Wills, Trusts & Estates Prof Blog

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

Thursday, June 30, 2016

Article on New Zealand Trust Taxation

Trust taxationMark Brabazon recently published an Article entitled, Trust Residence, Grantor Taxation and the Settlor Regime in New Zealand, New Zealand J. Taxation L. & Policy (Forthcoming 2016). Provided below is an abstract of the Article:

International trust taxation in New Zealand is dominated by the settlor regime under which the claim to tax accumulated trust income on a worldwide basis depends on the fiscal residence of the settlor. A trust entity is constituted by the trustees collectively, together with their right of access to trust assets, augmented by the agency obligations of a resident settlor. Although the statute avoids mention of trust residence, a trust is resident from an international and comparative viewpoint if the settlor nexus for worldwide taxation is satisfied. Analysis of historical material and the fiscal role of the settlor reveals a degree of tension between recognising the trust as economic agent for the settlor and statutory treatment of the settlor as agent for the trust. Comment is also made on the use of New Zealand as a tax haven.

June 30, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on Exceptions to Traditional Texas Partnership Interests

Partnership interestNikki L. Laing recently published an Article entitled, Planner Beware: A Peculiar Exception to Traditional Texas Community Property Rules, 8 Est. Plan. & Community Prop. L.J. (Book 2) 423 (Forthcoming 2016). Provided below is an abstract of the Article:

A number of puzzling inconsistencies exist in the application of traditional Texas community rules to partnership interests. Estate, business, and asset protection planners alike should be aware of the exceptions that exist in the treatment of partnership interests. Whether a client is considering investing separate property in a partnership, making a distribution from a partnership, or giving a partnership interest to a child with the expectation that it will remain the child’s separate property, advisors should warn the client of the risks involved.

June 30, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, June 29, 2016

Article on Caring for the Future of Disabled Adult Children

Disabled adult children Jennifer M. Kirby-McLemore recently published an Article entitled, What Are Aging Parents Caring for Adult Children with Disabilities To Do?: A Comprehensive Framework for a Healthy, Stable, Financially Sound Future, 21 Roger Williams U. L. Rev. 45 (2016). Provided below is an introduction of the Article:

Part I of this Article provides the social and cultural backdrop that created the need for parental guidance concerning the care of adult children with disabilities. Part II introduces the importance of proper planning for adult children with disabilities as well as the key elements for every future care plan. The bulk of this Article is divided into hypothetical situations that would require parents to develop a comprehensive future care plan for their child. These hypotheticals will discuss the various elements included in those plans. Depending on the particular situation, these elements will include: ensuring eligibility for government benefits; establishing an adequate estate plan that contemplates asset distribution and guardianship appointment; and considering alternative options such as purchasing life insurance or gifting the adult child's inheritance to a future caretaker.

The hypothetical in Part III will center on those parents who are financially limited, and caring for a dependent adult child with a disability. Part IV will provide a plan for similarly situated middle class parents, while Part V will detail a plan for a well-to-do family with a partially self-sufficient adult child with a disability. Parents should note that these hypotheticals are meant to be illustrative and therefore do not exhaust all of the possible situations in which they may find themselves. Part VI augments the hypotheticals with a description of additional options that families with moderate to significant resources can use to substitute or supplement some elements of a Future Care Plan.

June 29, 2016 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, June 28, 2016

Article on Louisiana Succession Law

Dorothy jacksonDorothy F. Jackson recently published an Article entitled, Contemporary Issues on Louisiana Law: Successions—To Be Shared Equally or to Share and Share Alike?, S.U. L. Rev. (forthcoming Spring 2016). Provided below is an introduction to the Article:

For many years, lawyers have sought to draft last wills and testaments in an effort to comport with their clients’ wishes and to appeal to their clients’ intellectual sensibilities. Sometimes lawyers are tempted to use flowery words or phrases to impress the prospective testator, who is a lay person. A thorough reading of the Louisiana Civil Code’s provisions on legacies, joint or otherwise, should be carefully studied and understood by the attorney or notary before preparing or drafting a last will and testament. This article suggests that based upon the ambiguities that can result from the inarticulate drafting of wills, it may be necessary to amend or revise (once again) Louisiana Civil Code article 1588, which governs legacies made to more than one individual. Failure to use words that are clear and unambiguous, based upon the ordinary meaning of words, has resulted in some of the simplest drafted wills failing to comport with the client’s express intent.

Part I of this article will analyze the Lambert decision and discuss how various Louisiana courts have interpreted Lambert. Part II will discuss the Succession of Lain decision and the confusion surrounding it, its likely impact on the issue and the opportunity for future rulings (i.e. the new appeal). Finally, Part III will provide suggestions for a final resolution to the problem, one of which is to revise or amend Louisiana Civil Code article 1588 in order to avoid the confusion set forth in the Succession of Lain.

June 28, 2016 in Articles, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Article on the Girard Will & Two Major Supreme Court Decisions

Girard collegeSteven P. Brown recently published an Article entitled, The Girard Will and Twin Landmarks of Supreme Court History, 41 J. Sup. Ct. Hist. 7–20 (2016). Provided below is an introduction to the Article:

In June 2013, the trustees of Girard College announced drastic changes in the operations of the boarding school that had served the poor children of Philadelphia since 1848. Looming financial concerns, they said, necessitated the elimination of the school's secondary education and boarding programs. While distressing to students and their families as well as to Girard's staff, the announcement received relatively little notice outside of Pennsylvania. The school's difficulties were simply not that unique given the nationwide economic struggles wrought by the recession of 2008, and there was little else about Girard to commend itself to the national media. That, however, was not always the case.

