Wills, Trusts & Estates Prof Blog

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

Tuesday, January 21, 2020

Article on Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?

MarriageIryna Dikovska recently published an Article entitled, Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?, Wills, Trusts, & Estates Law e Journal (2019). Provided below is an abstract of the Article.

Due to the fact that matrimonial property and inheritance issues are closely intertwined, in some situations the determination of rules which should be applicable to particular relationships seems problematic. This fully applies to marriage contracts which cover both types of issues. The presence of a cross-border element in such contracts raises the question of the delineation of the legal regimes of the Matrimonial Property Regulation and the Succession Regulation applicable to matrimonial property and succession issues respectively. This paper analyses the rules which should be applicable to choice-of-court agreements for matters arising out of marriage contracts which cover both matrimonial property and inheritance issues and include a cross-border element. For this reason, the paper reveals the interaction between the regimes of the Matrimonial Property Regulation and the Succession Regulation, and the requirements of choice-of-court agreements under both regulations. Some of the requirements of these regulations of choice-of-court agreements coincide (eg formal requirements), while others differ. The main differences include: the precondition for the conclusion of a choice-of-court agreement under the Succession Regulation, which is not required under the Matrimonial Property Regulation; the courts which may be chosen; and the circle of matters which can be resolved by the courts on the basis of the choice-of-court agreement. It is concluded that a choice-of-court agreement, included in the marriage contract, can meet the requirements of both the Succession Regulation and the Matrimonial Property Regulation if: the dispositions upon the death of a spouse, included in the marriage contract, are an ‘agreement as to succession’ in the meaning of Article 3(1)(b) of the Succession Regulation; the marriage contract includes a choice-of-law agreement in favour of the law of the Member State whose nationality a deceased spouse possessed when the choice-of-law agreement was concluded; this choice of law agreement covers the succession of the deceased spouse ‘as a whole’; the choice-of-court agreement grants jurisdiction to the courts of the Member State whose nationality a deceased spouse possessed at the time of the conclusion of the choice-of-law agreement; it provides the jurisdiction of ‘the courts’ of a Member State (not ‘a court’).

January 21, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (0)

Monday, January 20, 2020

Article on Crummey Powers: Still a Powerful Estate Planning Tool

CrummeyRobert J. Adler recently published an Article entitled, Crummey Powers: Still a Powerful Estate Planning Tool, Probate & Property Magazine, Vol. 34 No. 1 (Jan/Feb 2020). Provided below is the introduction to the Article.

In the usual case, an unfunded irrevocable life insurance trust will rely on gifts from the trust grantor to provide funds necessary to pay future premiums. These gifts are subject to the gift tax. IRC § 2503(b) provides for a gift tax annual exclusion of up to $15,000 (as indexed through 2019) per donee per year for gifts of present interests. Gifts of a future interest do not qualify for the annual exclusion. Consequently, gratuitous transfers in trust of cash to pay life insurance premiums would ordinarily be future interest gifts for which no annually excludable amount is available.

January 20, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, January 17, 2020

Article on Discretionary Dilemma: Trustee Consideration of Beneficiary Financial Resources

Trusts2Jacob L. Geierman recently published an Article entitled, Article on Discretionary Dilemma: Trustee Consideration of Beneficiary Financial Resources, Probate & Property Magazine, Vol. 34 No. 1 (Jan/Feb 2020). Provided below is the introduction to the Article.

Trust instruments often provide trustees with discretion to distribute trust assets to or for the benefit of the beneficiaries. By their nature, discretionary trusts often create difficulties in ongoing administration. One common, but often overlooked, difficulty is administrating discretionary trusts is determining whether and how the trustee should consider beneficiary financial resources when making discretionary distributions.

