Wills, Trusts & Estates Prof Blog

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

Thursday, September 27, 2007

Advice on Getting Published

Leah M. Christensen (Assistant Professor, University of St. Thomas School of Law) and Julie A. Oseid (Assistant Professor, University of St. Thomas School of Law) have recently posted their article on SSRN entitled Navigating the Law Review Article Selection Process: An Empirical Study of Those With All the Power - Student Editors.

Here is an abstract of their article:

Anyone who enters the legal academy knows the pressure for new law professors to publish or perish. The use of student editors as the "gatekeepers" of legal scholarship is a distinctive feature of the legal academy. Yet, even with student editors holding the keys to academic success, few empirical studies have explored what factors student editors consider most important when making article selection decisions. The study reported in this Article attempts to shed light on this process and provide suggestions for new law professors as they navigate the law review article submission process. The present study examines how law review editors at all levels of the law school "tier" system (e.g., Top 15, Top 25, Top 50, Top 100, Third Tier, Fourth Tier and Specialty Journals) weigh the importance of author credentials, topic, format, and timing of an article submission in making their selection decisions. Although most editors consider each of these factors, the data also suggests that the higher-ranked journals rely more heavily on author credentials than lower-ranked journals. Editors at higher-tiered law schools were highly influenced by where an author has previously published. Further, while not a single editor at a Top 15 school considered an author's practice experience in making a publication decision, a majority of the editors at lower-tiered journals rated practice experience as an important factor in article selection. In addition, the study participants almost unanimously agreed that they were influenced by the topic of an article yet there were important differences among the law schools concerning the actual topics about which they would be most or least likely to publish. In addition to describing the survey results in more detail, this article will offer specific commentary from the student editors about their process of selecting law review articles.

September 27, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Great or Grand – Is There a Right Answer?

Great_grandWhat do you call your grandparents’ siblings? Are they your "grand" or "great" aunts and uncles?  While there seems to be no general consensus on this issue, several sources indicate that today using either of these terms is correct.

According to http://www.bicknell.net/books/pc1981/p_family.htm, for example, while "grand" is still the proper way to refer to one’s grandparents' siblings, over the years this term has been replaced with a more general "great" and now both terms can be used in the same manner. See also http://en.wikipedia.org/wiki/Family. The Minnesota Genealogical Society also lists these terms interchangeably on its consanguinity chart at http://mngs.org/tools.shtml.  Meanwhile, other sources, such as http://www.genealogy.com/askr031303.html maintain that "grand" is the only correct way to refer to one’s grandparents’ siblings.

September 27, 2007 in Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 26, 2007

"Money for Nothing" Published

Money_for_nothingEdward Ugel has recently published his book entitled Money for NothingThis book describes a topic often discussed on this blog of how lottery winners are unable to cope with their new found wealth.

Here is an excerpt from the author's description of his book:

* * * Edward Ugel tells the story of America’s addiction to the lottery from an astonishing angle.

At age twenty-six, Ed found himself broke, knee-deep in debt, and moving back into his parents’ basement. It all changed, however, when he serendipitously landed a job as a salesman for a company that offered up-front cash to lottery winners in exchange for their prize money, often paid in agonizingly small annual payments, some lasting up to twenty-five years. For the better part of the ensuing decade, Ed spent his time closing deals with lottery winners, making a lucrative and legitimate—if sometimes not-so-nice—living by playing to their weaknesses…weaknesses he knew all too well.

Ed met hundreds of lottery winners and saw up-close the often hilarious, sometime sad outcome when great wealth is dropped on ordinary people. Once lottery winners realized their “dream-come-true” multimillion jackpots were not all that they were cracked up to be, Ed's job was to sell them the cash they wanted—and often needed. * * * As Ed learned, few of them had the financial savvy to keep up with the lottery-winner lifestyle. In fact, some just wanted their old lives back. * * *

Ed Ugel takes readers inside the captivating world of lottery winners and shows us how lotteries and gambling have become deeply inscribed in every aspect of American life shaping our image of success and good fortune.

September 26, 2007 in Books - For the Classroom | Permalink | Comments (0) | TrackBack (0)

Texas Permits Marriages to be Voided Even After Death

BrainThe 2007 Texas Legislature added Probate Code § 47A to authorize a court, under certain circumstances, to deem a decedent’s current marriage void for lack of mental capacity even after the decedent has diedActs 2007, 80th Leg., ch. 1170, § 4.01.  This section was designed to “undo” marriages entered into due to the actions of conniving and/or abusive caregivers.

