Tuesday, May 24, 2016
Goldburn P. Maynard Jr. recently published an article entitled, Perpetuating Inequality by Taxing Wealth, 84 Fordham L. Rev. 2429 (2016). Provided below is an abstract of the Article:
Daniel Monk recently published an article entitled, 'Inheritance Families of Choice'? Lawyers' Reflection on Gay and Lesbian Wills, Journal of Law & Society, Vol. 43, Issue 2, pp. 167–94 (2016). Provided below is an abstract of the Article:
This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.
Monday, May 23, 2016
Bridget J. Crawford recently published an article entitled, Valuation, Values, Norms: Proposals for Estate and Gift Tax Reform, Boston College Law Review, Vol. 57 (Forthcoming). Provided below is an abstract of the Article:
In their contributions to the Symposium on The Centennial of the Estate and Gift Tax, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system. Professor Dodge and Professor Gerzog are especially interested in accuracy in valuation, and advance specific proposals with respect to split-interest transfers and family limited partnerships. Professor Dodge makes an additional proposal to improve the generation-skipping transfer tax system, an understudied area of the law. Professor Gerzog’s Symposium contribution draws particular attention to the legal fiction on which the estate and gift tax marital deductions rely. She would restrict the availability of the deduction to only meaningful economic transfers to a spouse, consistent with a desire that tax results reflect the underlying substantive results. Professor Ryan also focuses on the estate and gift tax marital deduction, along with other wealth transfer tax benefits available to spouses. She imagines an expansion of those rules, showing how easily the law can be separated from economic substance. These authors' proposals are technically expert, relevant to the legislative and regulatory regime that taxpayers face daily, focused on solutions, and deeply engaged in understanding how well the law meets its goals.
Michael J. Graetz recently published an article entitled, 'Death Tax' Politics, Boston College Law Review, Vol. 57 (Nov. 2016). Provided below is an abstract of the Article:
In his Keynote Address “Death Tax” Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation’s progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.
G. V. Mahesh Nath recently published an article entitled, Survivorship and Intestate Succession — Understanding the Difference Between Section 6 and 8 of Hindu Succession Act, 1956, available on SSRN. Provided below is an abstract of the Article:
The Hon'ble Supreme Court in decision between Uttam v. Saubhag Singh and other has summarized the law, insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005. This article analysis the case of Uttam with regard to succession by survivorship and intestate under the Hindu Succession Act, 1956.
Sunday, May 22, 2016
Paige K. Ben-Yaacov recently published an article entitled, Explaining Estate Funding with Hands-On Examples, Probate & Property, May/June (2016). Provided below is a summary of the Article:
This Article discusses certain estate funding calculations, timing issues relating to estate funding, and various provisions that executors and beneficiaries of estates may wish to include in funding agreements.
The Article will focus on issues that arise when funding GST trusts—the rationale behind the funding requirements and the means of satisfying them. The timing section of the Article addresses why the representative of the estate may wish to wait until IRS matters have been solved before distributing assets to the beneficiaries. Finally, the Article will discuss the issues that must be dealt with in a funding agreement.
Saturday, May 21, 2016
Steven A. Brand, David G. Freitag, Ron R. Robinson, & Bruce A. Tannahill recently published an article entitled, Bipartisan Budget Act Significantly Changes Social Security Retirement Benefit Options, Probate & Property, May/June (2016). Provided below is a summary of the Article:
The Bipartisan Budget Act of 2015 (BBA), signed by President Obama on November 2, 2015, created a sea change in Social Security analysis and planning. The authors’ Article, Social Security Retirement Benefit Options, in the November/December 2015 issue of Probate & Property, described pre-BBA Social Security claiming options. Except for limited grandfathering, most options are no longer available. This Article summarizes the changes, who can still benefit from the strategies described in our previous article, and why Social Security planning is still an important part of retirement and estate planning for all clients.
Martin M. Shenkman recently published an article entitled, Estate Planning for the Chronically Ill, Aging, and Otherwise Vulnerable or Isolated Client, ABA Probate & Property, May/June (2016). Provided below is a summary of the Article:
Attorneys routinely build flexibility into their documents to address the uncertainty of future tax laws. This same care can be applied to helping clients deal with the uncertainties aging and chronic disease may bring. Certain clients are more vulnerable to financial abuse and other gaps in their estate planning safety nets. This heightened risk may be because of the challenges of aging, chronic illness, and other similar circumstances. Those clients who require extra precautions in the planning process will be referred to as “vulnerable clients.” This article will explore four key points of planning for vulnerable clients: different approaches for planning, planning for those with chronic illness, enhancing traditional estate planning for vulnerable clients, and planning for isolated vulnerable clients.
Friday, May 20, 2016
Jane B. Baron recently published an article entitled, Irresolute Testators, Clear and Convincing Wills Law, Washington & Lee Law Review, Winter (2016). Provided below is an abstract of the Article:
Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called harmless errors in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence.
This Article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom.
Danica J. Brustkern recently published an article entitled, With Great Power Comes Great Culpability: Addressing Agency Costs in Durable Powers of Attorney, Real Property, Trust and Estate Law Journal, Winter (2016). Provided below is her synopsis of the article:
This Article discusses alternative methods for monitoring those who become agents under durable powers of attorney. A durable power of attorney presents an easily abused principal/agent relationship because the principal is unable to monitor the agent once the principal has lost capacity. Because durable powers of attorney involve agency costs that are similar to those seen in the context of trusts and guardianships, this Article looks to the methods of monitoring the “agents” in each of those relationships and discusses whether these methods could—or should—be adopted for use in the context of durable powers of attorney. Ultimately, this Article finds that adapting the concept of a “trust protector” to durable powers of attorney could address the agency costs in these relationships with minimal sacrifice of the aspects of durable powers that made them so popular and useful to begin with.