Wills, Trusts & Estates Prof Blog

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

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Friday, April 24, 2015

Article on Privacy Protection in Digital Assets

Digital assetsJeehyeon Jenny Lee (Columbia University Law School) recently published an article entitled, Death and Live Feeds: Privacy Protection in Fiduciary Access to Digital Assets, (Apr. 7, 2015) Columbia Business Law Review, Forthcoming.  Provided below is the abstract from SSRN:

In 2014, the Uniform Law Commission approved the Uniform Fiduciary Access to Digital Assets Act (UFADAA) for enactment by states. After an online user dies, the act gives her fiduciary broad access to her digital assets, such as email and social networking accounts, in the name of "asset neutrality" -- the idea that digital assets should be treated like similar physical assets for the purposes of estate administration. The application of such a concept to our online lives and deaths has significant implications for user privacy and relationships between users and internet service providers. Over 20 states have already introduced bills based on the UFADAA. 

This Note argues that an asset neutral approach to digital assets is fundamentally flawed, particularly with respect to social networking and social media content. Crucially, digital assets are often linked to live, real-time feeds from other users’ accounts, and thus provide access to others’ digital assets. The Note proposes several changes to the UFADAA. Most importantly, in order to protect user privacy, fiduciary access should be limited to only the particular decedent’s digital assets and internet service providers should be required to implement this restriction.

April 24, 2015 in Articles, Estate Administration, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2015

Article on Wills, Trusts, Guardianships and Fiduciary Administration

Mary RadfordMary F. Radford (Marjorie Fine Knowles Professor of Law, Georgia State University College of Law) recently published an article entitled, Wills, Trusts, Guardianships and Fiduciary Administration, 66 Mercer L. Rev. 231-245 (2014).  Provided below is the article’s introduction.

This Article describes selected cases and significant legislation from the period of June 1, 2010 through May 31, 2011 that pertain to Georgia fiduciary law and estate planning.

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

Monday, April 20, 2015

Article on Testamentary Formalism in Louisiana

Last will and testament (old)George Holmes (Louisiana State University) recently published a comment entitled, Testamentary Formalism in Louisiana: Curing Notarial Will Defects Through a Likelihood-of-Fraud Analysis, 75 La. L. Rev. 511-541 (2014).  Provided below is a portion of the article’s introduction:

Before James Holbrook died, he thought that his last will and testament was valid.  The document that he prepared for probate appeared to have all of the requisite formalities for a notarial will required by Louisiana Civil Code article 1577. Unfortunately for Mr. Holbrook’s potential legatees, the date recorded on the attestation clause of the will included the year and the month, but not the day—contrary to the strict requirements of Louisiana law. Although the will was properly dated on every other page, the omission of the date on the attestation clause was due to the fault of the notary who executed the document. Mr. Holbrook’s daughter challenged the validity of the will on the basis of its lack of form; she did not claim the existence of another will. Although the document complied with the statutory formalities of a notarial will in every other respect, a Louisiana circuit court declared his will null for lack of form because of a seemingly minor flaw.

Many people die leaving behind instruments that, although intended to be wills, contain errors that deviate from the statutory requirements. Much like the circuit court that decided Mr. Holbrook’s case, courts across the United States have historically regarded any deviation from the formal requirements of wills as fatal to a will’s validity. One basis for these decisions is that will formalities exist to provide unequivocal evidence of testamentary intent. A conflict arises, however, when the testator’s intent is evident despite the testator’s non-compliance with the formalities. In such cases, wills are often invalidated notwithstanding the clear intent of the testator to leave a will.

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

Saturday, April 18, 2015

Article on Charitable Bequests

Elizabeth CarterElizabeth R. Carter (Louisiana State University) recently published an article entitled, Tipping the Scales in Favor of Charitable Bequests: A Critique, 34 Pace L. Rev. 983-1040 (2014).  Provided below is the article’s abstract:

The public policy favoring testamentary bequests to charities is well established in the law. However, that public policy can, and does, conflict with other equally well-founded public policies. When confronted with this conflict, courts are often dismissive or even hostile towards the parties seeking to challenge a testamentary bequest to a charity. I argue that the policy favoring charitable giving has gone too far and has, in some instances, undermined other important public policies. Specifically, courts and legislators have strengthened the charitable bequest policy without giving enough consideration to other, equally important public policies. This problem is not new. History shows that similar policy conflicts have arisen periodically since late antiquity, if not earlier. The parameters of the problem, however, are somewhat new. The governing law, available technologies, and familial relationships have certainly evolved since the time of late antiquity. This article examines how the public policy favoring charitable bequests conflicts with various aspects of the equally important public policies of testamentary freedom and family protection.