1.  Types of Voidable Marriages

a.   Proceeding pending at time of death

If a Family Code proceeding to void a marriage based on lack of mental capacity is pending at the time of death (or if the court has been asked to do so in a pending guardianship proceeding), the court may declare the marriage void despite the death of the decedent.  The court must apply the same standards as for an annulment under the Family Code.

b.  Proceeding not pending at time of death

If a proceeding to void a marriage based on lack of mental capacity is not pending at the time of death, the court may nonetheless deem the marriage void under the following circumstances:

  • The decedent entered into the marriage within three years of the decedent’s death.
  • An interested person files an application to void the marriage on the basis of lack of mental capacity within one year of the decedent’s death.
  • The court finds that the decedent lacked the mental capacity to consent to the marriage and understand the nature of any marriage ceremony that might have occurred.
  • The court does not determine that after the date of the marriage, the decedent gained the mental capacity to recognize the marriage relationship and actually recognized the relationship.

2.  Result if Marriage Deemed Void

The surviving partner of the void marriage is not considered as the decedent’s surviving spouse for any purpose under Texas law.  For example, the surviving partner would not be able to receive an intestate share of the estate or claim homestead rights.

September 26, 2007 in Estate Planning - Generally, New Legislation | Permalink | Comments (1) | TrackBack (0)

Testamentary Capacity vs. Capacity to Marry

CrawfordBridget Crawford (Professor of Law, Pace Law School) has recently posted her thoughts on the differences between the capacity to execute a will and the capacity to marry.  See Marriage of Fools, Feminist Law Professors Blog, Sept. 26, 2007.

Here is an excerpt from her posting:

Fools can marry, but they cannot make a last will and testament.  To state the principle more precisely, the mental capacity required to enter into a legally binding marriage is lower than the mental capacity required to execute a valid will.  A frequently-cited case on point is Hoffman v. Kohns, 385 So. 2d 1064 (Fla. App. 1980). * * *

In my view, the law is incorrect in concluding that the mental capacity needed to marry is lower than that needed to make a will.  The decision to marry is, without question, intensely personal, but its personal nature should not in any way diminish the threshhold showing of mental capacity that must be made.  Marriage is a decision with significant legal consequences, especially with respect to property.  Among the legal consequences  of marriage is the creation of a surviving spouse’s right to an elective share of the decedent’s estate.

September 26, 2007 in Wills | Permalink | Comments (0) | TrackBack (0)

Donor’s Charitable Intent and Its Enforceability in Court

BrodyEvelyn Brody (Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology) has recently published her article entitled From the Dead Hand to the Living Dead: The Conundrum of Charitable-Donor Standing, 41 Ga. L. Rev. 1183 (2007).

Here is an excerpt from the introduction to her article:

For hundreds of years, scholars and practitioners have debated the central position of donor intent in Anglo-American law the right of the "dead hand" to govern from the grave the use of a charitable donation into the indefinite future, even into perpetuity. The topic of this Article is not, however, that normative position, but rather the seemingly more mundane question of whether the donor can enforce his or her intent in court. As Professor Rob Atkinson cautions: "Standing questions are ‘who’ rather than ‘what’ questions. . . . Technically speaking, [a denial of standing] is merely a determination that the claim, however meritorious, should be asserted by someone else." Consider the following four scenarios:

Case 1: D gives $100,000 to C University to establish a fund to support library operations.

Case 2: D gives $100,000 to C University to establish a fund to support library operations. C agrees that D may bring suit to specifically enforce the restricted gift.

Case 3: D gives $100,000 to C University to establish a fund to support library operations. C agrees that D and D's descendants may bring suit to specifically enforce the restricted gift.

Case 4: D gives $100,000 to C University to establish a fund to support library operations, but that if C University does not carry out the purposes of the gift, the gift shifts to H University.

This Article considers whether these four cases provide D with the same rights to enforce the charity's performance of the gift, and, if not, whether they should be the same.

September 26, 2007 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2007

India and Intestate Succession

IndiaSiddhartha Shukla (National Law University, Jodhpur) has recently posted on SSRN an article entitled International Perspective on Intestacy Practices: Lessons for India.

