Wills, Trusts & Estates Prof Blog

Top SSRN Downloads

The following are the most popular downloads from August 1, 2006 to September 30, 2006 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	340	Family Limited Partnership Formation: Dueling Dicta Mitchell Gans, Jonathan G. Blattmachr, Hofstra University - School of Law, Milbank, Tweed, Hadley & McCloy LLP, Date posted to database: August 2, 2006 Last Revised: September 12, 2006
2	86	Super-Recognition and the Return-to-Sender Exception: The Federal Income Tax Problems of Liquidating the Family Limited Partnership Samuel A. Donaldson, University of Washington - School of Law, Date posted to database: August 23, 2006 Last Revised: August 23, 2006
3	74	Rights of the Dead Kirsten Rabe Smolensky, University of Arizona - James E. Rogers College of Law, Date posted to database: August 16, 2006 Last Revised: August 16, 2006
4	73	The JEC’s Estate Tax Report: Myths and Legends Neil H. Buchanan, Rutgers School of Law - Newark, Date posted to database: June 8, 2006 Last Revised: June 8, 2006
5	71	Why Shouldn't I be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How I Learned to Stop Worrying and Start Loving the French) Terry L. Turnipseed, Syracuse University College of Law, Date posted to database: June 23, 2006 Last Revised: June 23, 2006
6	56	Valuing Corporations for Estate Tax Purposes: A Blount Reappraisal Adam Chodorow, Arizona State University - College of Law, Date posted to database: August 16, 2006 Last Revised: August 16, 2006
7	48	The Adulteration of Fiduciary Doctrine in Corporate Law Robert Flannigan, University of Saskatchewan, Date posted to database: September 6, 2006 Last Revised: September 6, 2006
8	40	The Collision Between CRTs and the UPC Elective Share Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: June 8, 2006 Last Revised: August 2, 2006
9	35	Defining Life from the Perspective of Death: An Introduction to the Forced Symmetry Approach Kirsten Rabe Smolensky, University of Arizona - James E. Rogers College of Law, Date posted to database: August 18, 2006 Last Revised: August 18, 2006
10	28	Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption Jana B. Singer, University of Maryland - School of Law, Date posted to database: August 10, 2006 Last Revised: August 20, 2006

Texas and the Uniform Trust Code

Kara Blanco, an outstanding student at the Texas Tech University School of Law, has recently published her Comment entitled The Best of Both Worlds: Incorporating Provisions of the Uniform Trust Code into Texas Law, 38 Tex. Tech L. Rev. 1105 (2006).

Here is the conclusion of her article:

The Texas Legislature has hand-picked several UTC provisions to adopt into the Texas Trust Code during the past two legislative sessions. Texas has enacted so many UTC-inspired provisions that the Joint Editorial Board for Uniform Trust and Estate Laws has initiated a study to determine whether Texas should receive the designation of "substantially similar" to the UTC.

In 2003, Texas enacted both the Uniform Prudent Investor Act and the Uniform Principal and Income Act, both promulgated by the NCCUSL and closely related to the UTC. During the 2005 legislative session, Texas adopted several provisions directly from the UTC.  The most significant of these included mandatory trust terms, trustees' duties to beneficiaries, grounds for judicial modification of trusts, and trusts for the benefit of pets. Though some potential problems associated with these new provisions exist, their overall impact on Texas trust law should be a positive one and should pave the way for more UTC adoptions in the future.

Though the UTC and Texas Trust Code are very similar, differences still remain, and other UTC provisions exist that could improve Texas trust law. Texas should consider adopting the more detailed UTC provision outlining specific information that trustees must provide in order to fulfill the obligation to keep qualified beneficiaries reasonably informed. In addition, Texas can increase the efficiency of trust administration and provide maximum value to beneficiaries by adding a default term allowing courts or trustees to terminate trusts if they prove too small in value to justify the administrative costs. As the NCCUSL continues to amend the UTC and respond to debates, Texas will likely benefit from future additions and amendments to the UTC.

