Wills, Trusts & Estates Prof Blog

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

Tuesday, December 3, 2019

Article on A History of the Law of Assisted Dying in the United States

DeathwdignityAlan Meisel has written an Article that will soon be published, A History of the Law of Assisted Dying in the United States, Elder Law eJournal (2019). Provided below is the abstract to the Article.

The slow growth in the number of states that have enacted legislation to permit what is often referred to as “death with dignity” legislation—and more frequently referred to popularly as “physician assisted suicide” laws—has begun to accelerate in the past few years since the enactment of the first such statute in Oregon in 1994.

Like much other social reform legislation, there is a long history behind it. In this case, the history in the United States dates back at least to the latter part of the nineteenth century. Not until the 1980s, however, did these efforts gain any traction in courts and legislatures. What is probably more responsible than anything else for reviving interest in and providing momentum for legalization is the recognition by state courts, beginning with the Karen Ann Quinlan case in New Jersey in 1975, that the right to be free from unwanted interference with one’s bodily integrity encompasses a right to refuse even life-sustaining medical treatment. The recognition of this so-called right to die was only a short conceptual step—though a long political one—from recognizing that competent adults also should have the right to actively end their lives under certain conditions.

As of the end of 2019, the efforts of a small number of advocacy groups through lobbying, litigation, and public education have resulted in the enactment of death with dignity legislation in nine states and recognition of the right by one state supreme court. Despite dire warnings from opponents of legalization, it has not resulted in either wholesale abuse of the dying or the legalization of active euthanasia (either voluntary or involuntary).

December 3, 2019 in Articles, Current Affairs, Death Event Planning, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, December 2, 2019

Article on How Reliant are Older Americans on State and Local Government Pensions?

PensionPhilip Armour, Michael Hurd, &Susann Rohwedder  recently published an Article entitled, How Reliant are Older Americans on State and Local Government Pensions?, Elder Law eJournal (2019). Provided below is an abstract of the Article.

State and local government pension plans cover about 19.5 million participants, and many participants are heavily reliant on these pensions for retirement income. Most of these plans, however, are underfunded. Based on data from the Health and Retirement Study, we examined the lifetime work histories of those observed at ages 67 to 72 in 2004, 2008, or 2014. Seventy-seven percent of single persons and 61 percent of couple households had never worked for state or local (S&L) government. Among those single and couple households who did work for S&L government, we found that they have on average more years of education and more economic resources. Among currently retired and near-retirement households, we compared economic preparation for retirement according to their lifetime employment in the S&L sector, and we examined how economic preparation would be affected if pension benefits were cut. Based on stochastic simulations, which account for uncertainty about length of life and out-of-pocket medical expenditures, we found that economic preparation for retirement among those with S&L government work histories would only be modestly reduced if their pension income were cut. Under a 50 percent cut to all pension income of households with any S&L sector work, only an additional three to four percent of these households would no longer be prepared for retirement. The change is modest because households with S&L employment have better preparation than other households; some of the cuts are paid for by reduced taxes; and the affected households will bequeath less.

December 2, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, December 1, 2019

Article on Fiduciary Authority and Liability in Probate Estates: An Empirical Analysis

ProbateReid K. Weisbord recently published an Article entitled, Fiduciary Authority and Liability in Probate Estates: An Empirical Analysis, Elder Law eJournal (2019). Provided below is the abstract to the Article.

This Article presents an empirical analysis of testamentary preferences pertaining to the selection, compensation, appointment, powers, and liability of executors. Often an after-thought in the will-drafting process, such administrative terms deserve careful attention because the executor’s central role in the transfer of property at death is so often a source of posthumous conflict. Prior research has shown that executor-related objections are the most frequently asserted claims in probate litigation. This Article surveys the history of estate fiduciary law and summarizes major reforms in the twentieth century that established modern rules governing the appointment, powers, and liability of executors. It then presents empirical findings from a sample of wills probated in New Jersey in 2015.

Major findings from this dataset reveal new information about: (1) who testators nominate to serve as executor, (2) how often nominees agree to serve as executor, (3) what testators say about executor compensation, (4) which fiduciary powers testators grant or withhold from the executor, and (5) whether testators exculpate their executors from liability or otherwise modify the default fiduciary duties of care and loyalty. The Article provides examples of executor-related will provisions extracted from the dataset of probate files.

December 1, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Cases, Trusts, Wills | Permalink | Comments (0)

Saturday, November 30, 2019

Article on Supported Decision-Making: A New Approach for Older Clients with Cognitive Impairment

BrainscanMargaret Castles published an Article entitled, Supported Decision-Making: A New Approach for Older Clients with Cognitive Impairment, Elder Law eJournal (2018). Provided below is the abstract to the Article.