Here is an abstract of the article:

The intestacy practices in India can be dated back to the ancient historic era and has evolved substantially over the centuries. Ironically, the present day law on the subject is countered with plethora of lacunae when compared with the scenario at the international arena. Whereas, the intestacy practices in India may be broadly divided in three phases on the basis of rights and obligations of coparceners, it is pertinent to note that flaws in each phase are evident. A comparison of the intestacy practices in New Zealand, Australia, U.S.A. and U.K. vis-a-vis India, surfaces plenty of ambiguous issues in the Indian law. Albeit the intestacy practices in the U.K. and the U.S.A. are very similar to those prevalent in India, their implementation creates a departure between the two leaving behind the India law.

The research paper aims to suggest changes in the Indian intestacy law and practices, which is based on the intestacy model prevalent in the U.K., U.S.A, New Zealand and Australia.  Perhaps, the critiques may connote such a comparison flawed per se, the reason for such a comparison is to develop intestacy practice more comprehensive and error free. It is further suggested that the extension of jurisdiction of Family Courts in India to include family matters. Besides, entrusting greater judicial discretion to the aforesaid courts would enhance their efficiency and avoid procedural complexities.

September 25, 2007 in Articles, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

401(k) CLE

NccThe National Constitution Center is sponsoring a 60-minute audio conference on October 3, 2007 entitled Dramatic 401K and Defined Benefit Plan Changes: Are you ready?

Here is a description of the program:

Do you know what you need to do today to ensure that your plans are compliant? Are you prepared for your 2007 and 2008 deadlines? Last year, Congress passed the most comprehensive legislation impacting retirement plans in thirty years -- the Pension Protection Act. Join us for a 60-minute audio conference where you will discover:

  • New accelerated vesting rules for employer contributions to 401(k) plans
  • Required retirement plan amendments for 2007 and beyond
  • How the new law impacts your finances
  • Tips for avoiding fiduciary responsibility for default investment funds

September 25, 2007 in Conferences & CLE, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Life Insurance CLE

Aba_cle

The American Bar Association Section of Real Property, Trust and Estate Law and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on October 2, 2007 entitled Effective Use of Life Insurance in Estate Planning.

Here is a description of the program:

Life insurance is an important part of many clients’ estate plan. Its uses include providing liquidity to pay estate taxes, final expenses, and the cost of administration; equalizing the value received by heirs; and providing cash for the purchase of a business interest as part of a buy-sell arrangement.

With the continuing uncertainy in federal estate tax laws, clients want flexibility in their estate plans. Life insurance in conjunction with carefully drafted life insurance trusts can help provide that flexibility.

With proper planning, life insurance death benefits can be received without being subject to either federal estate tax or income tax. Mistakes can cause unexpected income tax, gift tax, or estate tax liabilities.

Life insurance policy features are constantly evolving. A familiarity with the types and features of policies available is crucial to help your clients select the right product to accomplish their objectives.

Attend this program to learn:

    • Tips and techniques for using life insurance and life insurance trusts to provide flexibility in estate planning
    • Some life insurance tax traps to avoid
    • New rules for employer-owned life insurance
    • Recent life insurance product developments and how to examine insurance policy features

September 25, 2007 in Conferences & CLE, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Former Ramone Drummer Sues for Royalties

RamoneRichard "Richie Ramone" Reinhardt, a former member of the punk band Ramones, is suing several major corporations, the band's management, and the estate of the band’s lead guitarist to recover royalties on songs sold over the Internet. Reinhardt claims he is owed at least $900,000 in royalties because he never authorized digital sale of the six songs he wrote for the band. Reinhardt has asked the court to issue an injunction prohibiting further use of his songs without permission.

The Ramones formed their band in 1974 and performed until 1996. They are known as one of the best punk bands of all time. Three of the group’s leading members Johnny, Joey, and Dee Dee died in recent years. Reinhardt became the Ramones’ drummer in the 1980s and performed during the group’s most illustrious years. However, according to Reinhardt’s attorney, he never received due recognition creatively or economically. The settlement attempts between Reinhardt and the other side have failed and the case will be going to trial.

See AP, Former Ramone Sues Over Song Downloads, MSN.com, Sept. 21, 2007.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

September 25, 2007 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)