Wills, Trusts & Estates Prof Blog

Effect of Estate Tax Repeal in Italy

A recent Italian survey looked at the effect the repeal of the estate tax in Italy.  The survey reveals that without an estate tax, real estate transfers between generations have increased by about 2%. A report on the survey concludes that "since in Italy the ratio of real estate assets to total wealth exceeds 85% for [people over 60], it is likely that at least part of the increase in the propensity to bequeath real estates is a genuine effect" of the estate tax repeal in the country.  Tullio Jappelli, Mario Padula & Giovanni Pica, Estate taxation and intergenerational transfers, vox, Feb. 26, 2010.

Special thanks to Hani Sarji (LL.M. in Tax candidate at New York Law School) for bringing this to my attention.

Top SSRN Downloads

Here are the top downloads from December 30, 2009 to February 28, 2010 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	213	Law Review Articles You Should've Read (But Probably Didn't) in 2009 Bridget J. Crawford, Pace University School of Law, Date posted to database: January 25, 2010 Last Revised: January 25, 2010
2	193	The Core Nature of Fiduciary Accountability Robert Flannigan, University of Saskatchewan, Date posted to database: December 15, 2009 Last Revised: December 29, 2009
3	191	Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following a Divorce or a Marital Separation? Albert Feuer, Law Offices of Albert Feuer, Date posted to database: January 14, 2010 Last Revised: February 7, 2010
4	171	Estate and Gift Tax Problems of Principals and Agents Under Durable Powers of Attorney Paul L. Caron, University of Cincinnati - College of Law, Date posted to database: January 31, 2010 Last Revised: January 31, 2010
5	143	Pets Trusts: Fido with a Fortune? Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: December 6, 2009 Last Revised: December 6, 2009
6	108	Elder Law Teaching and Scholarship: An Empirical Analysis of an Evolving Field Nina A. Kohn, Edward D. Spurgeon, Syracuse University - College of Law, University of Utah, Date posted to database: February 5, 2010 Last Revised: February 8, 2010
7	103	Check-the-Box Regs and Gift Tax Discounts Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: February 17, 2010 Last Revised: February 26, 2010
8	92	Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight Nancy A. McLaughlin, W. William Weeks, University of Utah S.J. Quinney College of Law, Indiana University Bloomington - Maurer School of Law, Date posted to database: January 27, 2010 Last Revised: January 27, 2010
9	86	Burn the Rembrandt? Trust Law's Limits on the Settlor's Power to Direct Investments John H. Langbein, Yale University - Law School, Date posted to database: January 26, 2010 Last Revised: February 18, 2010
10	58	It is Logic Rather than Whom You Trust: A Rejoinder to Prof. Cohen Douglas A. Kahn, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: January 21, 2010 Last Revised: February 9, 2010

Checklist for Reviewing Wills in 2010

The February 2010 edition of The Estate Analyst is comprised of an article by Robert L. Moshman (attorney and writer) entitled Emergency Will Repairs at Ground Zero--Estate Planning for 2010. The introduction to the article and the January 2010 edition of The Estate Analyst is below:

Estates now face a bona fide catastrophe. We’ve arrived at ground zero for the estate tax, and many estate plans were not designed for a world without any Federal estate tax.

Many wills need to be addressed immediately. Even a classic “credit shelter” or “A-B” plan could blow up under the current situation. Language from virtually every type of arrangement needs to be examined for each of the possible scenarios that could unfold.

Let’s sort it all out and build a checklist of ideas, protections and remedies that people can incorporate into their estate plans right now.

The end of the article contains a useful ten-step will review checklist for 2010.

Poll Indicates that Estate Planning is on the Decline in the United States

According to a surveys by Lawyers.com, the number of Americans with some type of estate planning document dropped from 64% in 2007 to 51% in 2009.  Of this 51% surveyed, only 35% reported that they have a will.

