Thursday, January 18, 2018
Miloš Vukotić recently posted an Article entitled, Importance of Will Execution Formalities in Serbian Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
This article deals with requirements of testamentary form and their application in judicial practice in Serbia. In contrast to the prevailing tendency of reducing formalism in the law of wills, Serbian courts require strict compliance with all will execution formalities. The main thesis of this article is that strict compliance with formalities should be abandoned in favour of substantial compliance and that some statutory formalities should be completely removed. The author discusses the general tendency of reducing formalism in a comparative perspective, the functions of will execution formalities and the formal requirements under Serbian law and their application in judicial practice.
Tuesday, January 16, 2018
Article on Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family
Danaya C. Wright & Beth Sterner recently published an Article entitled, Honoring Probable Intent in Intestacy: An Empirical Assessment of the Default Rules and the Modern Family, 42 ACTEC Law Journal 341 (2017). Provided below is an abstract of the Article:
This article provides preliminary analysis of an empirical study of nearly 500 wills probated in Alachua and Escambia Counties in the State of Florida in 2013. The particular focus of the study is to determine if there are noticeable patterns of property distribution preferences among decedents based on their diverse family relationships. Earlier empirical studies of distribution preferences indicated that a majority of married decedents wanted to give all or most of their estates to their surviving spouses. As a result of these studies, most states amended their probate codes to give surviving spouses a sizable percentage of a decedent spouse's estate under their intestacy provisions. But with the explosive growth of nontraditional families, particularly blended families with stepchildren, the standard estate plan for these nontraditional decedents is actually a revocable trust with a QTIP provision to provide for the surviving second or third spouse, thus protecting a significant portion of the property for the children by a prior marriage. As family patterns have changed and the blended family has become more ubiquitous, there is a growing divergence between the estate plans of those who can afford to make them, and the default rules of intestacy.
In this article, we report our initial findings in a comprehensive study of testate estates through the lens of family relationship patterns. Focusing on distributions to second or subsequent spouses, and bequests to stepchildren, we show that intestacy laws still tend to fit most decedents' preferences regarding bequests to surviving spouses, though certainly the fit is less close than with first spouses, but that there is a significant gap in the intestacy law's treatment of step-children. Moreover, these are definite gender-based differences in treatment of surviving second-spouses that suggest our intestacy laws are not providing as close a fit as they could.
Monday, January 15, 2018
Historically, trusts have evaded the NC [numerus clausus] filter for highly formalistic reasons: the trust form separates legal from equitable title, and traditionally, NC has applied only to forms of legal title, ignoring all of the myriad equitable interest trusts create. As I explain below, this distinction makes little sense. I argue that the NC should apply to the beneficial interests of trusts just as it applies to other property forms. Bringing equitable interests into the NC analysis would change the legal landscape of trust law and force a much more rational discussion of the role that trusts play in our society and our estate planning.
Sunday, January 14, 2018
The trust provisions of the Revised Statutes of 1830 were a radical transformation of the law of trusts as it htne existed in the Anglo-American legal world. The Revised Statutes as a whole and the story of their adoption has not received a thorough treatment in many decades, and this paper certainly is not an attempt to fill that gap. Rather, it illustrates the radical nature of the trust provisions of the Revised Statutes by examining the first case to apply them to a will contest. Some background, however, is still necessary.
Saturday, January 13, 2018
Margaret Ryznar recently posted an Article entitled, Tax and Family Law Ties, Family & Children's Law eJournal (2018). Provided below is an abstract of the Article:
As tax reform is debated, an important dimension to the debate should be highlighted: the interplay between tax and family law. This article examines that link.
Friday, January 12, 2018
Mitchell M. Gans & Jonathan G. Blattmachr recently published an Article entitled, Family Limited Partnerships and Section 2036: Not Such a Good Fit, 42 ACTEC Law Journal 253 (2017). Provided below is an abstract of the Article:
The IRS has struggled to close down abusive family limited partnerships. At first unreceptive to IRS arguments, the courts eventually embraced section 2036 as an estate-tax tool for attacking such partnerships. Because the section was not designed to apply to partnerships, difficulties have arisen as the courts have struggled with the fit. In its most recent encounter, the Tax Court in Powell grappled with a fit-related issue that implicates the Supreme Court's landmark decision in Byrum. The Powell court, it will be argued, misread Byrum, conflating the majority opinion with the dissent — and converting the rule-based approach adopted by the majority into the standard-based approach advocated by the dissent. The article examines Powell, its reading of Byrum and its struggle with fit-related issues. Before concluding, planning suggestions will be offered.
Thursday, January 11, 2018
Simon Archer recently posted an Article entitled, Trusts Through the Lens of Insolvency Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
A review of the remedy of deemed trusts in pension law and jurisprudence in Canada, with an emphasis on insolvency proceedings. The argument is made that courts attempt to find ways not to apply the remedy because it unsettles creditors expectations and interests and as a result retirees and employees bear significant risks to pension (and other benefit) reductions in insolvencies.
Wednesday, January 10, 2018
Article on A Survey of Lawyers’ Observations About the Principles Governing the Award of Spousal Support Throughout the United States
J. Thomas Oldham recently posted an Article entitled, A Survey of Lawyers’ Observations About the Principles Governing the Award of Spousal Support Throughout the United States, Family & Children's Law eJournal (2017). Provided below is an abstract of the Article:
At the beginning of this project, I distributed 5000 questionnaires to family lawyers around the country. I asked the lawyers to respond by estimating the spousal support award, if any, that would result for six hypothetical divorcing couples in their jurisdiction. While the response rate was not great, the responses received suggest that there are three different types of spousal support systems in the U. S. today. In some states, spousal support is rarely awarded, and then only to prevent severe hardship. In others, spousal support is frequently awarded when the spouses’ incomes are substantially different at divorce. In most states, however, it appears that there is no clear spousal support policy, and the award, if any, in any given case is the result of which judge is assigned to hear the matter. In these states, spousal support determinations appear to be arbitrary. I have included as an appendix to my article a summary of the responses.
Some states have responded to this lack of clarity regarding spousal support standards by adopting guidelines. These guidelines attempt to provide more uniformity in terms of award amounts and award duration. To date, they have not attempted to provide guidance regarding when a spousal support award is warranted. In this article, I discuss how spousal support standards could be clarified in those states where there appears to be no clearly accepted policy.
Tuesday, January 9, 2018
Samuel A. Donaldson recently posted an Article entitled, Understanding the Tax Cuts and Jobs Act, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
This manuscript summarizes key provisions of the so-called "Tax Cuts and Jobs Act" affecting United States individuals, small businesses, estates, and trusts. It does not cover changes made to pension and retirement accounts, provisions applicable only to certain industries, rules applicable to tax-exempt organizations, international tax reform, or repeal of the individual mandate under the Patient Protection and Affordable Care Act.
Shawn Bayern recently posted an Article entitled, An Unintended Consequence of Reducing the Corporate Tax Rate, Tax Law: Tax Law & Policy eJournal (2017). Provided below is an abstract of the Article:
This article explains how a 20 percent corporate tax rate could be exploited to avoid individual income taxes. (It was printed in November 2017, when a 20 percent corporate tax rate was under consideration. Similar principles apply to a 21 percent tax rate, but to a lesser extent if the maximum individual rate is lowered to 37 percent.)