Wills, Trusts & Estates Prof Blog

40 Years of Statutes

Gregory S. Alexander (A. Robert Noll Professor of Law, Cornell Law School) and Mary Louise Fellows (Everett Fraser Professor of Law, University of Minnesota School of Law) have recently authored an article entitled Forty Years of Codification of Estates and Trusts Law: Lessons for the Next Generation.

Here is the abstract of their article as posted on SSRN:

In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when a uniform law proposal limits the effect of intent-defeating rules. Uniform laws tend to fall into three categories: (1) statutes that usurp older statutory-based laws; (2) statutes, typically remedial in nature, that reverse the common law; and (3) statutes that predominantly codify the common law. We look at examples of each to show how the interplay between revered legal traditions and donative freedom affects the reception of uniform law proposals.

We also pay particular attention to intent-defeating common law doctrines and the risks that uniform law drafters face when they attempt to codify them in an environment where there is stiff jurisdictional competition for estate planning business.

Winners of ACTEC Writing Competition

The ACTEC Legal Education Committee has recently announced the winners of the 2006 Mary Moers Wenig Student Writing Competition:

FIRST PLACE WINNER: MICHAEL A. PASSANANTI

Domestic Asset Protection Trusts: The Risks & Roadblocks Which May Hinder Their Effectiveness

Mike Passananti attended Augustana College, where he graduated summa cum laude with a B.A. in finance. Mike received his J.D. in May, 2006, from DePaul College of Law. Mike hopes to practice law in Chicago with a concentration in business and estate planning.

SECOND PLACE WINNER: TIMOTHY A. DUFAULT

Donee Beware: Collateral Consequences of Family Limited Partnership Planning

Timothy attended Washington State University, where he earned a B.S. in Agribusiness, with Spanish as a second major. Timothy received his J.D. in May, 2006, from the University Of Arizona James E. Rogers College Of Law, where his professors honored him as the top tax student in his graduating class. He hopes to practice law in Yakima, Washington, with a concentration in corporate law and estate and tax planning.

THIRD PLACE WINNER: RICHARD A. DEVRIES

What a Long Strangi Trip Its Been: Family Limited Partnerships and Section 2036 of the Internal Revenue Code

Richard graduated from the University of Texas at Austin in 1996 with a degree in Structural Engineering. He is currently a part-time student at Marquette University Law School and expects to receive his J.D. in August 2006. He plans on practicing law in Milwaukee in the areas of Estate and Tax Planning.

HONORABLE MENTION: CANDACE HOWARD

From Markham to Marshall: Why the Probate Exception Should be Narrowly Construed

Candace earned a B.A. in Studio Art from the University of Maryland. She received her J.D. in May, 2006 from the University Of Maryland School Of Law, where she was an Associate Editor of the Maryland Law Review. Candace was the 2006 winner of the Roscoe Hogan Environmental Law Essay Contest and a Presidential Management Fellowship finalist. She is currently pursuing a fellowship appointment with a federal agency.

Trust Asset Protection

John K. Eason (Associate Professor of Law, Tulane Law School) has just published his article entitled Policy, Logic, and Persuasion in the Evolving Realm of Trust Asset Protection, 27 Cardozo L. Rev. 2611 (2006).

Here is the summary of the article as posted on SSRN:

The concept of using legal structures to protect property from those who might otherwise have some claim to it is an idea with deep roots.  The trust device is one such legal structure, and its evolution as an asset protection device has not been without controversy.  The recent and noticeable break with the traditional denial of self-settled trust protections is one such area of modern controversy, but not the only notable recent development.  This self-setted asset protection trust movement is accompanied by the recent completion of two major law reform projects.  The drafting and recommendation for state adoption of a Uniform Trust Code is one such project.  The Restatement (Third) of Trusts is the second.  Taken together, these developments have recently affected and will undoubtedly continue to influence the evolution of trust asset protection.  This Article considers these developments and their potential impact on the future course of trust asset protection.  Among the observations presented is the idea that the UTC holds a significant place in the development of trust asset protection—not so much because of the conclusions its drafters reached as to particular rules, but more so because of the express invitation the UTC presents to state legislatures to ponder their own trust protections and corresponding placement in the modern asset protection community.  Finally, this article provides insights into both the current and evolving status of trust asset protection by relating the noted reform projects to several trust protection developments seen in the last decade or so.  That exploration proceeds from a recognition of interest group politics as related to the UTC movement.  The discussion progresses to an evaluation of potential ideological influences on the future course of trust asset protections.  Along the way, consideration is given to the federal influences on that course.  Those influences are at least in part derived from the potential repeal of estate and generation-skipping transfer taxes, recent bankruptcy reform legislation, and the status of the federal/state Medicaid program.  Among the observations presented is the idea that these ideological and federal concerns push in multiple directions, often at the same time and in a conflicting manner, with a very uncertain but potentially significant effect on the future evolution of trust asset protection.

