Wills, Trusts & Estates Prof Blog

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

Monday, April 24, 2006

Financial Issues and Guardianships

In her Note, Erin Duques discusses Support for Relative Caregivers: A Look at the Financial Disincentives to Pursuing Guardianship Through the Probate Courts, 19 Quinnipiac Prob. L.J. 87 (2005).

Here is the conclusion of her article:

Across the United States, the numbers of grandparents and relatives raising children related to them are growing. For these relatives, the process and structure of the probate courts offer an efficient and relatively easy way to pursue guardianship. Yet, despite the benefits of the probate courts, many relatives are forced to maneuver through the child welfare system, a process that requires that they relinquish custody to the state, provided they already have it, and undergo substantial state intrusion in order to obtain or regain custody from the state agency. Only then will these relatives be eligible to receive the maximum financial assistance available through the federal foster care system and many state subsidy programs. A growing belief that kinship caregivers may help to solve the problems of the country's failing foster care system has in large part put pressure on federal legislators to propose changes to federal law that would allow states the flexibility to use federal foster care funds to support state guardianship subsidization programs. Until then, states like Connecticut, with existing state funded subsidy programs, should continue to search for ways to expand existing programs so at the very least, children raised by indigent court appointed guardians can receive amounts close to what those in the care of relative and non-relatives in the foster care system receive. If willing to expand the program, Connecticut's probate courts and its child welfare agency could easily work together to implement a program that would result in cost savings to the state and better permanency options for Connecticut's youth.

April 24, 2006 in Articles, Guardianship | Permalink | Comments (0) | TrackBack (0)

Tax Update

Prof. Wendy Gerzog (University of Baltimore School of Law) has recently published an article which "review[s] recent cases, regulations, rulings, and publications in the area of the taxation of trusts, estates, and gifts."

See Wendy C. Gerzog, Recent estate and gift tax developments, 19 Quinnipiac Prob. L.J. 59 (2005).

April 24, 2006 in Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (0) | TrackBack (0)

Sunday, April 23, 2006

Probate Avoidance -- A Good Thing??

Judge William P. DeFeo (Connecticut Probate Court) has recently published his article entitled  Avoiding Probate Court: A Judge's Perspective, 19 Quinnipiac Prob. L.J. 53 (2005).

Here is an excerpt from the judge's article:

Write a will? Prepare a living trust? Purchase an annuity? Deliver cash gifts? These are the decisions that make up the critical pieces of a well constructed estate plan - a plan that deserves to be built upon a foundation of accurate, reliable information. Avoiding probate is not a plan, it is a commercially manufactured scheme designed to lure an uninformed public away from the good counsel of a licensed legal professional. The lofty promises to eliminate estate costs and realize huge tax savings are summarily dismissed by reasonable people. Good estate planning is not accomplished by performing a legal 'sleight of hand.' As any good plan, it is the result of clear thought and deliberate action.

April 23, 2006 in Articles, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0) | TrackBack (0)

Saturday, April 22, 2006

Top SSRN Downloads

The top downloads for the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days for the period from February 20, 2006 to April 21, 2006 are as follows:

Rank Downloads Paper Title
1 53 A Rule against Perpetuities for the Twenty-First Century
Frederick R. Schneider,
Northern Kentucky University - Salmon P. Chase College of Law,
Date posted to database: March 7, 2006
Last Revised: April 2, 2006
2 50 Conditional Love: Incentive Trusts and the Inflexibility Problem
Joshua C. Tate,
Southern Methodist University - Dedman School of Law,
Date posted to database: January 10, 2006
Last Revised: March 17, 2006
3 35 Taxing Middle Class Trust(s)
Pamela Champine,
New York Law School,
Date posted to database: March 31, 2006
Last Revised: March 31, 2006
4 32 A Marriage Skeptic Responds to the Pro-Marriage Proposals to Abolish Civil Marriage
Nancy J. Knauer,
Temple University - Beasley School of Law,
Date posted to database: March 10, 2006
Last Revised: April 21, 2006
5 17 Understanding Debt Subordination and the Rule in Cherry v Boultbee: Re SSSL Realisations
Look Chan Ho,
Freshfields Bruckhaus Deringer,
Date posted to database: February 17, 2006
Last Revised: February 21, 2006
6 12 Judicial Discretion and the Disappearing Distinction Between Will Interpretation and Construction
Richard F. Storrow,
Pennsylvania State University - The Dickinson School of Law,
Date posted to database: February 7, 2006
Last Revised: March 15, 2006

April 22, 2006 in Articles | Permalink | Comments (0) | TrackBack (0)

Friday, April 21, 2006

Oregon & the Uniform Trust Code

The Willamette Law Review has recently released an issue entitled Oregon Uniform Trust Code and Comments Special Issue, 42 Willamette L. Rev. 187 (2006).

This issue contains an introduction by Professor Valerie Vollmar, Introduction, 42 Willamette L. Rev. 187 (2006), and is followed by The Oregon Uniform Trust Code and Comments, 42 Willamette L. Rev. 195 (2006).