One of the primary purposes for creating the UTC was to help states relying on the common law to compile a comprehensive codification of trust law. There was initially no reason for Texas to adopt the UTC in its entirety because Texas had a well-established Texas Trust Code. Although Texas has now adopted numerous beneficial provisions from the UTC, Texas continues to realize benefits from its own well-established and unique Texas Trust Code provisions. Texas has succeeded in obtaining the benefits the UTC offers while avoiding much of the controversy and preserving the tradition of the Texas Trust Code. In essence, Texas has truly achieved the best of both worlds.

Blogging = Lawyer Advertising??

As reported in Stephanie Francis Ward, Blogosphere Aboil -- N.Y. Proposal Would Designate Lawyer Blogs as Advertising, ABA e-Report, Sept. 29, 2006, "computer-accessed communications" such as blogs may be added to the definition of legal advertising which would then be subject to review by the govenment, disclosure requirements, etc.  The proposal may be broadly read to include blogs which may be accessed from a computer in New York, even if the attorney is not practicing or domiciled in New York.

In addition,

[o]ne proposed change would require lawyers to file copies of computer-accessed communications with the attorney disciplinary committee in the appropriate judicial department of the state. The revision also would require lawyers to retain copies of all written advertising, including Web sites and communications that may be accessed by computer, for at least one year,

Here is the link to the full text of the proposal.

Nobel's Will

In Alfred Nobel and the Prize That Almost Didn’t Happen, NY Times, Sept. 26, 2006, Lawrence K. Altman explains that "because of the unsophisticated way Nobel drew up his will," the Nobel Prize almost did not exist.  Nobel's will "was flawed and legally deficient because he lived in many places and never established a legal residence.  Nobel resided for many years in France, made intermittent visits to a home in Sweden and amassed assets in many countries before dying of a stroke at his villa in Italy."

Here a few excerpts from the article:

Bitter members of Nobel’s largely disinherited family fought the will in court. Scorn was heaped on Nobel’s gift, the equivalent of $9.5 million and one of the largest fortunes of his time, by the king of Sweden, Oscar II; newspapers; political leaders; and other Swedes. * * *

Nobel’s earnings came from his 355 patents and factories in many countries. Swedish leaders vehemently opposed dispersing a Swedish fortune to the rest of the world. Among their reasons: it was immoral, particularly at a time when many Swedes were impoverished.

King Oscar II changed his mind after the Nobel Foundation was established in 1900, in part because he thought publicity about the prizes might benefit Sweden.  * * *

Nobel wrote his will in Swedish a year before his death while he lived in Paris, and the portion dealing with the prizes was one long paragraph. It named the groups to make the awards: the Karolinska Institute (medicine), the Swedish Academy of Sciences (chemistry and physics), the Swedish Academy (literature) and the Norwegian Parliament (peace). Later, economics was added as a separate prize. * * *

Swedes were astonished that Nobel prepared his will unaided and without consulting the executors of his estate and the institutions that he entrusted to make the awards. He even left his fortune to a nonexistent foundation that his executors had to create posthumously.

Nobel’s disregard for legal advice in writing his will reflects what he wrote in dealing with a legal matter, according to Mr. Sohlman: “Lawyers have to make a living, and can only do so by inducing people to believe that a straight line is crooked.”

Special thanks to the many readers who brought this article to my attention including  Prof. Joel C. Dobris (University of California-- Davis) and Prof. Robert Mikos (University of California -- Davis).

The 2000 Uniform Parentage Act

Mary Patricia Byrn (Visiting Assistant Professor of Law – University of Minnesota) has recently posted her article entitled From Right to Wrong: A Critique of the 2000 Uniform Parentage Act on SSRN.
   

Here is the abstract:
   

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that sought to treat all children equally by removing the legal distinction between marital and nonmarital children. The 1973 UPA demonstrated the progressive thinking of the Conference and led to similar changes in the parentage laws of every state in the country. In 2000, the Conference promulgated a new Uniform Parentage Act that includes broad provisions for determining parentage of children conceived through assisted reproductive technologies (ART). Unlike the 1973 UPA, however, this Act does not attempt to treat all children equally. Instead, the 2000 UPA leaves thousands of children conceived via ART and born to same-sex couples in the emotionally and financially vulnerable position of having only one legal parent.
   