There has been a flurry of law reform activity around elder rights in the last few years. In 2017 the Australian Law Reform Commission’s Report “Elder Abuse – a National Legal Response” made far reaching recommendations. Earlier this year the Commonwealth Government published the results of its Inquiry into the Quality of Residential Aged Care in Australia, and has recently announced a Royal Commission into Aged Care Quality and Safety.

 

November 30, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, November 29, 2019

The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services

ScalegavelAdam S. Hofri-Winogradow recently published an Article entitled, The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract of the Article.

This article reports the findings of the first systematic overview of the statutory liberalization of trust law worldwide. Using a groundbreaking, manually collected, database of the trust legislation of every jurisdiction which has a trust regime respecting 22 trust law variables, I hand coded each jurisdiction’s treatments of each variable since 1925 for their relative liberality. Aggregating all jurisdictions’ scores regarding all variables, I produced a “trust liberality score” for each jurisdiction/year, expressing the extent to which trust law has been liberalized by each jurisdiction by each year.

Results show the United States to be the global leader in trust law liberality: 17 of the 20 jurisdictions which have the most liberal trust laws are American states. Trust law liberalization in the U.S. is a result of the widespread adoption of the Uniform Trust Code, which includes many highly liberal positions, among the states, as well as of many states having followed an offshore dynamic in adopting highly permissive positions in order to draw users from out of state to resident service providers. The trust laws of many American states are more liberal than those of small offshore island jurisdictions. Even the laws of such relatively conservative American states, on trust matters, as New York and California are quite liberal by global standards. Much of the recent global increase in trust law liberality occurred between 1988-2016.

Multivariate regression analysis of U.S. data shows that the statutory liberalization of trust law has had no effect on several indicia for the success of service provision to trusts as a commercial enterprise. It is especially clear that reforms seen as pandering to trust users’ interests at great social cost, such as self-settled spendthrift trusts and perpetual trusts, all in order to create or sustain demand for professional services in the trust context, have had no impact on any of these indicia. As an exception to the general finding of a null result, some findings with marginal statistical significance may show that law reforms which reduced trustees’ exposure to liability and entrenched their entitlement to remuneration led to a decline in their earnings per trust. Those reforms are also weakly associated with an increase in trust income. It is therefore possible that reforms widely seen as preferring trustees over their clients have resulted in trustees providing a better service at lower cost.

November 29, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Monday, November 25, 2019

Systemic IRA Trust Compliance Issue Can Have Big Tax and Penalty Impact

IRAPost-death rules governing IRAs, particularly those involving trusts, are complicated and if not strictly adhered to can lead to severe ramifications for the intended beneficiaries. One such rule, often referred to as the “documentation rule” may not seem that complicated at first glance, but failure to meet its requirements can result in confiscatory penalties, as noted by our IRA expert commentator, Seymour Goldberg. Mr. Goldberg is the senior partner in the law firm of Goldberg & Goldberg, P.C. in Long Island, New York. He is Professor Emeritus of Accounting, Law and Taxation at Long Island University and has conducted continuing education programs with the IRS and well over 50 such programs over the last 15 years or more for practitioners (attorneys and CPAs) on IRA compliance issues. He has written two practitioner guides for the American Bar Association on IRA Compliance Issues as well. He has also written dozens of articles and several manuals on the subject area. Mr. Goldberg can be reached at 516-222-0422 or by email at info.goldbergira@gmail.com. You may also visit his website at TrustEstateProbate.com.

See Seymour Goldberg, Systemic IRA Trust Compliance Issue Can Have Big Tax and Penalty Impact, Estate Planning Review - The Journal, November 19, 2019.

November 25, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

Saturday, November 23, 2019

Re-Imagining the Business Trust As a Sustainable Business Form

Lee-ford TrittProf. Lee-ford Tritt and Ryan Scott Teschner have recently posted their innovative article, Re-Imagining the Business Trust As a Sustainable Business Form on SSRN. Here is the article's abstract:

An important policy debate has emerged in the United States concerning how business should evolve to encapsulate more fully the burgeoning sustainability-conscious management paradigm. At issue in this debate is the proper role of business in society. The modern trend in business is to consider more than just shareholder profits. In the United States, companies are increasingly incorporating sustainability practices into their business models. However, by practice and by law, the traditional corporate management paradigm—the shareholder primacy model—holds that the singular social responsibility of business is to maximize shareholder interests, principally shareholder profits. This model conflicts with the sustainability management paradigm, which reflects the view that business should maximize value for society. Some states have realized the shortcomings of the traditional corporate management model and have enacted constituency statutes or created new corporate form practices. However, these statutes and corporate forms have their own shortcomings. Historically, business trusts have been used to circumvent overly-restrictive corporate organizational and legal limitations. Entrepreneurs should once again look to this business form to pursue sustainable practices while maintaining profitability. Due to business trusts’ structure and flexibility, they are an ideal vehicle for sustainable businesses. Accordingly, by drawing upon trust law and corporate law, this Article articulates an interdisciplinary, systematic application of business trusts as an alternative organizational form to corporations for the socially-conscious business management construct.

