Monday, September 29, 2014
Martin D. Begleiter (Drake University School of Law) recently published an article entitled, Grim Fairy Tales: Studies of Wicked Stepmothers, Poisoned Apples and the Elective Share (July 15, 2014), Albany Law Review, Forthcoming. Provided below is the abstract from SSRN:
Ever since the statutory elective share replaced dower and curtesy, courts have been trying to expand the property subject to the spouse’s elective share. The courts have used a number of justifications for their attempts to accomplish this. In a previous article, the author offered an interpretation of the proper use of public policy by courts when a statute on the subject has been enacted by the Legislature. This article applies that test to attempts by courts to expand the elective share to will substitutes, and finds such attempts to be an impermissible use of public policy by courts.
Saturday, September 27, 2014
Timothy J. Farmer (University of Iowa College of Law) recently published an article entitled, Don’t Die in Iowa: Restoring Iowans’ Right to Direct Final Disposition of their Bodily Remains (Sept. 2, 2014), Iowa Law Review, Forthcoming. Provided below is the abstract from SSRN:
Iowa has long been a bastion of support for a decedent’s right to control disposition of her remains. In early 2013, the Iowa Supreme Court made an unprecedented move when it interpreted Iowa’s Final Disposition Act as entirely eliminating that right — even when a decedent repeatedly and incontrovertibly expresses her wishes. This Note argues that the Iowa Legislature did not intend this result, and proposes two modifications to the Act that can both facilitate the Act’s purpose and restore the decedent’s right to direct disposition of her remains. First, this Note proposes that the Iowa Legislature modify the Act to require funeral directors to provide their clients with resources that will help them ensure that survivors honor the client’s wishes regarding final disposition. Second, this Note proposes that the Iowa Legislature modify the Act to include a presumption, rebuttable by clear and convincing evidence, that the person entitled to control disposition of a decedent’s remains acts in accordance with the decedent’s wishes.
Friday, September 26, 2014
Andrew S. Gold (DePaul University College of Law) and Paul B. Miller (McGill University Faculty of Law) recently published an article entitled, Introduction to Philosophical Foundations of Fiduciary Law (Aug. 28, 2014). In: Andrew S. Gold & Paul B. Miller, eds., Philosophical Foundations of Fiduciary Law (Oxford: Oxford University Press, 2014). Provided below is the abstract from SSRN:
This Introduction to Philosophical Foundations of Fiduciary Law (Andrew S. Gold & Paul B. Miller eds., Oxford: Oxford University Press, 2014) outlines core questions of fiduciary law theory and provides thematic discussion of the contributions to the volume. The volume includes chapters by Richard Brooks, Hanoch Dagan, Evan Criddle, Deborah DeMott, Avihay Dorfman, Justice James Edelman, Evan Fox-Decent, Tamar Frankel, Joshua Getzler, Andrew Gold, Michele Graziadei, Sharon Hannes, Genevieve Helleringer, Ethan Leib, Daniel Markovits, Paul Miller, Irit Samet, Robert Sitkoff, Henry Smith, and Lionel Smith.
Bradley E.S. Fogel (Professor of Law, St. Louis University School of Law), recently published an article entitled, Trust Me? Estate Planning With Revocable Trusts, 58 St. Louis U. L. J. 805 (2014). Provided below is the abstract of the article:
Revocable trusts are one of the most common estate planning techniques. Unfortunately, many advisors use them without considering the merits for the particular client. Like any other estate planning technique, they are appropriate only for some clients.
Typically, a settlor creates and funds a revocable trust during his or her lifetime. The settlor then uses trust funds to pay living expenses. Upon the settlor’s death, the successor trustee administers the trust, collects the settlor’s assets, pays creditors, and distributes th e assets to the named beneficiaries. In the optimum case, this is done without any court involvement.
Due to the lack of court involvement, it is possible to use a revocable trust to avoid probate and reduce the associated expenses and delays. However, this goal is achieved only if settlor transfers all of his or her property to the trust during his or her lifetime. As a practical matter, this almost never happens.
Revocable trusts also provide advantages in terms of privacy (after the settlor’s death) and planning for the settlor’s incapacity. However, these advantages, like probate avoidance, are obtained only if the trust is funded during the settlor’s lifetime.
Revocable trusts also have disadvantages; most notably, increased complexity during the settlor’s lifetime and higher estate planning costs. The essence of the trade off is that the settlor suffers the disadvantages during his or her lifetime. The advantages are mostly savings and efficiencies that obtain only after the settlor’s death.
Whether this trade off is acceptable is up to the attorney and client to decide based on the situation of the specific client. Such a subjective balancing is not easy. However, the client is not well served by an estate planner that eschews careful analysis in favor of using revocable trusts for all (or no) clients.
Thursday, September 25, 2014
Mariusz Zalucki (Andrzej Frycz Modrzewski Krakow University College) recently published an article entitled, Testamentary Succession, New Technologies and Recodification: On the Research that Needs to Be Conducted, Societas Et Iurisprudentia 2014, Vol. II No. 2. Provided below is the abstract from SSRN:
In view of the fact that one of the main tasks of modern inheritance law is to connect the available legal structures with the shape of property relations existing in the society and to favour solutions which enable to make the most of the testator’s estate after his or her death, the author concludes that a research needs to be conducted to examine what consequences in this field of law follow, inter alia, from the wide availability of audio and video digital recorders, and what are legal consequences of registering the last will of the testator using such equipment, e.g. if in such context, can we call a videotestament a newly developing form of estate disposition. In this scope projects should search for connections between the above-indicated technical equipment and the possibilities of fulfilling the last will of the testator, to analyze if they may be useful for applying the principle of testamentary freedom present in inheritance law and to explain if the application of such equipment by the testator will facilitate or hinder the execution of testator’s will mortis causa.
In 2008, the National Conference of Commissioners on Uniform State Laws implemented amendments to the Model Uniform Principal and Income Act (UPAIA). Of the amendments to the UPAIA was Section 505, entitled “Income Taxes.” This amendment addresses income tax issues that are prompted by a trust that has interests in a pass-through entity, such as a Limited Liability Company (LLC) or partnership. The 2008 amendments provide a formula to compute how much the trust needs to distribute to the mandatory income beneficiary and how much it needs to retain in order to pay its fiduciary income tax liability tax obligations. Thus, the trust preserves the essential funds to pay its fiduciary income tax obligations with the balance of the cash distribution paid to the mandatory income beneficiary.
Seymour Goldberg presents a problem on the interaction between the UPAIA and Income Act and the ownership of pass-through entities that are bequeathed to trusts for the benefit of a surviving spouse that could consequently jeopardize qualified terminable interest property (QTIP) treatment. Outlining the problem through detailed examples and comprehensive explanations, Mr. Goldberg notes that the IRS has yet to come up with an easy fix for this issue. “Over 30 states have adopted the revised version of the UPAIA. It would be a disaster if the state trust law drafted in good faith to protect the trustee from a fiduciary income tax liability funding issue in essence destroyed the QTIP marital deduction with respect to a significant asset held by the estate.”
To advance this effort, Mr. Goldberg has sent a letter to the Treasury Department requesting that it address these issues by providing some form of guidance that would protect existing estate plans from potentially adverse penalties.
See Seymour Goldberg, QTIP Conundrum, CCH Estate Planning Review, Sept. 18, 2014.
Special thanks to Seymour Goldberg (Goldberg & Goldberg, P.C.) for bringing this article to my attention.
Wayne M. Gazur (Colorado), recently published an article entitled, The White Whale: Bringing Emotion and Relevance to the Contemporary Trusts and Estates Course, 58 St. Louis U. L.J. 785 (2014). Provided below is the introduction of the article:
The title of this Essay is intended to evoke two conflicting interpretations at the outset. According to one plausible perspective, the contemporary Trusts and Estates course remains a highly doctrinal property course, largely devoid of emotional appeal for most students. Further, as discussed below, it is also increasingly less relevant to the planning needs of most potential clients. Consequently, a teacher’s efforts to bring emotion and relevance to the course might seem to be an unsuccessful, frustrating quest much like Ahab’s search for the elusive white whale, Moby Dick.1
I try to develop a different perspective in my teaching of the course, and I establish that tone on the first day of class with Ishmael’s moving account of his will execution ceremony.2 This human, client-centered view of trusts and estates is increasingly a part of my course, enriching the doctrinal material. In terms of relevance, I believe that the Trusts and Estates course can still remain so, even amidst the profound changes to the manner in which many Americans transfer their wealth up on death and the increasing irrelevance of federal wealth transfer taxation.
Wednesday, September 24, 2014
Robert L. Moshman, Esq. recently published an article entitled, The Art and Science of Disinheriting Heirs —Part I: Practical Mechanics of Disinheritance, The Estate Analyst, September 2014—Part I. Provided below is the introduction to the article:
It has become a common refrain of late for wealthy people, such as Bill Gates or Gloria Vanderbilt, to announce that they are not leaving the bulk of their wealth to their children but instead are taking a “giving pledge.” Some celebrities, such as the late Philip Seymour Hoffman, have gone further by disparaging the corrosive influence of wealth and then “throwing shade” on trusts because they create spoiled “trust fund kids.” A significant number of ordinary estates have reasons for excluding or limiting particular heirs. Others can end up being disinherited by accident. How should disinheritance be implemented? What legal remedies are available for disinherited heirs? What alternatives should grantors consider? Here, in Part I of this article, we examine the practical considerations in drafting disinheritance clauses.
Tuesday, September 23, 2014
Alyssa A. DiRusso (Cumberland), recently published an article entitled, Microlawyering and Simulations in Trusts and Estates Courses, 58 St. Louis U. L.J. 739 (2014). Provided below is the introduction of the article:
If practice makes perfect, law school is not yet a perfect experience for budding trusts and estates lawyers. The legal curriculum needs to include significant opportunities for students to learn through doing. When legal instruction is limited to purely academic study, students are deprived of important professional training.1 As recognized in many other professional schools, practice presents an invaluable opportunity for learning the reasoning necessary to be competent in the field.2 The benefits of integrating practice into legal education have been documented through psychological study. Through these studies, it was recognized that when comparing novice and experts, experts had developed “well-rehearsed procedures, or ‘schemas,’ for thinking and acting,” which allow experts to quickly apply this knowledge to current situations in a manner not developed in novice.3 The studies also revealed that the knowledge of experts is “conditioned, or related to contexts.”4 This evidence supports the proposition that purely academic legal education is merely a foundation for expertise, which can be developed only through the actual practice.5 An ideal exposure to trusts and estates practice is gained through microlawyering—a term I use to mean small-scale, real legal experiences. The term borrows from the concept of microlending. In microlending, budding entrepreneurs who need small amounts of capital to launch new enterprises receive modest loans from microfinancing institutions, empowering business owners to take action when traditional lending structures would not offer the opportunity to proceed.6 Although the investment is small,7 the impact can be substantial.8 So too in the classroom can enabling small-scale experience yield large-scale results.
Although clinics and externships can provide microlawyering opportunities, not all law schools have the resources to offer experiences in trusts and estates to significant numbers of students. Fortunately, it is also possible to provide microlawyering experiences to law students in traditional doctrinal courses as well as smaller skills classes. In this Article, I will describe two such activities and reflect upon the challenges microlawyering presents in these contexts.
In addition to microlawyering, simulations offer students the opportunity to develop skills in a practice-like context. Unbound by the restrictions of real legal practice, simulations are remarkably flexible and well-suited to a variety of classes. Like microlawyering, simulations illustrate the importance of learning to do and not just to think. They can be critical in not only providing experience and feedback in a safe setting, but in developing confidence in nascent lawyers. Later in this Article, I will explain many of the simulations I use in my three Trusts and Estates courses. To begin, I will describe the microlawyering projects.
Monday, September 22, 2014
Although many children have no expectation of receiving an inheritance, the vast majority of retirees cling to the intention that they must leave something behind. While these parents may seem loving and devoted, it is also somewhat foolish. After years of spending hundreds of thousands of dollars to rear and educate each child, parents ought to cease feeling a sense of obligation. It is much better to spend their retirement money in the present on making meaningful memories with family members or on healthcare that can help make aging more comfortable.
In a study at the University of Texas, 86.2 percent of parents ages 59 to 96 expected to leave a bequest. However, just 44.6 percent of the children, ages 40 to 60 thought they would receive one. Where parents had no intention of leaving money behind but their children were expecting some, there was only 2.4 percent disconnect.
The motivation behind inheritance stems from two general areas according to economists. The first area is the moral obligation that parents feel toward their offspring. The second is the assumption that parents wish to reward children who help them while they are still alive.
It might be that aging parents are generous to a fault, if a bit manipulative. However, adult children assume their obligations to care for their parents with little expectation of receiving anything in return.
See Ron Lieber, Parents, the Children Will Be Fine. Spend Their Inheritance Now., The New York Times, Sept. 19, 2014.
Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.