Wills, Trusts & Estates Prof Blog

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

Thursday, July 27, 2017

Article on Dealing with Shares on a Shareholder's Death: The Plight of the Deceased's Personal Representative

24731277-Forex-market-charts-on-computer-display-Stock-Photo-forex-candlestickAkmal Hidayah Halim, Wan Noraini Mohd Salim, Halyani Hassan, Nor Azlina Mohd Noor, & Azhani Arshad recently published an Article entitled, Dealing with Shares on a Shareholder's Death: The Plight of the Deceased's Personal Representative, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Objective: This paper aims to examine the extent of the personal representative's duties and liabilities in dealing with shares on the death of a shareholder. The paper also analyses the procedure to administer the shares and the available options to the estate beneficiaries with regard to their entitlements to the shares.

Methodology/Technique: The discussion adopts the doctrinal analysis by examining the existing primary and secondary materials, including statutory provisions as provided by the Probate and Administration Act 1959 and the Companies Act 1965, case law and other legal and non-legal literatures relating to the duties and liabilities of the personal representative in dealing with the deceased's shares.

Findings: The discussion adopts the doctrinal analysis by examining the existing primary and secondary materials, including statutory provisions as provided by the Probate and Administration Act 1959 and the Companies Act 1965, case law and other legal and non-legal literatures relating to the duties and liabilities of the personal representative in dealing with the deceased's shares.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 27, 2017 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, July 26, 2017

Article on The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust

161027_ff_cuttingoffkidsAngela M. Vallario recently published an Article entitled, The Elective Share Has No Friends: Creditors Trump Spouse in the Battle Over the Revocable Trust, Wills, Trusts, & Estate Law eJournal (2016). Provided below is an abstract of the Article:

A revocable trust is a popular estate planning tool used to disinherit a spouse in fifteen jurisdictions. In common law jurisdictions a surviving spouse, who is dissatisfied with his or her inheritance, has the right to receive an elective share of the decedent’s estate regardless of the decedent’s estate plan. However, fifteen jurisdictions have defined a dissatisfied spouse’s rights with a fractional share of the deceased spouse’s “net probate estate,” allowing one spouse to disinherit the other, by single-handedly transferring his or her assets to a revocable trust. To add insult to injury seven of these common law jurisdictions have recently codified trust law making it seamless for the decedent’s creditor to be paid from revocable trust assets.

The elective share is one of few limitations imposed on testamentary freedom. Common law property jurisdictions have created a public policy-based statute for married persons that prohibit the first-to-die spouse from disinheriting his or her surviving spouse. To avoid disinheritance, common law jurisdictions statutorily protect a surviving spouse (“spouse”) with an elective share. The elective share arose in the early twentieth century as a replacement of dower and curtesy rights. At that time the nature of wealth shifting from real to personal made dower and curtesy obsolete. The elective share protected the spouse from disinheritance by guaranteeing him or her with a fractional share of the deceased spouse’s net probate estate, a method known as the traditional elective share. However, like the shift from real to personal property there has been a subsequent shift in wealth from probate to non-probate assets (like revocable trusts) making the traditional elective share equally obsolete and inadequate to protect a spouse from disinheritance.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 26, 2017 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, July 25, 2017

Article on Identifying Connections between Elder Law and Gerontology: Implications for Teaching, Research, and Practice

BridgeNina A. Kohn,Maria Teresa Brown, & Israel Issi Doron recently published an Article entitled, Identifying Connections between Elder Law and Gerontology: Implications for Teaching, Research, and Practice, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Scholars have long called for elder law to become part of the larger study of gerontology. The authors conducted a qualitative, empirical study to determine the extent of connections between the fields of gerontology and elder law and to identify strategies for bridging gaps between the fields. As reported in this Article, we found that although both elder law academics and gerontologists indicate that both fields would benefit from research collaboration and cross-disciplinary teaching, the fields remain distinct with limited interaction. Based on these findings, we identify five key strategies for fostering meaningful connections between the fields. Finally, drawing on the expertise of the elder law academics and leading gerontologists interviewed as part of this study, we discuss how fostering such connections could work to the mutual benefit of the two fields and, potentially, improved policy-making in the area of aging.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 25, 2017 in Articles, Elder Law, Estate Planning - Generally, Teaching | Permalink | Comments (0)

Monday, July 24, 2017

Article on 2016 Developments in Connecticut Estate and Probate Law

5c93fe16bb57e784835b7aa857de8020Jeffrey A. Cooper, John R. Ivimey, & Katherine E. Coleman recently published an Article entitled, 2016 Developments in Connecticut Estate and Probate Law, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This Article provides a summary of recent developments affecting Connecticut estate planning and probate practice. Part I discusses 2016 legislative developments. Part II surveys selected 2016 case law relevant to the field.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 24, 2017 in Articles, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Saturday, July 22, 2017

Article on Charges for Charges: Home Sales Under the Care Act 2014

78483232_XSBrian Sloan recently published an Article entitled, Charges for Charges: Home Sales Under the Care Act 2014, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Unlike healthcare, broadly provided free at the point of delivery in England, social care is subject to a means test that can include the care recipient’s home. One principle embodied in the Care Act 2014 is nevertheless the frequent undesirability of a recipient being forced to sell her own home during her lifetime to fund her care. It therefore seeks to increase the availability of Deferred Payment Agreements (‘DPAs’), enabling a local authority to make a secured loan to the care recipient. Even if this system is beneficial to such recipients themselves, it can have profound implications for people who wish to remain in the home of a now-deceased recipient. This is particularly true given that the secured loan facilitated by a DPA is due for repayment just 90 days after a recipient’s death, and that former co-residents might be vulnerable former providers of informal care. This paper aims to evaluate the relationship between former co-residents and home sales forced by local authorities, comparing a former co-resident’s position with that of others whose homes are the subject of attempted forced sale by creditors in other contexts, by examining law, guidance and codes of practice. The fundamental question is whether the system of DPAs governed by the Care Act adequately balances the perceived societal interest in ensuring that those with means contribute towards their care costs and the individual interests of former co-residents in remaining in their own homes after the death of a social care recipient.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 22, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, July 21, 2017

