301 (Troy L. Harris, ed., Berkeley: The Robbins Collection, 2015). Provided below is an abstract of the article:
The East Florida Papers in the Library of Congress reveal a great deal about law, legal institutions, legal practice, and legality in colonial Florida during the second Spanish period from 1783 to 1821. This contribution provides an initial study of the 372 testamentary proceedings related to 168 decedents recorded in these papers. It describes these cases and discusses the dossier of one case to illustrate the administrative and legal work done by Spanish officials to distribute a decedent's property.
Proceedings include individual claims for debts against estates; sets of documents related to the administration of estates such as wills, inventories, birth records, and marriage records; and a variety of petitions dealing with administration and the distribution of property. The materials provide a window into will making, family life and structure, commerce, women, and accidental and suspicious deaths. Numerous petitions sought the disposition, transfer, and manumission of slaves. The contribution concludes with a description and analysis of the documents related to the estate of Pedro Dimarache, a Corsican carpenter who died testate in St. Augustine in 1792.
Saturday, June 13, 2015
Reid Kress Weisbord (Vice Dean & Professor of Law, Rutgers School of Law), recently published an article entitled, Trust Term Extension, 67 Fla. L. Rev. 73-125 (2015). Provided below is an abstract of the article:
Over the last thirty years, most jurisdictions in the United States have repealed or abrogated the Rule Against Perpetuities, which prohibits perpetual donor control over property. This, in turn, has led estate planning practitioners to consider whether a trust created to comply with the Rule could, after the Rule’s repeal, be extended in perpetuity to provide for future generations of the settlor’s descendants upon petition of the trustee. Trust term extension in this context implicates fundamental questions about the purpose of a trust: For whose benefit—the beneficiaries’, the settlor’s, or the trustee/fiduciary’s—does the trust exist? This Article argues that the purpose of a private donative trust is to benefit beneficiaries selected by the settlor and that perpetual trust conversions are inconsistent with this purpose because they impair the interests of existing beneficiaries by converting remainder interests into less valuable life interests. Financial institutions serving as corporate fiduciaries, however, would further their own pecuniary interests by seeking perpetual trust conversions that extend the duration of commissions charged to the trust for performing administrative and managerial services. The possibility of trust term extension, therefore, not only implicates problems associated with dead hand control of property, but it also creates the potential for tension between corporate trustees and beneficiaries selected by the settlor. This Article, the first to examine the topic of trust term extension critically, argues that courts should reject trustee-proposed perpetual trust conversions for at least two reasons. First, modification should not be granted for the benefit of the fiduciary, particularly at a beneficiary’s expense. Second, an important recent trend in trust law has sought to favor the rights of living beneficiaries over a settlor’s right to exercise dead hand control over trust property, so evidence of what the settlor would have wanted but for the Rule should therefore not override vested beneficial interests.
Friday, June 12, 2015
Lee-ford Tritt (University of Florida - Fredric G. Levin College of Law) recently published an article entitled, Dispatches from the Trenches of America's Great Gun Trust Wars, 108 Northwestern University Law Review 743 (2014). Provided below is an abstract of the article:
Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national discussion concerning the purchase and possession of firearms? Moreover, is recent attention paid to these trusts beneficial to, or distracting from, the broader national discourse concerning federal firearms policy? Unfortunately, America’s gun trust wars have been waged by both sides in an atmosphere of frenzied controversy littered with misinformation. Regardless of the tenor of the debate concerning gun rights and gun control, the fact remains that millions of Americans own firearms, and they have legitimate estate planning concerns. As detailed in this Essay, firearms in an estate can be problematic and may expose an executor, fiduciary, or beneficiary to severe criminal penalties. Although there might be some need for tailored tightening of the laws concerning the transfers to trusts, gun trusts are a legitimate and important estate planning technique with the ability to alleviate the troublingly prejudicial access to guns inherent in current laws. This Essay will examine the legitimate, worrisome, and inaccurate concerns surrounding the uses of gun trusts.
Thursday, June 11, 2015
Jonathan Greenacre (University of New South Wales) & Ross P. Buckley (University of New South Wales - Faculty of Law) recently published an article entitled, Using Trusts to Protect Mobile Money Customers,(2014) Singapore Journal of Legal Studies, 59-78. Provided below is an abstract about the article: