Wills, Trusts & Estates Prof Blog

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

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Thursday, October 23, 2014

Article on Waivers of Limitation Periods in the Income Tax Act

Income TaxSas Ansari (York University - Osgoode Hall Law School) recently published an article entitled, Waivers of Limitation Periods in the Income Tax Act – Judicial Interpretations and Approaches, Osgoode Legal Studies Research Paper No. 50/ 2014. Provided below is the abstract from SSRN:

The Income Tax Act sets various time limited on actions by the Minister and the Taxpayer. These time limits are there to promote a balance between the need for proper administration of the Act in relation to each taxpayer’s affairs and certainty/finality for both the taxpayer and the Minister. One of such time period is the “normal reassessment period” found in section 152. The Act allows for a taxpayer to waive the normal reassessment period, thereby allowing the Minister to reassess the taxpayer beyond this time period.

This paper examines waivers of the normal reassessment period in the context of the Income Tax Act, examines the judicial interpretation and application of such waivers, and provides guidance for judges faced with waiver issues.

October 23, 2014 in Articles, Income Tax | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Article on Tax Equality in a Post-Windsor World

Anthony Infanti

Anthony C. Infanti (University of Pittsburgh School of Law, Associate Dean and Professor of Law) recently published an article entitled, The Moonscape of Tax Equality: Windsor and Beyond, 108 Nw. L. Rev. 3, 1115-1135 (2014).  Provided below is the article’s abstract:

This Essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared Section 3 of the federal Defense of Marriage Act (DOMA) unconstitutional.  The Essay first describes the path that led to the decision in Windsor.  Then, it turns to describing the ways in which the post-Windsor tax terrain may actually be worse for same-sex couples than the bleak tax landscape that they faced before that decision.  Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the federal tax laws applied to their relationships.  Post-Windsor, same-sex couples will see this uncertainty multiply—even after receiving guidance from the IRS on the implementation of the Windsor decision in the federal tax context.  They will have to grapple not only with lingering questions surrounding the federal tax treatment of relationships that are not recognized, but also with new questions regarding whether and how their relationships will be recognized for federal tax purposes.  Moreover, it seems that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our federal tax laws rather than foster the recognition of a broader array of human relationships. 

October 22, 2014 in Articles, Current Affairs, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Article on Probate

Horton-davidDavid Horton (University of California, Davis - School of Law) recently published an article entitled, In Partial Defense of Probate: Evidence from Alameda County, California, Georgetown Law Journal, February 2015, Forthcoming. Provided below is the abstract from SSRN:

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.

October 22, 2014 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2014

Article on the Gift Tax

Wendy Gerzog

Wendy C. Gerzog (University of Baltimore School of Law) recently published an article entitled, A Simplified Verifiable Gift Tax (October 20, 2014).  Provided below is the abstract from SSRN:

The purpose of this article is to create a simpler and more accountable federal gift tax. The proposed tax would simplify gift completion rules, adopt a hard-to-complete rule of transfer taxation, reduce the annual exclusion while expanding the consumption exclusion, and, by replicating the portability reporting rules, employ gift tax preference inducements to increase gift tax compliance. The proposed gift tax reaffirms basic principles of transfer taxes, encourages simple, outright gifts, and eliminates some of the major valuation abuses in the current gift tax regime.

October 21, 2014 in Articles, Estate Planning - Generally, Gift Tax | Permalink | Comments (0) | TrackBack (0)

Sunday, October 19, 2014

Article on Benefits to After-Born Children

Mark Strasser

Mark Strasser (Capital University Law School) recently published an article entitled, Capato, Art, and the Provision of Benefits to After-Born Children, Michigan State Law Review 985-1001 (2013). Provided below is the abstract from SSRN:

In Astrue v. Capato ex rel B.N.C., the United State Supreme Court held that the twins conceived and born after their father’s death in that case were not entitled to Social Security benefits. While the decision might simply be thought to involve deference to an agency’s interpretation of a statute, the decision is nonetheless regrettable because the Court failed to take advantage of an opportunity to provide needed guidance on whether, why, or how Social Security benefits should be based on state intestacy laws in cases involving after-born, ART children. Such guidance would have been especially welcome considering that Congress when passing the Social Security Act did not have ART children in mind, and providing benefits to such children would have been in accord with some of the purposes behind the Act’s passage.

October 19, 2014 in Articles, Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Thursday, October 16, 2014

Article on Income Tax and Property Interests

Stephanie McMahon

Stephanie Hunter McMahon (Professor, University of Cincinnati College of Law) recently published an article entitled, A Bundle of Confusion for the Income Tax: What It Means to Own Something, 108 Nw. U. L. Rev. 3, 959-988.  Provided below is the article’s abstract:

Conceptions of property exist on a spectrum between the Blackstonian absolute dominion over an object to a bundle of rights and obligations that recognizes, if not encourages, the splitting of property interests among different people.  The development of the bundle of rights conception of property occurred roughly the same era as the enactment of the modern federal income tax.  Nevertheless, when Congress enacted the tax in 1913, it did not consider how the nuances of property, and the possible splitting of property interests in an income-producing item, might affect application of the tax.  Soon after the tax’s enactment, the Treasury Department and the courts were confronted with questions of who owned, and could be taxed on, what income.  As shown by an examination of family partnerships and synthetic leases, the government continues to struggle with determining who owns a sufficient property interest to be taxed because Congress has yet to define ownership for tax purposes. 

October 16, 2014 in Articles, Estate Planning - Generally, Income Tax | Permalink | Comments (0) | TrackBack (0)

Article on Death and Taxes

Willliam-neilsonWilliam A. Neilson (Loyola University New Orleans College of Law) recently published an article entitled, Uncertainty in Death and Taxes - The Need to Reform Louisiana's Limited Liability Company Laws, 60 Loy. L. Rev. 33 (2014). Provided below is the abstract from SSRN:

Despite our founding father Benjamin Franklin’s observation about the certainty of death and taxes in this world, the Louisiana statutory scheme governing the limited liability company (LLC) has rendered death and taxes entirely uncertain. This uncertainty can paralyze business, stall successions, and negatively impact tax consequences. The cause of this uncertainty is specific state statutory provisions in Title 12, Chapter 22, Part IV of the Louisiana Revised Statutes, which are rooted in now-stale federal law and are due for reform by the Louisiana legislature.

This Article explains the rights of heirs as assignees upon the death of a member of a Louisiana LLC and presents examples of inequities that can occur as a result of the current statutory framework. It then traces the origins of treating heirs of an LLC member as assignees and explains how the original reasoning was based on prior, subsequently overruled, federal tax law and proposes legislative changes to address the LLC in the modern era.

October 16, 2014 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Article on the Uniform Power of Attorney

Angela Vallario

Angela M. Vallario (University of Baltimore School of Law) recently published an article entitled, The Uniform Power of Attorney Act: Not A One-Size-Fits-All Solution, 43 U. Balt. L. Rev. 1, 85-118 (2014).  Provided below is the abstract from SSRN:

A power of attorney is a staple of the modem estate plan, providing a simple way to avoid a guardianship and allowing an agent to manage a principal's assets when necessity or incapacity requires it. The nature of the power of attorney is to give an agent legal authority to act on the principal's behalf for financial matters. However, abuse by agents has caused reluctance among third parties to accept power of attorney documents, and this, in tum, has caused uproar for estate planners and their clients.

This article will examine the UPOA Act and the legislation from the adopting jurisdictions. The Commission identified six specific matters to be addressed by the UPOA Act. In Part II of this Article, those specific matters are identified in the provisions of the UPOA Act and compared to the legislation from the adopting jurisdictions. In analyzing the adopting jurisdictions, the legislative trends and differences amongst the adopting jurisdictions will be identified. Part III of the Article addresses and compares other topics in the UPOA Act and makes additional comparisons and distinctions to the adopting jurisdictions. Part IV identifies further modifications to the UPOA Act by the adopting jurisdictions. The Article also acknowledges the area of complete uniformity between the UPOA Act and the adopting jurisdictions in Part V. Throughout the discussion of the various aspects of the UPOA Act, suggestions and recommendations are made to the Commission in an effort to achieve its stated goal.