January 17, 2020 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Tuesday, January 14, 2020

Article on Victoria Meets Confucius in Singapore: Implied Trusts of Residential Property

ConfuciusKelvin F.K. Low recently published an Article entitled, Victoria Meets Confucius in Singapore: Implied Trusts of Residential Property, Wills, Trusts & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Co-ownership of residential property is commonplace in Singapore. This is the result both of necessity (as private property is expensive) and incentives (generous subsidies are made available to family units purchasing public property). Yet the rules on implied trusts (both resulting and constructive) governing such ownership have resisted developments seen in other common law jurisdictions such as England and Australia or even Hong Kong. This has led to criticisms that the rules perpetrate gender inequality. This may strike observers as odd given the progressive views on gender of the Singapore government, as can be seen in in its enactment of the Women’s Charter as early as in 1961. It is less odd, however, when viewed from the conservative Confucian perspective of the family as the basic unit of society. The cases therefore demonstrate not so much an objective of marginalising women but of preserving the especial place of the family, conceived of as a man and a woman in a formal State-recognised marriage, values conveniently found in some of the Victorian laws inherited by Singapore as a former British colony. Developments in trust law that threaten the hallowed status of the formally State-recognised family unit are viewed by the courts with suspicion and trepidation. This paper considers if this apprehension continues to be viable in the face of a changing society.

January 14, 2020 in Articles, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Monday, January 13, 2020

Article on Testate Succession Under Ukrainian Law

UkraineIryna Dikovska recently published an Article entitled, Testate Succession Under Ukrainian Law, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

The article analyses the legal aspects of the development of testate succession in Ukraine. In particular, it focuses on the notion of the will, the capacity of its making, special types of wills and their form. The content of wills is being viewed through the principal of testamentary freedom. The article offers the solution of such controversial issues of Ukrainian succession law as the legal nature and content of joint wills, the consequences of the death of one of the spouses, as well as the nullity or dissolution of marriage for joint wills, the requirements to the conditions in conditional wills. It critically examines the order of recording of wills. The article reveals the legal nature of the relationships caused by the legacy. It compares the legacy with other special testamentary dispositions. The article compares certain solutions of Ukrainian succession law with the legal rules of some other countries.

January 13, 2020 in Articles, Current Affairs, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, January 11, 2020

Article on Resolving the Status of the Bare Trust

TrustsRobert Flannigan recently published an Article entitled, Resolving the Status of the Bare Trust, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

A number of diverse arrangements commonly are described as “bare trusts.” Trustees are said to be bare trustees where, for example, they have no active duties, they are controlled by settlors or beneficiaries, or their trustee status is imposed on them for arrangements they create, actions they take or wrongs they commit. The question that arises is whether the bare trust designation describes a distinct legal form. Do these arrangements constitute a class of trust that is regulated in ways that other trusts are not, or is the bare trust designation no more than a convenient descriptor for a functional difference that has no substantive legal significance? I shall explain that bare trusts do not differ in kind from other trusts. They simply are trusts that have a narrow function. The function of the trustee is, or becomes, merely to hold legal title to the trust assets, whatever other relations or obligations might be involved ex ante or concurrently. I shall explain that bare trustees, to the extent of their trustee capacity, are not subject to unique rules. I will illustrate that primarily by refuting the assertion that bare trustees are not status fiduciaries. I will coincidentally refute the assertion that a controlled bare trustee is a novel amalgamation of trust and agency status.

January 11, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Thursday, January 9, 2020

Article on What are the Comparative Legal, Procedural and Substantive Consequences in Private International Law that Affects, the Doctrine of Renvoi and European Union Member States, Under the Brussels IV Regulation (650/2012) and her 'Opt-Outs'?

EUEkia Gilbert Kum recently published an Article entitled, What are the Comparative Legal, Procedural and Substantive Consequences in Private International Law that Affects, the Doctrine of Renvoi and European Union Member States, Under the Brussels IV Regulation (650/2012) and her 'Opt-Outs'?, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

European Union citizens are all legal entities that dispose personal rights and responsibilities which emanate from the principles of EU substantive and procedural laws. These varies from voting, free movement and establishment rights, and to succession, marriage and adoption rights, within her Member-States. Such harmonised rights allows EU citizens to behave substantively, in upholding their various societal interests as if they were all a single person. It is for such a reason why, a brief analytical and historical presentation of the EU integration project will be discussed in this article.