From its controversial founding as part of a bequest from one of the richest men ever to live in America, to its mission to care for the “poor, white, male” children of Philadelphia, Girard College has been the focal point of national attention before. Much of that interest derived from state and federal litigation involving the school, including two major Supreme Court decisions dealing with questions of religion and race. Arising out of the same bequest, but separated by more than a century, these rulings link the Taney and Warren Courts as well as the antebellum and civil rights eras. They also garnered for Girard College the distinction, as the New York Times put it (and with reference to the school's Greek Revival design), as “a landmark of judicial as well as architectural history.”

June 28, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, June 27, 2016

Article on the Interface Between Marijuana and Estate Planning

Puff the magic dragonGerry W. Beyer & Brooke Dacus recently published an Article entitled, Puff, the Magic Dragon, and the Estate Planner, 3 Tex. A&M U.J. Prop. L. 1 (2016). Provided below is an abstract of the Article:

With the legalization of medical and recreational marijuana in almost half of the states, practitioners need to be aware of interface between marijuana and estate planning. This article provides a discussion of the major issues that arise. After bringing readers up-to-date with the history of legalized marijuana, the article focuses on how marijuana use may impact a user’s capacity to execute a will and other estate planning documents. The article then examines other estate planning concerns such as will and trust provisions conditioning benefits on the non-use of “illegal drugs” and the impact of marijuana use on life insurance policies. The article wraps up with a discussion of how an estate planner may deal with marijuana-based assets when planning an estate and how to value those assets after the owner has died.

June 27, 2016 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Article on "Remedial" Constructive Trusts

Remedial constructive trustYing Khai Liew recently published an Article entitled, Reanalysing Institutional and Remedial Constructive Trusts, Cambridge L.J. (Forthcoming 2016). Provided below is an abstract of the Article:

It is often said that English law does not impose “remedial” constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencies in this understanding, and reanalyses constructive trusts in terms of the rights which they give effect to. This understanding reveals that English law sets its face against the exercise of discretion in relation only to some “remedial” constructive trusts and not others, and that the perceived difficulties with remedial constructive trusts are often exaggerated. It ends by noting some crucial implications of the reanalysis for the future development of the law.

June 27, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, June 26, 2016

Article on Ilott v. Mitson & the Inheritance Act of 1975

Inheritance actBrian Sloan recently published an Article entitled, The ‘Disinherited’ Daughter and the Disapproving Mother, U. Cambridge Faculty of Law Research Paper No. 24/2016 (2016). Provided below is an abstract of the Article:

This paper is a case note on Ilott v Mitson [2015] EWCA Civ 797. The judgment concerns the appropriate remedy following a successful claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975. The charities who were named in the mother’s will have been granted permission to appeal to the Supreme Court.

June 26, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, June 25, 2016

Common Will-Substitutes Used in England and Wales

English willsAlexandra Braun recently published an Article entitled, Will-Substitutes in England and Wales, Oxford Legal Studies Research Paper No. 39/2016 (2016). Provided below is an abstract of the Article:

Will-substitutes, that is to say mechanisms that are functionally equivalent to wills, are very common in the US, where much of the wealth is transferred on death by means other than wills, and thus outside traditional probate procedures. The purpose of this chapter is to investigate whether this is the case also in England and Wales.

This chapter explores some of the most common mechanisms used, the rationale behind their use, as well as the consequences that arise from their proliferation. In doing so, it considers will-substitutes from different perspectives, including those of creditors and family members and dependants. It argues that the current state of the law in England and Wales is unsatisfactory and that it is time for a debate involving non-probate transfers and their relationship with current succession laws.

June 25, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, June 24, 2016

Will-Substitutes for Your Estate Plan

Life-Insurance trustAlexandra Braun & Anne Roethel recently published an Article entitled, Passing Wealth on Death. Will-Substitutes in Comparative Perspective, Oxford Legal Studies Research Paper No. 38/2016 (2016). Provided below is an abstract of the Article:

Wealth can be transferred on death in a number of different ways, most commonly by will. Yet a person can also use a variety of other means to benefit someone on death. Examples include donationes mortis causa, joint tenancies, trusts, life-insurance contracts and nominations in pension and retirement plans. In the US, these modes of transfer are grouped under the category of 'will-substitutes' and are generally treated as testamentary dispositions.

Much has been written about the effect of the use of will-substitutes in the US, but little is generally known about developments in other jurisdictions. For the first time, this collection of contributions looks at will-substitutes in a comparative perspective. It examines mechanisms that pass wealth on death across a number of common law, civil law and mixed legal jurisdictions, and explores the rationale behind their use. It analyses them from different viewpoints, including those of owners of businesses, investors, as well as creditors, family members and dependants. The aims of the volume are to show the complexity and dynamics of wealth transfers on death across jurisdictions, to identify patterns between them, and to report the attitudes towards the different modes of transfer in light of their utility and potential frictions they give rise to with policies and principle underpinning current laws.

June 24, 2016 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)