Wills, Trusts & Estates Prof Blog

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

Sunday, April 24, 2005

Family Limited Partnerships

Prof. Wendy Gerzog has recently published an article entitled How Do D'Ambrosio and Wheeler Fit Into the FLP Debate? 107 Tax Notes 387 (Apr. 18, 2005).  Prof. Gerzog describes her article as follows:

The article analyzes the way in which Kimbell and Turner, two recent family limited partnership/section 2036 cases, discuss their respective precedents, Wheeler and D’Ambrosio. "Wheeler and D’Ambrosio are the Fifth and the Third Circuit’s cases that are ostensibly on the same side of an older debate with the Claims Court’s decision in Gradow about the valuation equivalence of partial property interests within the context of the bona fide sale exception of section 2036. While Wheeler and D’Ambrosio seem to draw the same conclusion on what constitutes adequate and full consideration in money or money’s worth for section 2036 purposes, Kimbell and Turner are not as in sync on that issue as they first appear. Moreover, while Wheeler and D’Ambrosio look as if they are identical interpretations of the adequate and full consideration exception of section 2036, they may have essential differences that initially were not visible."

April 24, 2005 in Articles, Estate Planning - Generally, Estate Tax | Permalink | TrackBack (0)

Friday, April 22, 2005

The following information was graciously supplied by John "JJ" Jacobson:

The site, http://www.jjhelp.com, was created as project assigned in a Cyberlaw course by Professor Craig Gold of Concord Law School.  The purpose of creating the site is to help students understand what goes into creating a web site.  The assignment paid particular attention to the Terms of Use and Privacy Policy sections. Once the course has been completed, I will expand and deepen the site’s coverage of the subjects of estate planning, Cyberlaw and legal technology.

Concord Law School http://www.concordlawschool allows non-traditional students, like me, the opportunity to obtain a law degree that would impossible without it.  If you have any questions about the site or Concord Law School, please contact me at mailto:jj@jjhelp.com.

April 22, 2005 | Permalink | TrackBack (0)

New Edition of Dukeminier & Johanson

The Seventh edition of Wills, Estates, and Trusts will be released shortly.  Follow the link to learn about the enhancements to the casebook as well as the addition of two new authors, Prof. James Lindgren and Prof. Robert H. Sitkoff, both from Northwestern University.

April 22, 2005 in Books - For the Classroom | Permalink | TrackBack (0)

Thursday, April 21, 2005

Conditional Wills

True conditional will cases are rare -- usually the court deems will language such as, "I write this will because I am afraid I'll die from my upcoming surgery," as a statement of inducement rather than condition.  Here is a recent true conditional will case.

The testator’s will stated that he made the dispositions in the will “in case” he died during pending heart surgery.

The testator survived the operation and died sometime after the surgery in his sister’s home.

The court in the case of In re Estate of Perez, 155 S.W.3d 599 (Tex. App.--San Antonio 2004), held that the will was conditional and that the testator intended it to be effective only if the testator died during the surgery.

April 21, 2005 in New Cases, Wills | Permalink | TrackBack (0)

Math and the Estate Planner

When discussing intestate distribution, I often have to teach law students how to perform basic arithmetic functions such as computing fractions.  Students have even told me that they picked law because they thought it did not involve math.

But, fractions are just the beginning!  Sometimes, estate planners need to apply sophisticated mathematical processes to do a competent job for their clients.

An upcoming webcast seminar entitled Mathematics and Economics for Estate Planners by Roy M. Adams and Ann B. Burns is described as follows:

There are so many estate planning techniques to choose from.  Most are sensitive to economic conditions so you must be on top of your economic and math skills.  Do you know which techniques work best in low interest rate environments?  In some cases, we can even choose the interest rate we want to use.  Do you know what rate is best for the client? When does charitable planning make mathematical & economical sense? How does insurance help to meet liquidity needs?

April 21, 2005 in Conferences & CLE, Estate Planning - Generally | Permalink | TrackBack (0)

Wednesday, April 20, 2005

Domestic Partnerships & Tenancies by the Entirety

A same-sex couple residing in New Jersey entered into a marriage in Canada, a civil union in Vermont, and became registered domestic partners under New Jersey law.  The partners transferred their home into a tenancy by the entirety from a joint tenancy with right of survivorship after the marriage and civil union but prior to the registration.  They then claimed a 100% exemption from property tax based on the total disability of the veteran partner.  The parties had been receiving a 50% exemption based on the veteran’s proportionate ownership of the joint tenancy.

The court in Hennefeld v. Township of Montclair, No. 007682-2004, 2005 WL 646650 (N.J. Tax Ct. Mar 15, 2005), held that the couple could not hold the residence in a tenancy by the entirety because comity does not require New Jersey to recognize the Canadian marriage or the Vermont civil union.

However, the couple is entitled to the 100% exemption under the New Jersey domestic partnership act from the date of their registration as domestic partners.

Special thanks to Prof. William P. LaPiana for bringing this case to my attention.

April 20, 2005 in New Cases, Non-Probate Assets | Permalink | TrackBack (0)

Interesting Adoption Case

In 1959, the settlor created New York trusts for the issue of his children which expressly stated that “adoptions shall not be recognized.”  One of the settlor’s daughters and her husband became parents of fraternal twins through a surrogacy arrangement under which an anonymously donated ova was fertilized with the husband’s sperm and carried to term by an unrelated surrogate mother.  The agreement was governed by California law and a California court subsequently issued a judgment of paternal relationship establishing the daughter and her husband as the parents of the twins.  The trustees petitioned for construction of the trust.

The court in the case of In re Doe, No. 3013-1980, 2005 WL 236164 (N.Y. Sur. Ct. Jan. 25, 2005), held that the settlor did not intend to extend the exclusion of “adoptions” to the assisted reproduction techniques at issue and that the California paternity order was entitled to full faith and credit in New York.

Special thanks to Prof. William P. LaPiana for bringing this case to my attention.

April 20, 2005 in Estate Planning - Generally, New Cases, Trusts | Permalink | TrackBack (0)

Tuesday, April 19, 2005

Idaho Requires Quick Birth of Afterborn Heirs

As of July 1, 2005, Idaho will require posthumous heirs to be born within 10 months of a decedent’s death.

Previously, the statute permitted an afterborn to share in an inheritance or gift merely if he or she was conceived before the decedent’s death.

This statute is a reaction to the increasing use of artificial reproduction techniques which allow a person who is conceived before a decedent’s death to be born years or decades thereafter (e.g., by freezing an embryo which is later implanted and brought to term).

2005 Idaho Laws ch. 123.

April 19, 2005 in Estate Planning - Generally, Intestate Succession, New Legislation | Permalink | TrackBack (0)

Arkansas Adopted Uniform Simultaneous Death Act

The Arkansas Legislature recently enacted the Uniform Simultaneous Death Act.  The Act will take effect on January 1, 2006.  Act 74 (HB 1035).

April 19, 2005 in Estate Planning - Generally, New Legislation | Permalink | TrackBack (0)

Monday, April 18, 2005

Arkansas Adopted Trust Code

Effective September 1, 2005, the Arkansas Trust Code will take effect.  This Code is based on the Uniform Trust Code.   Ark. Laws Act 1031 (SB 336).

April 18, 2005 in New Legislation, Trusts | Permalink | TrackBack (0)