Wills, Trusts & Estates Prof Blog

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

Wednesday, December 12, 2018

Article on Disregarding Donors and Tinkering with Texas Trusts: Judicial Modification of Restricted Charitable Gifts

TtMatthew Roland recently published an Article entitled, Disregarding Donors and Tinkering with Texas Trusts: Judicial Modification of Restricted Charitable Gifts, 10 Tex. Tech Est. Plan. & Cmty. Prop. L. J. 375-394 (Summer 2018). Provided below is an introduction to the Article.

Founded in 1881, the University of Texas at Austin has since outgrown its famed "Forty Acres" and flourished into one of the nation's largest universities. As far back as the turn of the nineteenth century, University officials foresaw enrollment inevitably exceeding the limits of the school's original campus. Colonel George W. Brackenridge served on the University of Texas System's Board of Regents at the time and devoted considerable energy and wealth towards fostering a first-class state university.

December 12, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, December 11, 2018

Article on Sustainable Trusts and Estates and Real Property Practices

SustainableMary E. Vandenack recently published an Article entitled, Sustainable Trusts and Estates and Real Property Practices, Probate & Property Magazine, Vol. 32, No. 6, November/December 2018. Provided below is an abstract of the Article.

Many lawyers  are concerned with how their practices can remain relevant and profitable as the legal industry changes. There are many reasons for such concern. Although the legal industry is changing, it is possible to design a law firm that will sustain itself both today and in the future. To achieve such a solution requires mindful attention to the current state of one's law firm and the industry as a whole. In addition to changes in the industry, changes in the workforce must be considered.

December 11, 2018 in Articles, Current Affairs, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Monday, December 10, 2018

Article on The Family Business Charter: An Essential Tool for Growing and Sustaining a Family Business

FamilyJeff Bird authored an article in the December issue of Seattle Business magazine titled The Family Business Charter: An Essential Tool for Growing and Sustaining a Family Business (2018).The article discusses the key elements of a family business charter, which can be implemented to help transition family businesses successfully between generations.


At its core, a Family Business Charter is similar to a constitution in that it provides a framework for operating the business and captures the wisdom and vision of the family founders. It sets forth the essential rules, obligations and responsibilities relating to ownership and management of the family business, as well as the family values that will help sustain the business for future generations. How family members become eligible for ownership and participation in the family business, and how succession and leadership transition are handled, can have a huge impact on the success of the business and the legacy left to future generations. The Family Business Charter addresses these issues.

December 10, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Friday, December 7, 2018

Article on #MeToo and Tax

MetooMargaret Ryznar recently published an Article entitled, #MeToo and Tax, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

Recently, legislative efforts have taken aim at sexual harassment in the workplace. Among these may be a surprising but effective approach—disallowing tax deductions for sexual harassment settlements subject to non-disclosure agreements. This essay analyzes such a 2017 tax reform provision.

December 7, 2018 in Articles, Current Affairs, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Thursday, December 6, 2018

Article on ‘First Among Equals’: Breaking the Deadlock in Parental and Sibling Funeral Disputes

UnionjackHeather Conway recently published an Article entitled, ‘First Among Equals’: Breaking the Deadlock in Parental and Sibling Funeral Disputes, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Family disputes over a loved one’s funeral arrangements are increasingly frequent, with courts intervening if consensus cannot be reached. In many common law jurisdictions, the law favours the executor where the deceased made a will and the highest ranking next-of-kin where the deceased died intestate. But what if two or more people fall within the same kinship tier and have equal rights to determine the deceased’s fate- who has the final say? Adopting a uniquely comparative approach which draws the authorities together for the first time, this article analyses the factors devised by judges in Australia and England, and contrasts them with the discrete statutory tests adopted in parts of Canada and the United States. Having evaluated the various approaches, the article proposes its own hybrid legal solution for breaking the deadlock in so-called ‘equal kinship disputes’.

December 6, 2018 in Articles, Current Affairs, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, December 4, 2018

Article on The Tax Cuts and Jobs Act of 2017 (TCJA) and Its Impact on Investors, Their Trusts, Investment Entities, Retirement Plans and Estates -- Part 1 Tax Reform for Individuals

TaxlawDean Marsan recently published an Article entitled, The Tax Cuts and Jobs Act of 2017 (TCJA) and Its Impact on Investors, Their Trusts, Investment Entities, Retirement Plans and Estates -- Part 1 Tax Reform for Individuals, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

This article is the first of three parts (Part 1) and examines the Tax Cuts and Jobs Act of 2017 and its impact on investors and their investment entities, retirement plans, trusts and estates and also tracks its legislative history through Congress. This article focuses on the tax reform's impact on individuals and the second article submitted to SSRN discusses business tax reform (Part 2) and compensation reforms (Part 3).