November 23, 2019 in Articles, Trusts | Permalink | Comments (0)

Thursday, November 21, 2019

Article on What Probate Courts Cite: Lessons from the New York County Surrogate's Court 2017-2018

CourtroomBridget J. Crawford recently published an Article entitled, What Probate Courts Cite: Lessons from the New York County Surrogate's Court 2017-2018, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees and orders issued by the New York County Surrogate’s Court in the years 2017 and 2018, that the probate court located in the most densely populated county in the United States cites fewer authorities less often than almost any other court (of any level) for which data is available.

There are a variety of factors that may explain this low rate of citation by the New York County Surrogate’s Court including docket size, the size and composition of the court’s staff, a judicial perception that the application of the law is a relatively mechanical process, or a subjective determination that speed in processing the court’s docket outweighs any public interest in citation-replete decrees and orders. Yet by increasing its engagement with a range of authorities, the New York County Surrogate’s Court (and indeed any probate court) may increase public confidence in the judiciary while also enhancing understanding of trusts and estates as a complex and dynamic area of law.

November 21, 2019 in Articles, Current Events, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Wednesday, November 20, 2019

Article on The Concept of Inheritance by Right of Representation: A Comparative Analysis of Civil Law in Russia and France

FranceNatalia Rostovtseva recently published an Article entitled, The Concept of Inheritance by Right of Representation: A Comparative Analysis of Civil Law in Russia and France, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This paper examines one of the most important concepts of intestate succession – inheritance by right of representation. The following analysis is based on civil law in Russia and France.

The paper provides an overview of the meaning and the role of the right of representation, determines those who can inherit by right of representation under the Russian and French civil codes as well as the grounds for succession; examines the limitations on inheritance by right of representation under civil law in both states; identifies the legal nature of the rights of the representing heirs. Specific attention is paid to the issue of representation of the parent who is the commorient of the decedent.

As a result of the comparative study, the author makes proposals on the improvement of the concept of inheritance by right of representation in Russia and France.

November 20, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Tuesday, November 19, 2019

Article on Tiered Structures for Family Office Operations: Integrating a Private Trust Company with a Family Office

Office1William J. Kambas, Amy M. Staehr, and Constance Shields published an Article entitled, Tiered Structures for Family Office Operations: Integrating a Private Trust Company with a Family Office, Probate & Property Magazine, Vol. 33, No. 5 (Sept/Oct 2019). Provided below is the introduction of the Article:

Both private trust companies (PTCs) and family offices (FOs) are often integral parts of the family-owned and family-controlled enterprises. As services organizations that are used to manage and control assets, orchestrate transition, and represent family interests within a multi-generational structure, the overall goal of both types of entity is to guide the use and enjoyment of family assets across generations. The reasons for establishing an FO or a PTC - or both - are numerous and varied. For some families, the most streamlines and efficient approach involves intergrating the two.

As a family enterprise grows, the integration of a PTC and an FO can be particularly attractive; if done properly, it can create economies of scale and result in efficiences like those found in multi-national corporation structured as a parent-subsidiary or branch operations. For example, one model moves the FO into a headquarter-type position as it takes on the supervision and control of the component parts of the operations of a family enterprise, resulting in consolidation, consistency, and substantial overal supervision of the group. The FO may supervise several subsidiary operations including fidicary services, insurance companies, and philanthropy management - much like a corporate holding company popular with many parent-subsidiary companies of the world. From an ownership standpoint, the FO would hold the equity interests in the subsidiary operations. This model is efficient, offers creditor protection, and promotes consistency among operations, much like a logitics center. An alternative model results in the PTC as the headquarters or parent component.

Such integration, however, is not without risk and can have unintended consequences. In this article, we focus on some of the leading issues faced with integrating a family's PTC with its FO. In certain cases, the combination of responsibilities into a unified structure will result in exponential benefits.

November 19, 2019 in Articles, Current Affairs, Estate Planning - Generally | Permalink | Comments (0)