Part II considers the competing public policies of testamentary freedom, family protection, and charitable bequests, as well as the existing legal doctrines aimed at furthering these policies. Part III examines the social and legal origins of charitable bequests and the periodic attempts to balance charitable bequests with other important policy considerations. Part IV examines the role of the non-profit sector in America today. Specifically, Part IV considers the size and scope of the nonprofit industry, the legal and economic benefits the nonprofit industry enjoys, and the manner in which nonprofits solicit charitable bequests. Part V illustrates how the current law fails to strike the appropriate balance between the competing policies, as the current law is too favorable to charities and reform is needed. Part VI concludes.

April 18, 2015 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

Article on Taking Turns

Ronen PerryRonen Perry (University of Haifa - Faculty of Law; University of Oxford - Faculty of Law) and Tal Zarsky (University of Haifa - Faculty of Law) recently published an article entitled, Taking Turns, Florida State University Law Review, Forthcoming. Provided below is the abstract from SSRN:

Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession. An allocation method based on alternating enjoyment (or suffering) is commonly known as “rotation,” or more colloquially “taking turns.” Yet despite its manifestation in different legal contexts, and its considerable potential, rotation has been almost neglected by legal theorists. This Article makes the first attempt to delineate and exemplify the proper boundaries of this method’s utilization by and under the law, based on a comprehensive and systematic integration of fairness- and efficiency-oriented concerns. In providing a full-fledged theoretical framework we also aim to alert law and policy makers to the availability of rotation-based solutions to allocative challenges, and to advocate a cautious expansion of their application by and under the law.

April 15, 2015 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 14, 2015

Article on Trust as More Than a Common Law Creature

TrustAngelique Devaux (French Licensed Attorney, LL.M American Law), DeAnna R. Beckner (Indiana University Robert H. McKinney School of Law), and Margaret Ryznar (Indiana University Robert H. McKinney School of Law) recently published an article entitled, The Trust as More Than a Common Law Creature, Ohio Northern University Law Review, Vol. 41, No. 1, pp. 91-119 (2014).  Provided below is the abstract from SSRN:

Until recently, it has been a truism that the trust is a creature of the common law system. A challenge to this truism is currently occurring in Europe in one of the most significant developments in the field of trusts & estates law: the introduction of trust-like devices in civil law countries. Specifically, while France and other civil law countries have traditionally been skeptical about the common law instrument that is the trust, they must now confront the meaning of a trust and how to implement it because of the European Union’s new regulation that calls for the harmonization of laws regarding succession. This article is analyzes the introduction of the trust concept to civil law countries.

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

Monday, April 13, 2015

Testamentary Intent Examined

Mark GloverMark Glover (University of Wyoming College of Law) recently published an article entitled, A Taxonomy of Testamentary Intent, 23 George Mason Law Review (2016), Forthcoming.  Provided below is the abstract from SSRN:

Testamentary intent is consistently heralded as the cornerstone of a will. Moreover, judges and scholars explain that the decedent’s intent should guide probate courts as they supervise the distribution of the decedent’s estate. But despite the importance of testamentary intent within the law of wills, a clear and consistent testamentary intent doctrine has failed to develop. Courts frequently espouse the significance of testamentary intent without explaining what testamentary intent is, and when they do give more detail regarding the meaning of testamentary intent, their explanations are often vague and at times confusing and contradictory. Likewise, legal scholars have done little to untangle the specifics of testamentary intent.

The lack of a clearly defined testamentary intent doctrine has caused both practical misapplication and theoretical misunderstanding of various aspects of the law of wills. The need for a clear understanding of testamentary intent will continue to grow as the law of wills moves away from formalistic approaches to the validation, interpretation, and construction of wills and toward approaches that grant courts greater discretion to decide issues related to the decedent’s intent. Without a firm grasp of testamentary intent, greater judicial discretion could lead to inconsistent and unpredictable outcomes, thereby promoting costly probate litigation.

The goal of this Article is therefore to cultivate a better understanding of testamentary intent. It pursues this goal by developing a taxonomy of testamentary intent that clearly distinguishes the primary issues related to the court’s task of fulfilling the intent of the decedent and that identifies the major rules and doctrines that courts should apply when deciding these issues. With this taxonomy in place, a more consistent testamentary intent doctrine might emerge and a deeper understanding of the role of the decedent’s intent within the law of wills can develop.