December 4, 2018 in Articles, Current Affairs, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Monday, December 3, 2018

Article on Constructive Trusteeship: The Perils of Statutory Formulae

MarshallDarryn Jensen published an Article entitled, Constructive Trusteeship: The Perils of Statutory Formulae, Wills, Trusts, & Estates Law eJournal (2016). Provided below is an abstract of the Article.

This paper evaluates the provisions concerning constructive trusteeship in Trusts Act 1994 (Marshall Islands) and makes more general observations about the roles of constructive trusts in litigation involving trustees' breaches of duty, the roles of statute law and the risk inherent in attempts to express complex and multi-faceted private law concepts in statutory formulae.

 

December 3, 2018 in Articles, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Thursday, November 29, 2018

Article on Elderly and Incarcerated: Preventing the Medical Deaths of Older People in Texas Prisons

PrisonErika A. Parks published an Article entitled, Elderly and Incarcerated: Preventing the Medical Deaths of Older People in Texas Prisons, 23 Tex. J. on C.L. & C.R. 145-164 (2018). Provided below is an abstract of the Article.

Between 2005 and 2015, 2,284 people over the age of 55 died in Texas prisons. All but 53 of these deaths were due to natural causes. The older population in Texas prison has been growing in both number and percentage for some time, spiking from 11.9 percent of the total in 2005 to today’s 20.3 percent, a growth trend mirrored across the United States. The large number of older people in Texas prisons causes logistical challenges for the Texas Department of Criminal Justice (TDCJ) as well as for the people in prison themselves. Older people have different challenges in prison than their younger counterparts, including mobility problems, other physical and mental disabilities, and a variety of medical issues that can lead to death. This paper explores current conditions for older people in Texas prisons and analyzes data on older people who died of natural causes in prison. Analysis indicates that a plurality of these people entered prison when they were already at least 55 years old, and the majority had been in prison for fewer than 10 years at the time of their deaths. The paper also recommends policy options to prevent these deaths, including increasing availability of medical and compassionate release, prioritizing alternatives to prison for older people who commit crimes, and establishing residential facilities to safely house older people on parole.

November 29, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, November 28, 2018

Article on Introducing a "New" Human Right: Learning From Others, Bringing Legal Capacity Home

UnKristin Booth Glen recently published an Article entitled, Introducing a "New" Human Right: Learning From Others, Bringing Legal Capacity Home, 49 Colum. Hum. Rts. L. Rev. 1-97 (2018). Provided below is the introduction to the Article.

The human right of legal capacity, most recently enunciated in Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), potentially transforms the way we see, understand, and treat people with a wide range of intellectual, developmental, and cognitive disabilities. This Article considers how the human right of legal capacity,  specifically for persons with disabilities, can be incorporated into legal discourse and practice in the United States. It recognizes the many challenges such an endeavor confronts. As well, it notes opportunities to enhance and improve the dignity, autonomy, and self-determination of persons who are routinely deprived of the right, most commonly through systems of substituted decision-making, like guardianship and conservatorship, or, in the case of persons with psychosocial disabilities, forced treatment or confinement.

This Article also looks at the ways in which legal capacity and the corresponding practice of supported decision-making (SDM) have been introduced in countries around the world and draws on those countries' experiences. Some countries have focused exclusively on legislative reform; others have utilized pilot projects demonstrating that protecting legal capacity through the use of SDM can constitute an effective and rights-enhancing alternative to guardianship. Incorporating references to some of these efforts in Europe, Africa, and Australia, this Article focuses on two of the longest-standing and most-developed efforts-those in Canada and Bulgaria-for lessons that might be learned. It considers efforts in the United States, which have, thus far, concentrated on SDM to the exclusion of the specific right of legal capacity. This Article concludes with some observations about what it will take to bring this critical human right "home."

November 28, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, November 26, 2018

Article on Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers

PoaNina A. Kohn published an Article entitled, Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers, Wills, Trusts, & Estates Law eJournal (2017). Provided below is an abstract of the Article.

Attorneys frequently represent clients who have a surrogate decision-maker with authority to make decisions on the matter underlying the representation. Such representations raise important questions for both attorneys and the courts in which they appear. Key questions include: From whom should the attorney take direction? With whom should the attorney communicate? If the attorney is taking direction from the surrogate decision-maker and not the principal, when should the court treat the principal as an unrepresented party?

This article provides answers to these challenging questions, thus providing both courts and attorneys with much needed guidance. Specifically, the article considers two types of surrogates: 1) agents appointed pursuant to a power of attorney for finances, and 2) guardians or conservators appointed by a court. In doing so, it seeks to inform the courts about expectations for attorney behavior so that courts can be confident that the attorneys appearing before them actually represent the persons whom they allege to represent, and can identify situations in which the attorney may be facilitating exploitation of a vulnerable person.

November 26, 2018 in Articles, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)