Malpractice

Earlier on this blog, I discussed the case of Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., ___ S.W.3d ___ (Tex. 2006), in which Executors sued Attorneys who prepared Testator’s will asserting that Attorneys provided negligent advise and drafting services.  Executors believed that Testator’s estate incurred over $1.5 million in unnecessary federal estate taxes because of the malpractice.  Both the trial and appellate courts agreed that Executors had no standing to pursue the claim because of lack of privity.  Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 141 S.W.3d 706 (Tex. App.—San Antonio 2004).  The appellate court explained that privity was mandated by Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996), and thus the court had no choice but to affirm the trial court’s grant of a summary judgment in favor of Attorneys.  The Supreme Court of Texas reversed and held that “there is no legal bar preventing an estate’s personal representative from maintaining a legal malpractice claim on behalf of the estate against the decedent’s estate planners.”  The court did not express an opinion as to whether Attorney’s conduct actually amounted to malpractice.

For additional discussion of this landmark case, see Martha Neil, Texas Opens Door a Crack to Estate Planner Suits, ABA J. e-Report, May 19, 2006.

New Estate Taxation Student Text

The following is from a message I received from the Kendall/Hunt Publishing Company:

Estate Planning and Taxation, Fourteenth Edition, by Professor John Bost awaits your review.  For more information or to qualify for your complimentary copy, visit www.kendallhunt.com/bost and click "request review copy," or call (800) 228-0810.  Hurry, the supply of complimentary copies is limited.

This popular book is back with:

• A concise, integrated overview written as a student-oriented text with numerous questions and problems.
• Quantitative emphasis and over 500 easy to follow examples.
• Completely updated material emphasizes current law, trends and techniques.
• Information needed by CFP7 candidates, students in undergraduate or graduate business schools, law students, and estate planning professionals.

2006 / 0-7575-2606-3

Ethics & Malpractice

The American Bar Association Section of Real Property, Probate and Trust Law, the ABA Center for Professional Responsibility and the ABA Center for Continuing Legal Education is sponsoring a teleconference and live audio webcast CLE program on June 13, 2006 entitled Ethical Issues in Estate Planning and Administration -- Avoiding Ethics Violations and Malpractice.  Here is the description of this program:

This month , the American College of Trust and Estate Counsel released the fourth edition of the ACTEC Commentaries on the Model Rules of Professional Conduct.  The update provides stronger guidance on ethical issues and standards that estate planners and administrators must address to avoid ethics violations and malpractice.  The clarifications and additions included in the revisions illuminate new and evolving ethical issues that all attorneys involved in estate planning and administration should consider in everyday practice.

Join our experts to analyze the revised commentary and learn how the new revisions affect your estate planning practice. Specifically, the panelists will cover:

• How estate lawyers can violate their duty of confidentiality when representing spouses and other family members in estate planning.
• When a client has “diminished capacity” and how to avoid being the lawyer with “diminished skill.”
• How to assist clients in neighboring states without being charged by local lawyers with the unauthorized practice of law.
• How to avoid disqualification in estate litigation when interviewing a prospective client (also known as the “prospective defendant”).
• Why the ABA Model Rule was revised from “consent after consultation” in favor of “informed consent.”