The following, taken from Lawyers.com, Lawyers.com Survey Reveals Drop in Estate Planning, Feb. 25, 2010, indicates that the percentage decline fro, 2007 to 2009 is due in part to poor economic conditions:

• Seven in ten Americans (71 percent) believe that given today’s economy, it is more important to focus on saving money for immediate needs than long-term planning of their estate. 
• Nearly three-quarters of Americans (73 percent) agree that the current economic downturn has made it even more difficult for them to plan for their future. 
• For Americans who do not have any estate planning documents, 44 percent cite a greater focus on the "essentials" (e.g. paying bills, buying groceries, etc.) as the reason, 31 percent cite it's not a top of mind concern right now, 11 percent don't believe it is necessary and 9 percent believe it takes too much time to create one. 
• One in five Americans (20 percent) that do not have estate planning documents report that this is because they believe their spouse and/or children will automatically receive any assets, and 19 percent feel it is too expensive.

Special thanks to  Hani Sarji (LL.M. in Tax candidate at New York Law School) for bringing this to my attention.

New Kentucky Estate Planning Blog to Follow

Those practicing, teaching, or living in Kentucky should enjoy following KYEstate$, a blog for the Kentucky trusts & estates community.  This blog was created by Carter Ruml (attorney, Louisville) "to share and discuss tax and non-tax developments of interest to the estate planning, estate administration, fiduciary, and wealth management community in Kentucky."

Florida International University College of Law Seeks Visiting Professor

Florida International University College of Law invites applications from candidates for one or more visiting faculty positions beginning in Fall 2010. Areas of curricular preference include PROPERTY, CRIMINAL LAW, TORTS, ENVIRONMENTAL LAW, and TRUSTS AND ESTATES. Visits could be for either the fall or spring semester or for the full year.

ABOUT FIU COLLEGE OF LAW:

Part of Miami's public research university, the College of Law is a dynamic urban law school with approximately 600 students. FIU College of Law was established in 2000, enrolled its first class in 2002, and currently has 30 full-time faculty members. In the spring of 2007, the FIU College of Law moved into a new state-of-the-art building at the heart of the main university campus. Over the past two years, our FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum.

The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.

APPLICATION PROCEDURE:

Applicants should have a J.D. degree; applicants with additional advanced degrees are also encouraged to apply. Applicants must possess a strong commitment to teaching and a record or the promise of outstanding scholarship. Applicants interested in joining the FIU College of Law faculty as a visiting faculty member should send a cover letter expressing interest and a resume as soon as possible to:

Associate Dean Joelle Moreno
Chair - Faculty Appointments Committee
Florida International University College of Law
11200 S.W. 8th Street
Miami, FL 33199

You may also send application materials electronically to [email protected].

FURTHER INFORMATION:

For more information, please visit the school's website at http://www.law.fiu.edu.

Florida International University encourages applications from candidates who would continue to enhance the diversity of our College of Law faculty and university community and does not discriminate on the basis of race, color, national origin, ancestry, sex, disability, religion, age, sexual orientation or veteran status in its education and employment programs or activities. FIU is also a member of the State University System and an Equal Opportunity, Equal Access, Affirmative Action Employer.

Taxing Family Foundations to Lower Future Estate Tax Levels?

Undisclosed sources have indicated that Senators Kyl (R-Ariz.) and Lincoln (D-Ark.) are considering a "toll charge" on family foundations to pay for reinstating the estate tax in 2011 at levels lower than those in place in 2009.  

See Jay Heflin, Bill Gates, other super rich may pay price for estate tax fix, The Hill, Feb. 2, 2010.

Special thanks to Stan Foster (attorney, Seattle) for bringing this to my attention.

Yale University: Finding New Purposes for Old Gifts in the Face of Budget Shortfalls

In the face of a $300 million budget shortfall, a team of staff and administrators at Yale spent the summer combing the university's endowment funds for gifts to the university that could be put to better use. 

The following excerpt from the Yale Daily News explains how Yale can "repurpose" a gift.  

In most cases, . . . repurposing is just a matter of convincing chairs and directors to shift costs away from the general operating budget and into their gifts . . . . When gifts are more specific, development officials search archives for the original donor agreements to see if the language allows for broader use, Vice President for Development Inge Reichenbach said.

If the language does not permit a more flexible interpretation, . . . department administrators and development officials may even ask the donor or the donor’s heirs for permission to use the money for purposes close to the original. This happens only rarely, or in under 10 percent of cases . . . .

When no donor is living, Reichenbach said, administrators may present their case to Connecticut’s attorney general. As long as they can show a donor’s original intention is no longer viable despite Yale’s best efforts, the attorney general typically grants such requests, she said.