April 21, 2006 in Articles, New Legislation, Trusts | Permalink | Comments (0) | TrackBack (0)

Pastor Mom Goes Bad

Roy Buckley died serving his country in Iraq and left behind a minor daughter.  Roy also had life insurance for $250,000 which was designated for his daughter.  Roy's mom, a pastor at the Church of Jesus Christ in New Chicago, Indiana, was named as the guardian of these funds.

Prosecutors claim that instead of preserving these funds for the daughter, Roy's mom "spent all the cash on cars, jewelry, a Florida time-share, church pews and a baby grand piano."

See Pastor mom cited for theft of soldier's life insurance, AP, April 21, 2006.

So, we are reminded how important it is to select fiduciaries with great care and that even those people whom you think you could trust, may be the first to betray this trust.

April 21, 2006 in Current Events, Guardianship, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Thursday, April 20, 2006

Multi-Language Advance Directives -- Should they be federally mandated?

In her note, Catherine J. Jones (Managing Editor, Elder Law Journal) argues that advance directives should be provided in multiple languages.  See Say What? How the Patient Self-Determination Act Leaves the Elderly with Limited English Proficiency out in the Cold, 13 Elder L.J. 489 (2005).

Here is the conclusion of her article:

As it stands, the PSDA ignores the right to self-determination of 1.8 million elderly LEP Americans. The PSDA has a history that strongly suggests that its purpose is to educate and empower individuals regarding end-of-life medical treatment, and yet it potentially abandons a rapidly growing part of the population who could gain great advantage from its provisions. LEP elders, like all older Americans, have an interest in advance directive legislation and policy, and because their age group more frequently faces decisions regarding end-of-life medical treatment, their interest is even greater than that of most Americans.

Without a stipulation that advance directive written information be provided in multiple languages, LEP elder patients are put at a severe disadvantage. They are left behind because the PSDA's mandate for knowledge and empowerment does not apply to them. All of the written instructions in the world amount to nothing if the patient who receives them cannot understand the language in which they are written. This oversight not only leaves LEP patients unable to fully enjoy the rights they are entitled to, it also undermines the very purpose of an act that is premised on educating the public. Furthermore, leaving health care facilities with little guidance regarding their obligations towards LEP elder individuals and their end-of-life treatment rights may expose facilities to discrimination litigation under the Civil Rights Act.

States have always had the option of adding provisions for linguistic accommodation to their advance directive statutes, and yet none have done so. Against that backdrop, Congress, to effectuate the PSDA's purpose, should amend the Act to include a provision that instructs states not only to provide written information about their statutes, but also to provide appropriate translations so that all residents of the state may enjoy the security of knowing their rights in the event of incapacitation. Modern technology provides a forum - the internet - in which information can be made accessible to large geographic areas without wasting resources.

Amending the PSDA in this way would help the Act fulfill its purpose of educating the public, no matter what language in which it communicates, on the importance of executing advance directives

April 20, 2006 in Articles, Death Event Planning, Disability Planning - Health Care | Permalink | Comments (0) | TrackBack (0)

Impact of Legal Blogs

The following is from a message I received from Ian Best, the third year law student from Ohio State who has prepared the best, in my opinion, taxonomy of law blogs.
I wanted to let you know that I've just posted a collection of law review articles which cite legal blogs. There are 70 legal blogs represented. The 27-page collection is available for downloading here:
 
http://3lepiphany.typepad.com/3l_epiphany/2006/04/lawrevsciteblog.html.
   
Your blog is cited 1 time. But let me know if you are aware of articles that I have missed.
   
Also, there are two interviews with judges that you might be interested in, because they talk about legal blogs and law review articles. The posts are:
   
1. Justice Judith Ann Lanzinger, Ohio Supreme Court:
2. Richard G. Kopf, U.S. District Judge (Nebraska):

April 20, 2006 in About This Blog, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 19, 2006

Bankruptcy and Estate Planning

The Impact Of The New Bankruptcy Laws Upon Estate Planning is the title of a teleconference to be sponsored by the Cannon Financial Institute on April 25, 2006.  Here is a description of the program:

Many estate planning professionals have not understood how the provisions of the new bankruptcy laws crisscross multiple estate planning techniques.  One area of estate planning that has been particularly affected is the area of utilizing trusts for creditor protection.  Drafting will also have to change to realize objectives more readily obtainable under prior law.  There are multiple conflicts between the Federal bankruptcy provisions and state creditor and debtor laws.  In this teleconference, Roy Adams and Clary Redd will address:

  • What are the specific provisions of Federal bankruptcy law affecting estate planning?
  • What are the most common conflicts between state and Federal law?
  • How does the Federal law change the drafting of estate planning documents, including wills, trusts and powers-of-attorney?
  • What are the ethical considerations in counseling clients to take advantage of creditor protection remedies?
  • Do off-shore trusts play an even greater role now?

April 19, 2006 in Conferences & CLE | Permalink | Comments (0) | TrackBack (0)

Alabama Enacts Uniform Trust Code

Alabama has enacted the Uniform Trust Code.  Ala. Laws Act 2006-216.

Alabama becomes the 16th state to enact the UTC.

The Alabama version of the UTC will take effect on January 1, 2007.

April 19, 2006 in New Legislation, Trusts | Permalink | Comments (0) | TrackBack (1)