October 15, 2014 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Article on French and U.S. Inheritance Law

Ray MadoffRay D. Madoff (Boston College Law School) recently published an article entitled, A Tale of Two Countries: Comparing the Law of Inheritance in Two Seemingly Opposite Systems, 15 Minn. J. L. Sci. & Tech. 897-947 (2014). Provided below is the abstract of the article:

Although at first glance French and U.S. inheritance laws appear to be diametrically opposed, this paper provides a deeper analysis. In doing so, it explains that nuances within both systems have made the laws more similar than they initially appear. U.S. inheritance laws, explicitly characterized by freedom of testation, include numerous substantive limits on how a testator may dispose of her property at death. Courts often use doctrines such as mental capacity, undue influence, and fraud to void wills that do not provide for the decedent’s children. Also, because over one half of all Americans die intestate, or without a will, children are provided for in this way as well. French inheritance laws, which on their face appear to require everyone to leave at least half of their property to their children, similarly allow for significant deviation from this rule. Some techniques, such as life insurance, tontines, and usufruct interests have been around for a while. Since 2006, however, the law has given French parents even greater ability to control the distribution of their estates. This paper examines French and U.S. inheritance law, with an eye towards these initial differences, and deeper similarities.

October 15, 2014 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Article on Access to Decedents' E-mail

Rebecca CummingsRebecca G. Cummings recently published an article entitled, The Case Against Access to Decedents' E-mail: Password Protection as an Exercise of the Right to Destroy, 15 Minn. J. L. Sci. & Tech. 897-947 (2014). Provided below is the abstract of the article:

There is currently substantial national momentum in state legislatures to grant personal representatives access to decedents’ e-mail as a part of a larger grant of access to all digital assets. In this Article, I make the case against such a default rule granting access to decedents’ e-mail. In the past nine years, Yahoo has not softened its position towards those who seek access to a Yahoo user’s e-mail post mortem. However, the other two largest e-mail service providers have more lenient policies on access to decedents’ e-mail. In this Article, I examine the service providers’ perspectives on access to decedents’ e-mail. Commentators are overwhelmingly supportive of access by personal representatives. They typically position Internet service providers, those providers’ terms of service, and secret passwords chosen by the deceased as stumbling blocks to efficient estate administration, the preservation of unique and irreplaceable sentimental and historical data, and the transfer of valuable property into the hands of deserving family members. Beginning with Connecticut in 2005, seven states have enacted statutes granting personal representatives some level of access to decedents’ digital assets, including e-mail. As of October 2013, about a dozen additional states have pending legislation that grants personal representatives access to decedents’ e-mail. Additionally, in January 2012, the Uniform Law Commission created a committee to “study the need for a feasibility of state legislation on fiduciary powers and authority to access digital information.” The committee is now operating with the mission to draft an act that “will vest fiduciaries with at least the authority to manage and distribute digital assets, copy or delete digital assets, and access digital assets,” and has developed a working draft that grants personal representatives access to password-protected e-mail accounts of the deceased (the Draft Uniform Act). I highlight the problems with, and new issues raised by, the access laws, proposed laws, and the Draft Uniform Act, and explore the problems with the arguments for access to decedents’ e-mail. I then assert that the commentary, statutes, and proposed legislation fail to adequately consider decedents’ intent, or probable intent, which is the bedrock of estate jurisprudence. I argue that storing e-mail in a password-protected account, coupled with nondisclosure of that password by the deceased, is an exercise of a decedent’s right to destroy his or her own property. Further, I maintain that state law and the Draft Uniform Act granting access to decedents’ e-mail inappropriately infringe upon this right. I conclude in Part V with a recommendation for an alternative default rule.

October 14, 2014 in Articles, Estate Planning - Generally, Web/Tech | Permalink | Comments (0) | TrackBack (0)