This article analyzes the scientific advancements, social movements, and Supreme Court precedent that convinced the Conference to recognize both parents of nonmarital children in the 1973 UPA and argues that similar scientific advancements, social movements, and Supreme Court precedent existed in support of recognizing both parents of children conceived through ART and born to same-sex couples in the 2000 UPA. When faced with these arguments in 1973, the Conference made a bold - and ultimately overwhelmingly successful - choice. In 2000, however, the Conference made a short-sighted decision and proffered a model act that fails to address the needs of courts and states facing parentage determinations for these children throughout the country

Notice of Probate?

In MacLand v. Allen Family Trust, (Or. Ct. App. 2006), Plaintiff sued the Allen Family Trust for title to rental property owned by his parents, Jess and Aldura Allen. Jess died in 1989, leaving the property to the plaintiff. Notice was sent to plaintiff about the probate proceeding, but he never responded, claiming later he had never received the notice.

Plaintiff claimed in an affidavit that he had no knowledge of the property until October 2003. In 2001, Aldura purported to transfer the property to herself as trustee of the Allen Family Trust. When Aldura died in shortly thereafter, under the terms of the trust, the property went to plaintiff’s brother Robert, as the residual beneficiary. After learning about the property in 2003, plaintiff sued the Trust.  The Trust argued that the plaintiff should have asserted his claim within the statutory ten-year time frame. However, the court looked to the equitable doctrine of laches in resolving the case:
   

Here, the trial court found that plaintiff had "knowledge of the relevant facts because he was presumptively served with copies of the probate petition." Defendant similarly cites the transfers of the property from Aldura to the trust and from the trust to Ricky as evidence that plaintiff had constructive notice of others' claims to the property. We have held repeatedly, however, that "[c]onstructive notice of the relevant facts is not sufficient to trigger whatever statute of limitation serves as the presumptively reasonable period." *** Instead, "actual notice" is required in the form of "full knowledge of the relevant facts." ***
   

There is evidence in the record indicating that plaintiff had actual notice of a claim to or interest in the property that was adverse to his. [This included an email wherein plaintiff supposedly said he wanted no part of the estate]. ***
   

All of that evidence is contradicted, however, by plaintiff's affidavit, in which he stated that he was unaware of the existence of the property, let alone any adverse claims to it, until October 2003. That contradiction is central to our resolution of this case because it creates a genuine issue of material fact as to when plaintiff first obtained full knowledge of all facts relevant to his claim for ownership of the property. Without knowing when that occurred, we cannot say, as a matter of law, that plaintiff's claim is barred by laches, unless we conclude that plaintiff delayed asserting his claim for an unreasonable amount of time by waiting from October 2003 until March 2004 to file his complaint. We conclude that plaintiff's delay during that period was not unreasonable. Therefore, the trial court erred in granting summary judgment for defendant.

How Much Are You Willing to Pay to Live Longer?

The following article places rising health care costs into perspective and should help reduce complaints about the increases.

See David Leonhardt, The Choice: A Longer Life or More Stuff, NY Times, Sept. 27, 2006:

The average cost of a family insurance plan that Americans get through their jobs has risen another 7.7 percent this year, to $11,500 * * *

In 1950, the country spent less than $100 a year — or $500 in today’s dollars — on the average person’s medical care, compared with almost $6,000 now * * *

Most families in the 1950’s paid their medical bills with ease, but they also didn’t expect much in return. After a century of basic health improvements like indoor plumbing and penicillin, many experts thought that human beings were approaching the limits of longevity. * * *

But then doctors figured out that high blood pressure and high cholesterol caused heart attacks, and they developed new treatments. Oncologists learned how to attack leukemia, enabling most children who receive a diagnosis of it today to triumph over a disease that was almost inevitably fatal a half-century ago. In the last few years, orphan drugs that combat rare diseases and medical devices like the implantable defibrillator have extended lives. * * *

Instead, a baby born in the United States this year will live to age 78 on average, a decade longer than the average baby born in 1950. People who have already made it to their 40’s can now expect to reach age 80. These gains are probably bigger than the ones the British experienced in the entire millennium leading up to 1800. If you think about this as the return on the investments in medicine, the payoff has been fabulous: Would you prefer spending an extra $5,500 on health care every year — or losing 10 years off your lifespan? * * *

There is no question that the American medical system does suffer from a lot of waste, be it insurance industry bureaucracy or expensive procedures that haven’t been proven effective. * * *

But far too much of the discussion has been centered on this narrow idea. Somehow, going to the mall to buy clothes has come to be seen as a vaguely patriotic way to keep the economy humming, and taking out a risky mortgage is considered to be an investment in one’s future. But medical care? That’s just a cost.