Article on Note. Michigan’s elective share: an EPIC failure

LeighAnna C. Cunningham recently published an Article entitled, Note. Michigan’s elective share: an EPIC failure, 94 U. Det. Mercy L. Rev. 273 (2017). Provided below is an abstract of the Article:

Michigan’s elective share stands out as singular in the landscape of current probate law, because Michigan’s elective share still allows a spouse to completely disinherit the surviving spouse. The history behind the current law reveals no justification to explain the rationale behind its approach, which remains unchanged since its original enactment in 1979. To be sure, it provides strong protection of testamentary freedom but at the cost of allowing testators to ignore spouse’s contributions to marital wealth, contributions that are otherwise recognized in Michigan Law. The historical reasons for such disregard of the surviving spouse are now outdated.

July 21, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on The Modern Family: Why the Florida Legislature Should Remodel Its Antilapse Statute for Wills to Reflect the Changing Familial Structure

Modern-familyCourtney Chaipel Pugh recently published an Article entitled, The Modern Family: Why the Florida Legislature Should Remodel Its Antilapse Statute for Wills to Reflect the Changing Familial Structure, 46 Stetson L. Rev. 659 (2017). Provided below is an abstract of the Article:

These changes in the family structure over the past several decades have led to difficulty in the estate planning arena for individuals who have an idea of how they would like to distribute their wealth, but little clue on how to effectuate their desires when multiple marriages and/or various familial relationships are involved.14 Several professionals in the area of estate planning have sought to simplify (or at least illuminate) the estate planning process for such individuals, but it may be difficult to do so when some state statutory schemes are not viable for the modern, developing family.

July 21, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article on Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance

ElderNatasa Glisic recently published an Article entitled, Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance, 22 Barry L. Rev. 111 (2016). Provided below is an abstract of the Article:

This comment explains the impact that expanding the Slayer Rule will have on reducing the elder-abuse epidemic by supplementing the current elder-abuse statutes. Society and the legislature agree that a person should not benefit from his wrongdoing, so there is no reason to not expand the Slayer Rule in Florida at this time. Elder-abuse perpetrators are continuously reaping the benefits of their wrongdoing by inheriting from those they have abused.

Part I of this comment begins by looking at the current elder population and elder abuse types and trends. Part II examines Florida’s elder-abuse statutes and the reasons they are not very effective. Part III glances at the history of the Slayer Rule and Florida’s implementation of it. Part IV assesses the states that have already expanded their Slayer Rule to cover elder abuse; and Part V proposes a plan to expand Florida’s Slayer Rule.

 

July 21, 2017 in Articles, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, July 20, 2017

Article on Selective Issues in Effective Medicaid Estate Recovery Statutes

NhsRaymond C O'Brien recently published an Article entitled, Selective Issues in Effective Medicaid Estate Recovery Statutes, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will continue to face uncertainty over what will become of family assets demanded to pay for long-term care.

This article examines what constitutes an “estate” for purposes of asset recovery to pay for long-term care expenditures. It also analyzes whether it is permissible for estate recovery programs to trace assets of a Medicaid recipient transferred during the recipient’s lifetime, thereby depriving the Medicaid recipient or the recipient’s spouse of an interest in the asset at the time of death. Finally, this article considers whether an annuity purchased to provide exempt income for a recipient’s spouse should be considered a resource sufficient to disqualify an applicant from Medicaid eligibility. The article suggests that with an increase in the elderly population in need of long-term care and increased pressure on the entitlement programs that provide such care, it is crucial that Congress pass comprehensive legislation.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 20, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article on Note: Stop Frustrating the Testator's Intent

TSBB_Frustration-440x293Jeffrey A. Dorman recently published an Article entitled, Note: Stop Frustrating the Testator's Intent: Why the Connecticut Legislature Should Adopt the Harmless Error Rule, 30 Quinn. Prob. Law Jour. 36 (2016). Provided below is an abstract of the Article:

In Connecticut, for over two hundred years, wills, their formation, and their execution have been governed by the formalities of the Wills Act. These formalities, codified in Conn. Gen. Stat. section 45a-251 (2016), outline the strict guidelines that a will must comply with in order to be considered valid. The statute requires that the document be in writing, signed by the testator, and attested by two witnesses.  Connecticut courts have strictly followed this bright-line rule in the past; more recently, however, these same courts have utilized the curative doctrine of substantial compliance and have considered applying the harmless error rule to determine whether a will is valid. With the growth of services, such as LegalZoom, and the establishment of highly accessible legal kiosks, more and more testators are drafting wills without an attorney. 6 Given this increasing trend, mistakes are bound to happen, especially with will drafting and execution, and it is highly unlikely that each drafted document will follow the strict statutory formalities that the Wills Act proscribes. As more testators draft their own wills utilizing the easy and efficient do-it-yourself legal services, Connecticut courts (as well as other jurisdictions) should be wary of putting form over substance by strictly adhering to the aforementioned statutory formalities. Instead, reviewing courts should focus their concerns on whether the testator intended the document to act as his or her will.

July 20, 2017 in Articles, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)