April 13, 2015 in Articles, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, April 12, 2015

Article on Federalizing Principles of Donative Intent

Reid Kress WeisbordReid Kress Weisbord (Vice Dean, Professor of Law, and Judge Norma L. Shapiro Scholar, Rutgers School of Law Newark) recently published an article entitled, Federalizing Principles of Donative Intent and Unanticipated Circumstances, 67 Vand. L. Rev. 1931-1944 (2014).  Provided below is a portion of the article’s introduction:

This Symposium identifies several areas of state wealth transfer law that intersect or conflict with federal law. These intersections and conflicts represent a new frontier because, historically, the field of wealth transfer law was governed almost entirely by the states, with little to no interference by the federal system. Because the Supremacy Clause mandates that federal law prevail over conflicting state law, the absence of a comprehensive body of federal wealth transfer law creates a complex and unpredictable vacuum in cases implicating preemption. The contributions of this Symposium, therefore, articulate a compelling need for Congress, federal courts, and federal agencies to establish guiding principles for the development and interpretation of federal wealth transfer rules, which in some settings may benefit from the adoption of state law. These guiding principles are necessary to facilitate a just evaluation of the competing interests at stake, particularly when a federal interest requires that state wealth transfer law be displaced. In adopting such principles, federal law need not always defer to state law, but the long history of the states’ experience in this field may provide valuable information from which the federal system may greatly benefit.

April 12, 2015 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Saturday, April 11, 2015

Article on Succession to Muslim Estates in Singapore

M.B. HookerM.B. Hooker (Centre for Indonesian Law, Islam and Society) recently published an article entitled, Succession to Muslim Estates in Singapore: Sources of Law and Choice of Law, Australian Journal of Asian Law, Vol. 15, No. 2, article 5 (2014).  Provided below is the abstract from SSRN:

Succession to Muslim estates in modern Singapore has developed its own peculiar set of technicalities via the AMLA and precedent. Sources of law and, therefore, choices of law are now the issues. The classical fiqh on its own is no longer sufficient. The process of choosing the appropriate law – the ‘Muslim law’ – is determined by four factors. First, although the AMLA does not pretend to reproduce fiqh, it has incorporated it by reference to ‘Muslim law’ but what this actually means depends on statutory interpretation. The statute and its precedent are now the standard form. Second, the classic Arabic fiqh tests are not now the texts of first recourse at appeal level. Even in the first instance Syariah Courts only the Succession Tables are routinely consulted. Third, new forms of property (Central Provident Funds) and special sorts of title to real property (joint tenancies) bring with them their own rules as to ownership, thus displacing any fiqh. Finally, despite the best efforts of the MUIS Legal Committee, classic fiqh via fatāwā has proved to have little if any practical relevance. Succession to Muslim estates, therefore, is now best described as a ‘common law fiqh’.

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

Friday, April 10, 2015

Article on Agent Acting on Behalf of an ERISA Plan Participant

Gavel 4

Albert Feuer (Law Offices of Albert Feuer) recently published an article entitled, When May an Agent Act on Behalf of an ERISA Plan Participant or Beneficiary?, 41 J. Pension. Plan. & Compliance 1 (Spring 2015).  Provided below is the abstract from SSRN:

This article discusses when a pension or welfare plan governed by the Employee Retirement Income Security Act of 1974, as amended ("ERISA") may, and when it must, comply with directions of an attorney in fact under a state-law power of attorney or court-appointed guardians. ERISA and the regulations thereunder do not explicitly address the appointment of agents with respect to the exercise of any rights on behalf of an individual participant or beneficiary other than the ability of an agent to pursue benefit claims on behalf of the agent’s principal.

This article argues that an ERISA plan must defer to any agent acting on behalf of a participant or beneficiary under a state-law power of attorney or guardianship to the extent the individual is unable to exercise those ERISA benefit rights so that the individual is not deprived of those rights. This is the case whether the disability is a result of the individual being a minor, being an illiterate, being physically disabled, or lacking mental capacity. Moreover, the applicable state relief laws to encourage the acceptance of such powers would also probably be applicable to ERISA plans because such provisions are needed for the effective administration of power of attorney state laws for a disabled participant that ERISA does not otherwise preempt. 

State law may authorize an individual to be the agent of an ERISA plan participant or beneficiary. This article discusses when ERISA permits such an individual, on behalf of the agent's principal, to: (1) pursue a benefit claim; (2) obtain plan or benefit information; (3) determine the time and form of benefit payment; (4) determine to whom the plan makes a benefit payment; (5) make beneficiary designations; (6) consent to the waiver of the principal’s right to a spousal survivor benefit; (7) assign benefit rights and thereby create a beneficiary; (8) determine the amount, if any, of the principal’s employee contributions to the plan; (9) obtain information about the principal’s investment options; or (10) determine how to invest the principal’s plan assets. The article also discusses when ERISA and the Health Insurance Portability and Accountability Act ("HIPAA") permit a state-law agent to (1) make healthcare decisions for the agent’s principal in ERISA healthcare plans, or (2) obtain information from a healthcare plan, or a healthcare reimbursement plan.

April 10, 2015 in Articles, Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)