High-Tech Methods Used to Detect Elder Abuse

Working like the CSI investigators in the popular TV series, advocates for elderly individuals are beginning to use sophisticated techniques to detect abuse.

The following excerpts are from Forensic Skills Seek to Uncover Elder Abuse, NY Times, Sept. 27, 2006:

public health and law enforcement officials are learning to speak the same language and using the same forensic techniques as those popularized on the three C.S.I. television series to diagnose elder abuse and neglect. For decades, the techniques have been the state-of-the-art approach for investigating child abuse and domestic violence. But elder abuse has lagged far behind, suffering from a lack of financing, research and data.

Now change is in the air, and forensic techniques are just one of many new initiatives nationwide to protect the elderly. Geriatricians at the Baylor College of Medicine in Houston, for example, review county autopsy reports looking for suspicious themes. Bank tellers at Wachovia branches nationwide are learning to detect irregular transactions in the accounts of elderly customers.

Congress is also expected to consider, before the October recess, the Elder Justice Act of 2006, which would create the first nationwide database on elder abuse, replacing inconsistent or unavailable data. The legislation, which has bipartisan support, also assigns a federal official to coordinate projects and technical assistance and helps replicate programs like Orange County’s.

The article also reviews the Brooke Astor case discussed earlier on this blog.

Special thanks to Kent Schenkel (Associate Professor, New England School of Law) for bringing this article to my attention.

Battlefield Doctors and Living Wills

Should battlefield doctors know whether an injured soldier has executed a living will?  That is the issue being debated at a symposium sponsored by the Army's Wounded Warrior Program.

The following excerpts are from Gregg Zoroya, Army explores issue of living wills as more return from war in comas:

With technology as good as it is, they can keep that soldier alive, but they can't put their hands on a digitized piece of paper" containing a do-not-resuscitate order, says Ed Salau, a former Army lieutenant who lost his left leg during combat in Iraq. * * *

Troops can fill out living wills instructing doctors to withhold care. Those at the symposium recommended that troops be better educated about the process and that the wills be accessible to doctors.

Today, field surgeons unaware of last wishes say they often keep soldiers with crippling brain injuries alive and fly them to the USA. That allows families a chance to get closure and to make decisions about organ donation, says Brett Schlifka, an Army neurosurgeon. It also might leave relatives to decide whether to withhold life support.

Not every family member favors a move toward living wills. Sarah Wade, whose husband, Ted, suffered a major head injury from a roadside blast in Iraq in 2004, says she has mixed feelings. If her husband had a living will, he might have directed doctors not to take the steps that saved his life, she says.

See also Gregg Zoroya, Families bear catastrophic war wounds, USA Today, Sept. 25, 2006, at 8A:

One recommendation from the symposium was for the military to more aggressively urge soldiers to fill out living wills containing directives about whether medical treatment should be withheld in the event of a dire brain injury.

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this development to my attention.

Intestacy Calculators

Pennsylvania lawyer Kurt R Nilson is developing interactive programs on his website which may be used to calculate intestate distributions of property.  You may find it interesting to experiment with a calculator from your state and see whether it correctly determines the correct heirs and their shares of the estate.

Below are links to the states that Mr. Nilson already has on-line.  If you have any questions, comments, or suggestions, you may contact Mr. Nilson directly or leave a comment on his site -- he is very receptive to suggestions to improve his calculators.

	Alaska		Georgia		New York
	Arizona		Illinois		Ohio
	California		Maryland		Virginia
	Connecticut		Michigan		Washington
	Florida		New Jersey