However, certain Member-States do exercise their “opt out” positions in some EU policy areas which they do not wish to participate. This shall be seen in the case of the question in focus of this Article whereby, the United Kingdom, the Republic of Ireland and Denmark have “opted-out” from the EU Brussels IV Regulation on succession (No: 650/2012). Researcher is interested in comparatively analysing and investigating on how the citizens of Brussels IV Regulation and those of the “opt out” EU Member States, with habitual residence and possessing assets within their jurisdictions are affected. The legal consequences on the doctrine of Renvoi, under the Brussels IV Regulation on succession will be important to be discussed as well.

Researcher will arrive at a conclusion whereby, he will advise all EU citizens on the measures to be taken in order to protect their assets and property interests within the EU Member States, before their demise. This will be followed by a reform proposal on the best possible solution that should be adopted or inserted to the Brussels IV Regulation. Such a reform proposal presented by researcher, will be henceforth put forward to all the EU Members States citizens for approval through a referendum, before its application.

January 9, 2020 in Articles, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, January 7, 2020

Article on The Sub-Trust in Scots Law

ScotflagPatrick J. Follan recently published an Article entitled, The Sub-Trust in Scots Law, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article. 

The paradigmatic trust involves three parties: a settlor (who transfers property to another) a trustee (who holds the property in trust) and a beneficiary (for whom the trust property is administered and who ultimately receives the benefit of that property). The law of trusts allows a number of variations on this theme, of which the 'sub-trust' is one. In a sub-trust, the beneficiary declares a trust over his or her trust interest and so becomes a 'sub-trustee' in a chain of relationships of management and entitlement. The sub-trust occurs relatively often in commercial practice but has been the subject of little detailed study, particularly in Scots law.

This paper considers the idea of the sub-trust within the broader framework of the Scottish law of trusts. Beginning with an introduction to the concept, the paper discusses how it might be accommodated with reference to the predominant model of the trust in Scotland. Having established a possible conceptual basis for the sub-trust, the paper anticipates four difficulties which arise in its operation. Possible solutions are suggested in each case: account is taken in particular of the experience of English law where more frequent use has given rise to a larger body of rules dealing with sub-trusts. The paper demonstrates not only that sub-trusts can be satisfactorily accommodated in Scots law, but that they represent a fruitful area of study in Scotland and further afield.

January 7, 2020 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, January 4, 2020

Article on Non-Charitable Purpose Trusts: The Missing Right to Forego Enforcement

TrustsKelvin K.F. Low recently posted an Article entitled, Non-Charitable Purpose Trusts: The Missing Right to Forego Enforcement, Wills, Trusts, & Estates Law eJournal (2017). Provided below is the abstract of the Article.

Orthodox trust law invalidates non-charitable purpose trusts on the basis of the beneficiary principle. However, in the last two decades, various offshore trust jurisdictions have begun to provide for non-charitable purpose trusts via legislation and Hayton has even suggested that they may be permitted by simple drafting through the provision of an enforcer even in onshore trust jurisdictions without special legislation. This paper sets out the reasons why Hayton is wrong and explains the true basis for the objection to the non-charitable purpose trust. It also explains why charitable trusts are a hybrid of public and private law.

January 4, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, December 30, 2019

Ed Slott's IRA Advisor: Tax & Estate Planning For Your Retirement January 2020

IRASeymour Goldberg, senior partner at Goldberg & Goldberg, a law firm in Melville, NY, has written two practitioner guides for the American Bar Association on IRA compliance issues. He is concerned about IRA trust violations under the IRS rules. An IRA trust is a trust that is the beneficiary of an IRA.

The issue involves timely delivery of certain paperwork to the institution that maintains the decedent’s IRA account after the death of the IRA owner. According to Goldberg’s conversations with the SEC, that issue is an IRS compliance issue, over which the SEC has no jurisdiction.

For more information, see here.

December 30, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)