The team discovered hundreds of gifts given for a specific purpose that had not been put to use for years, resulting in an accumulation of thousands of dollars in some cases.  Some of these gifts have become obsolete.  

Yale has encountered problems with repurposing gifts in the past.  Without properly repurposing gifts, however, Yale's $16 billion endowment fund cannot be used to meet current budget needs. The Yale Daily News concludes with the following on the matter:

If there’s anything Yale has learned from trying to use money from the numerous restricted funds in its endowment, it is that donors must be encouraged to give Yale flexibility in using their gifts, Reichenbach said. Not only will broader agreements with donors allow Yale to overcome its budget troubles, but they will also prevent gifts from becoming irrelevant.

See Vivian Yee, University combs gifts for new uses, Yale Daily News, Feb. 4, 2010.

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

Montana Becomes the Third State to Allow Physician Aid in Dying

The following is taken from Kristine S. Knaplund, Montana Becomes Third U.S. State To Allow Physician Aid In Dying, which was written for the February 2010 RPTE eReport, an electronic report issued by the ABA Section of Real Property, Trusts & Estates:

On December 31, 2009, the Montana Supreme Court issued its decision in Baxter v. State of Montana, 2009 MT 449, regarding physician aid in dying (PAD). While the lower court had found a state constitutional right for such aid, a majority of the Supreme Court expressly declined to reach the constitutional issue. Rather, the majority found that the consent of a terminally ill, competent adult to lethal medication would protect the physician from liability for homicide. Montana joins Oregon and Washington in legalizing PAD, but is the only state to do so by judicial decision.

According to Knaplund, the Montana decision leaves unanswered questions about the use of physician assistance in dying, such as whether residents of other states could travel to Montana to receive physician aid in dying, whether the death resulting of the aid would be deemed a suicide, and whether a physician may aid a person who is incapable of administering the medicine.  

For more information on the Montana Supreme Court decision, see Kristine S. Knaplund, Montana Becomes Third U.S. State To Allow Physician Aid In Dying, RPTE eReport (Feb. 2010).

University of Notre Dame seeks Program Director of Tax & Estate Planning Institute

The University of Notre Dame invites applications for a Program Director to organize and implement all aspects of the annual Notre Dame Tax & Estate Planning Institute. This Institute, which is a nationally-recognized event in its field, has been offered by Notre Dame in South Bend for 35 years, and attracts between 800 to 1000 sophisticated attorneys, trust officers, accountants, and other estate planning professionals from across the country to a two-day event held in the fall. The Program Director will be responsible for creating a program addressing cutting-edge issues in the tax and estate planning field, securing nationally-recognized speakers for the event, and implementing all logistical details. The position is a one-year limited-term position, but may become a permanent position upon the demonstrated success of the Institute under the Program Director's leadership.

Specific duties include the following:

• Attend other national estate planning institutes, and meet with past organizers of the Notre Dame Institute as well as faculty of the Law School and of past institutes.
• Be sufficiently acquainted with the cutting-edge issues in the field of tax & estate planning to devise an outstanding program of great interest to practitioners.
• Secure nationally-recognized panelists and speakers for the program through existing or recently cultivated relationships either on one's own or through the support of an advisory board.
• Attend to all logistical details in organizing this two-day event, including communications and site preparation.

MINIMUM QUALIFICATIONS:

The Program Director should have a J.D. or other advanced degree and preferably 2 - 4 years in tax and estate planning experience. The Program Director should also have some event planning experience, such as planning and executing continuing education programs or conferences. Experience managing advisory boards is also desirable. The Director must have good project management skills and also strong interpersonal and communications skills, which will be essential to building interest in and loyalty among the speakers, many of whom have been long-time participants in past institutes.

APPLICATION PROCESS:

Please apply online at http://ND.jobs to Job #10073. For additional information about working at the University of Notre Dame and various benefits available to employees, please visit http://hr.nd.edu/why-nd.

The University of Notre Dame is committed to diversity in its staff, faculty, and student body. As such, we strongly encourage applications from members of minority groups, women, veterans, individuals with disabilities, and others who will enhance our community. The University of Notre Dame, an international Catholic research university, is an equal opportunity employer.