Wills, Trusts & Estates Prof Blog

Article: Intercategorical Analysis of Law

Adamn J. Hirsh (University of San Diego) recently published an Article, Intercategorical Analysis of Law, San Diego Legal Studies Paper No. 23-018, 2023. Provided below is an abstract to the Article:

This Article advocates the routine use of intercategorical analysis in lawmaking: When formulating (or revisiting) rules within one legal category, courts, legislators, and codifiers alike should explore analogous doctrines that prevail in related categories. Such exploration may provide lawmakers with both inspiration and data relevant to formulating the doctrine under consideration. The Article offers three, disparate illustrations of how intercategorical analysis could improve our law, regarding (1) nonpossessory liens, (2) formalities for transfers of property, and (3) in rem proceedings for winding up different kinds of estates. The Article also addresses the potential relevance of intercategorical analysis when drawing the boundaries of legal categories. Finally, the Article assesses the risks inherent in intercategorical analysis and relates this mode of analysis to other “law-ands.”

Don’t Let Death Be Your Deadline: Get A Will Before It’s Too Late: Expand Holographic-Wills Law to Incentivize Will-Making

Angela M. Vallario (University of Baltimore School of Law) recently published a paper, Don’t Let Death Be Your Deadline: Get A Will Before It’s Too Late: Expand Holographic-Wills Law to Incentivize Will-Making, Elder Law Journal, Forthcoming. Provided below is an abstract to the paper:

Procrastination is the number one reason for Americans’ lack of will-making. Many fail to get this important task completed before death despite acknowledging its importance. No one thing will remedy the lack of will-making in America. This Article suggests one way to address the problem is to more aggressively educate people on why a will is necessary, especially when blended families and children are part of the intestate’s family. The education efforts should target young adults in their senior year of high school and be further employed at universities, coupled with broader efforts to reach adults. Law students, in line with ABA303(a)(3), are uniquely situated to provide education to their communities and local area. Additionally, attorney-supervised law students could engage in will-making while simultaneously creating experiential learning opportunities.

Secondly, Americans need a self-help option that is readily available when needed. This minimizes concerns of the holographic will by expanding holographic-will law to include a one-page fill-in the blank statutory form. Although a professionally prepared will is ideal, there need to be other options to encourage will-making. Americans are self-sufficient and making a holographic form available when people have medical issues or travel could incentivize some to prepare a holographic form as a stepping stone towards a more complex estate plan, and serve as a placeholder to avoid intestacy in the event of the inevitable.

Article: Targeting the Challenges and Pitfalls of Military Estate Planning

Duane Close (Regent University School of Law) recently published a paper, Targeting the Challenges and Pitfalls of Military Estate Planning, April 2023. Provided below is an abstract to the paper:

An insightful illustration of the issues servicemembers face when career and estate planning. The first part shares the experiences of several servicemembers in narrative form as they made their way through their careers. Part Two discusses background law that would have been useful for their planning, the benefits that are available to all servicemembers, and how they may take advantage of some resources only available while on active duty. Part Three discusses strategies for a case-by-case analysis and planning factors for an individual seeking the aid of legal counsel. This section also includes a checklist for both the member and the legal professional to use to start the process and support the formation of additional questions to further develop a comprehensive estate plan.

Article: Private Purpose Trusts: Good for Scotland?

Alexandra Braun (University of Edinburgh School of Law) recently published a paper, Private Purpose Trusts: Good for Scotland?, 2023. Provided below is an abstract to the paper:

On 22 November 2022 the Scottish Government introduced the Trusts and Succession (Scotland) Bill (hereinafter ‘the Bill’) whose overall aim is to modernise the law of trusts in Scotland and to attract international trust business. Among other things the Bill proposes to introduce a regulatory framework for private purpose trusts in Scotland which is contained in Chapter 6. Private purpose trusts are trusts which are not created for the benefit of one or more beneficiaries, but for the furtherance of a private purpose that is non-charitable. In seeking to introduce private purpose trusts, Scotland looked for inspiration offshore, notably the STAR legislation of the Cayman Islands and Guernsey trust law. The Scottish proposal, however, has arguably gone a step further by proposing a scheme that is even more flexible and user-friendly than that offered by the offshore models.