Georgia Enhances Probate Website

The website for the Georgia Probate Courts has recently been enhanced.  Here is an excerpt from their homepage:

Welcome to gaprobate.org, the homepage of Georgia's Probate Courts. On this website you will find information and resources to assist you in matters such as estate planning, acquiring marriage and firearms licenses, guadianships, and contacting your local Probate Court (your best source for information). You will also find the Georgia Probate Court Standard Forms, which are currently available in both Microsoft Word and Corel WordPerfect format

According to HALT e-Journal, May 18. 2006,

Court officials in Georgia responded to HALT’s call to action by making Georgia’s Web site easier to find and navigate and adding two new online publications. The changes improved the state grade from C-minus to B-minus. Georgia's probate Web site now ranks among the top 10 states, with officials continuing to work to improve their online resources.

Special thanks to David Giacalone, editor of the f/k/a . . . one-breath poetry and punditry blog, for bringing this to my attention.

John Wayne's Fighting Kin

John Wayne would not be very proud of the conduct of his kinfolk.  In John Wayne's kin Duke it out, NY Daily News, May 21, 2006, Michelle Caruso reports:

[T]he kids and grandkids of the "Duke" have sued to find out where his trademark lid, leather chaps, boots, saddle, Winchester rifle and other movie mementos have been stashed — and they want them back, according to a lawsuit filed in Los Angeles Superior Court. "This is about preserving the memory of John Wayne. His children are wondering, ‘What happened to Dad's stuff?'" said attorney Steven Krongold, who represents Wayne's five living children and eight grandchildren who control Wayne Enterprises, L.P.

The bombshell suit pits Wayne Enterprises, which was formed by the iconic star shortly before his cancer death in 1979 to promote and protect his name and likeness, against Batjac Productions Inc., Wayne's longtime company, which is now controlled by daughter-in-law Gretchen Wayne.

Gretchen took the Batjac reins in 2003 after the death of her husband, Michael Wayne, the actor's eldest son. Since then, the suit alleges, Batjac has refused to turn over business records and treasured items that the kids and grandkids contend belong to them or to Wayne Enterprises.

Special thanks to Prof. Joel C. Dobris of the University of California -- Davis for pointing out this development.

Top SSRN Downloads

The top downloads from the SSRN Journal of Wills, Trusts, & Estates Law from March 22, 2006 to May 21, 2006 for all papers announced in the last 60 days were as follows:

Rank	Downloads	Paper Title
1	109	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	108	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	48	Taxing Middle Class Trust(s) Pamela Champine, New York Law School, Date posted to database: March 31, 2006 Last Revised: March 31, 2006
4	25	Evaluating the Potential Success of a GRAT Against Competing Strategies to Transfer Wealth Jonathan G. Blattmachr, Diana S.C. Zeydel, Milbank, Tweed, Hadley & McCloy LLP, Greenberg Traurig, LLP, Date posted to database: April 3, 2006 Last Revised: April 3, 2006
5	19	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: May 8, 2006
6	19	The Political Path to Limited Liability in Business Trusts Robert Flannigan, University of Saskatchewan, Date posted to database: April 17, 2006 Last Revised: April 17, 2006
7	16	Forty Years of Codification of Estates and Trusts Law: Lessons for the Next Generation Gregory S. Alexander, Mary Louise Fellows, Cornell Law School, University of Minnesota School of Law, Date posted to database: May 15, 2006 Last Revised: May 15, 2006
8	12	The September 11 Relief Efforts and Surviving Same-Sex Partners: Reflections on Relationships in the Absence of Legal Recognition Nancy J. Knauer, Temple University - Beasley School of Law, Date posted to database: March 10, 2006 Last Revised: March 13, 2006

Death Coaches

For a very interesting article about how various organizations such as Hospice are "coaching" family members of dying individuals on how handle the impending death, see Jane Gross, For the Families of the Dying, Coaching as the Hours Wane, NY Times, May 20, 2006.

Here is an excerpt from the article:

Now those final moments are a focus of new attention as hospices broaden their range of services, inspired by a growing body of research on the very end of life. More are encouraging the calming properties of music, meditation, aromatherapy and massage for both patients and families. Some are increasing the training for so-called 11th-hour companions who families can request be with them.

Holding a dying person's hand may be frightening for a loved one alone at the bedside. Relatives and friends may not know that hearing is the last sense to go, and neglect to soothe the patient with a steady, reassuring murmur. Leaving the room briefly may mean missing the moment of passing and always carrying that regret.