This paper explores whether this radical break with the past is to be welcomed. It examines the extent to which the proposed regulatory scheme addresses practical as well as conceptual objections commonly raised against private purpose trusts, but also their workability and compatibility with Scots trust law.

The paper argues that the core objections against the admissibility of private purpose trusts have not been satisfactorily overcome by the Bill and that the conceptual and theoretical but also ethical concerns that such trusts raise have not been given sufficient attention. In particular, Chapter 6 of the Bill raises serious concerns about the enforceability of private purpose trusts in Scotland which could potentially be used to make beneficial ownership disappear. This is especially problematic given that in Scotland, trusts can be constituted for whatever duration the truster elects and according to the Bill, private purpose trusts will be very difficult to terminate. Further, Chapter 6 leaves a number of questions unanswered and some of its provisions raise terminological and conceptual questions that are bound to create confusion and uncertainty. Finally, the scope of the proposed legal framework for private purpose trusts is unclear and its provisions could potentially affect a wide range of private trusts, and, in particular, the rights of beneficiaries under such trusts.

Thus, even though the Trusts and Succession (Scotland) Bill is an important piece of legislation for Scotland and has many positive features, Chapter 6 is best dropped, especially given that it is far from certain whether it will lead to new business for Scotland. While it may well be the case that certain types of trusts currently operating in Scotland could be classified as private purpose trusts, the proposed framework runs the risk of opening up Scotland to, and offering a statutory validation of, all manner of private purpose trusts with far-reaching consequences.

Article: Making Some Sense of the Constitutional Family

Katharine K. Baker (Chicago-Kent College of Law) recently published an article, Making Some Sense of the Constitutional Family, Wash U J L & Pub Pol’y, (Forthcoming). Provided below is an abstract to the article:

This essay explores the Supreme Court’s approaches to family definition. It unpacks how the Court has defined family differently in different contexts, and it argues that what can appear to be a confused doctrine actually makes some sense once one realizes that how the Court defines family is related to why the State is recognizing family at all. When the law recognizes family for any purpose, it must define it, either with reference to some extra-legal determinant like genetics, a pure legal construction like marriage, or a case-by-case assessment of lived experience like function. The Court has relied on all three of these mechanisms to define family, but it has almost never explained why it uses different definitions at different times. This essay examines the Court’s jurisprudence and begins to address the question of why it has used different definitions of family in different contexts. While much of the Court’s reasoning in these cases either never made sense or no longer makes sense given the evolution of technology and social norms, many of the Supreme Court’s seemingly confused results can be justified if one takes time to appreciate the different contexts in which the State has defined family.

Intercategorical Analysis of Law

Adam J. Hirsch (Napoleon Jones Professor of Law and Herzog Endowed Scholar, University of San Diego School of Law) recently posted on SSRN his article entitled Intercategorical Analysis of Law which is forthcoming in the Washington University Jurisprudence Review. Here is the abstract of his article:

This Article advocates the routine use of intercategorical analysis in lawmaking: When formulating (or revisiting) rules within one legal category, courts, legislators, and codifiers alike should explore analogous doctrines that prevail in related categories. Such exploration may provide lawmakers with both inspiration and data relevant to formulating the doctrine under consideration. The Article offers three, disparate illustrations of how intercategorical analysis could improve our law, regarding (1) nonpossessory liens, (2) formalities for transfers of property, and (3) in rem proceedings for winding up different kinds of estates. The Article also addresses the potential relevance of intercategorical analysis when drawing the boundaries of legal categories. Finally, the Article assesses the risks inherent in intercategorical analysis and relates this mode of analysis to other “law-ands.”

What Could Go Wrong? Choosing the Best Drivers for the Estate-Planning Bus

Jay E. Harker (Stifel Trust Company, N.A.) recently published an article, What Could Go Wrong? Choosing the Best Drivers for the Estate-Planning Bus, ABA Probate & Property Magazine, May/June 2023. Provided below is an introduction to the article:

Estate planning is essential for people who have accumulated meaningful wealth or face challenging family circumstances. Like math, estate planning can be hard, especially so when clients need to decide who should drive their estate-planning bus. Disaster can ensue if this decision is taken lightly. Often, discussions of this topic focus on the relative merits of individual trustees versus corporate trustees. This article reframes the discussion by focusing on selection methodology, rather than type of trustee. Lawyers can help clients avoid estate-planning disasters by encouraging them to make better trustee-selection decisions.

Article: Inheritance Law

Marcelo Ortiz M. (Universitat Pompeu Fabra: Barcelona Graduate School of Economics; Barcelona School of Management) recently published a paper, Inheritance Law, Elgar Encyclopedia of Family Business, Cheltenham, UK, Edward Elgar Publishing, 2023. Provided below is an abstract to the Paper:

Inheritance law is a family-oriented legal institution shaping how families transfer wealth across generations. This review discusses the main components of inheritance law (inheritance tax rate, and testamentary freedom), and how they impact business families. It also explores common strategies used by business families to mitigate the effects of inheritance law, such as family trusts and corporate ownership transactions. Finally, this review discusses the evidence of the effects of inheritance laws on business families and their impact on social inequality. Overall, this review provides a comprehensive overview of inheritance law and its implications for business families.

Article: 2021 Survey of Rhode Island Case Law, Kumble v. Voccola, 253 A.3d 1248 (R.I. 2021)

Aryamen Omshehe (Roger Williams University School of Law) recently published a paper, 2021 Survey of Rhode Island Case Law, Kumble v. Voccola, 253 A.3d 1248 (R.I. 2021), Roger Williams University Law Review, 2022. Provided below is an abstract to the paper:

This survey examines cases arising from a dispute between the beneficiaries and trustees of two testamentary trusts. In the Superior Court, the trustees sought attorneys’ fees and interest on those fees incurred during the administration of the trusts, which the trial justice awarded. On appeal, the beneficiaries contended that the award of attorneys’ fees and costs was unreasonable, disproportionate, and an abuse of discretion and that the award of interest was contrary to the law and the facts. The Supreme Court held that the trial justice correctly awarded attorneys’ fees pursuant to R.I.G.L. 1956 § 18-6-1 and had adequately weighed the factors for awarding those fees as outlined in Colonial Plumbing & Heating Supply Co. v. Contemporary Construction Co., 464 A.2d 741 (R.I. 1983). Additionally, the Court held that interest on those attorneys’ fees was a reasonable expense incurred by the trust. Therefore, the Court affirmed the judgment of the Superior Court.

Article: An Opportunity to Redesign the SECURE Act 2.0

Albert Feuer (Law Offices of Albert Feuer) recently published an article, An Opportunity to Redesign the SECURE Act 2.0, Tax Management Compensation Planning Journal, 2023. Provided below is an abstract to the Article:

There has been much technocratic criticism of the SECURE Act 2.0’s elimination of catch-up contributions to 401(k) plans, 403(b) plans and 457(b) plans. This criticism disregards the effects of those catch-up provisions and those that increase the RMD. The SECURE Act 2.0 would better secure retirement equity if both those provisions were replaced by provisions that would help the tens of millions of workers struggling to accumulate adequate retirement savings. Moreover, more retirement equity would be created if SECURE Act 2.0 included more provisions to encourage better compliance with the retirement tax incentive rules including provisions to prevent those who violate the rules from benefitting from such violations.