Wills, Trusts & Estates Prof Blog

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

Sunday, May 26, 2024

Article: Characteristic Uses of Trusts: A Response to Bennett & Hofri

David Frydrych (Monash University - Faculty of Law) recently published, Characteristic Uses of Trusts: A Response to Bennett & Hofri, 2024. Provided below is an Abstract:

In a recent article (OJLS 2021), Mark Bennett and Adam Hofri claim that the ‘characteristic use’ of trusts is to subvert other areas of law. This is mistaken. For one thing, their theory is sometimes really concerned with those other areas of law, e.g., tax. Further, their approach mystifies by framing matters as a conflict between trusts versus property, tax, etc., when determining a system’s real stance instead requires seeing how all relevant legal rules and norms operate in the aggregate. Their theory sometimes also treats different jurisdictions’ laws as if they serve a single legal system, which ignores the reality of jurisdictional competition. This article additionally scrutinises some methodological bases for ‘normative’ theorisation about private law, and then assesses Bennett and Hofri’s arguments about whether the impugned trust laws and practices are justifiable.

May 26, 2024 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Saturday, May 25, 2024

Article: Trusts Jurisdiction Clauses: An Analysis

Ying Khai Liew (University of Melbourne - Melbourne Law School), and Richard Garnett (University of Melbourne - Melbourne Law School) recently published, Trusts Jurisdiction Clauses: An Analysis, 2024. Provided below is an Abstract:

While jurisdiction clauses, or choice of court agreements, are increasingly utilised in trust deeds, the common law rules which apply to these clauses are far from clear. In comparison to the contractual context, the use of jurisdiction clauses in the trusts context is relatively more recent, and the relevant authorities are sparse. This situation is a source of concern, since the present state of the law detracts from the very reason for which a jurisdiction clause is frequently used in modern trusts practice, namely, the attainment of certainty. Therefore, it is important that this area of law is properly analysed, and its principles carefully stated. This article begins first by discussing the contractual position, since the rules which apply in that context are often adopted, adapted, or taken as a point of comparison in trusts cases. It then discusses the three relevant questions which arises in relation to jurisdiction clauses in the trusts context, namely the existence, scope, and enforceability of a jurisdiction clause. The final section concludes the article.

May 25, 2024 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, May 24, 2024

Steve Wozniak: When I die, these are the moments I want to remember—they don't involve co-founding Apple

E4c3416c-d98e-4c22-a174-421bde87fdda_1140x641Steve Wozniak won't measure his happiness by Apple's market cap or his net worth at the end of his life. Instead, he values the laughter and memories shared with loved ones. During a commencement speech at the University of Colorado Boulder, he urged graduates to prioritize joy over accomplishments.

Wozniak shared an anecdote about ex-Viacom CEO Sumner Redstone, highlighting the futility of wealth and power. He concluded, "I want to die remembering my pranks, fun, and jokes. Life is about happiness, not accomplishment."

He offered a simple happiness formula: "H equals S minus F" (happiness equals smiles minus frowns), noting his smiles come from family, music, and comedy. Despite being expelled from the same university in 1969 for hacking, Wozniak later co-founded Apple with Steve Jobs.

Wozniak advised finding joy in life by being aware of and pursuing what makes you happy. Harvard professor Arthur C. Brooks calls the pursuit of happiness the "arrival fallacy," emphasizing that happiness is a direction, not a destination.

Wozniak concluded by encouraging graduates to stay honest, keep smiling, and pay their successes forward.

For more information see Ashton Jackson "Steve Wozniak: When I die, these are the moments I want to remember—they don't involve co-founding Apple", CNBC, May 18, 2024. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

May 24, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Thursday, May 23, 2024

Elvis’ granddaughter fights Graceland foreclosure sale and alleges fraud

Screenshot 2024-05-21 at 9.17.15 PMDanielle Riley Keough, granddaughter of Elvis, is the current owner of Graceland, the singer's famous Memphis home. Keough was able to get a restraining order against the sale of the home before the court rules on her application for an injunction. Keough is suing Nusanny Investments & Private Lending LLC to stop a foreclosure sale of Graceland alleging fraud and saying the company behind the sale does not exist and has no rights to the property. 

The company has presented documents appearing to show that Lisa Marie Presley, Keough's late mother, had borrowed $3.8 million from Nausanny Investments and gave the deed of trust encumbering Graceland as security. Keough and Elvis Presley Enterprises insist these documents are false and Lisa Marie never borrowed money nor gave the deed of trust to the company. Elvis Presley Enterprises says the counter lawsuit has been filed to stop the fraud. 

For more information see Raja Razek "Elvis’ granddaughter fights Graceland foreclosure sale and alleges fraud", CNN, May 21, 2024. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

May 23, 2024 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 22, 2024

Article: Contractual Licences Over Land and the Disappearing Divide between Property and Obligation

Lucas Clover Alcolea (University of Otago - Faculty of Law) recently published,  Contractual Licences Over Land and the Disappearing Divide between Property and Obligation, 2024. Provided below is an abstract:

The law surrounding contractual licences over land has long been the subject of controversy, particularly since Lord Denning’s attempts to convert them into fully proprietary rights. This paper divides the law concerning such licences into three eras, orthodoxy, Denning, and a ‘return to orthodoxy?’ before analysing each in turn. Subsequently, it outlines how despite an apparent return to orthodoxy licences have continued to benefit from significant ‘remedial growth’, as courts have been willing to grant licensees remedies traditionally restricted to, and intertwined with, proprietary rights, such as relief from forfeiture, specific performance, injunctive relief, and the ability to bring trespass claims. It will then be suggested that there are only three possible approaches to contractual licences over land: i) they are fully proprietary, ii) they are purely personal rights, or, iii) they can be recognised as weakly, or ‘quasi’, proprietary. It will be suggested that of these approaches the third is the most coherent and is in line both with equity’s general tendency to transform purely personal rights into proprietary rights, and with the relative and gradated nature of property in the common law.

 

May 22, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Tuesday, May 21, 2024

The American College of Trust and Estate Counsel Releases 300th Podcast

The following is from an ACTEC press release:

Washington, DC, May 21, 2024: The American College of Trust and Estate Counsel (ACTEC) today released its 300th podcast in the ACTEC Trust and Estate Talk series, titled "Estate Planning in 2024." ACTEC Fellow and Past President Stephen R. Akers of Dallas, Texas, delivers this special podcast, discussing key issues in estate planning in 2024, including grantor trusts and income tax reimbursement, gift tax implications of trust modifications, and Section 2519 and QTIP trusts. The ACTEC Trust and Estate Talk Series is sponsored by the ACTEC Foundation.

In 2018, ACTEC Fellow Susan D. Snyder, who now serves as ACTEC's President (20242025), introduced the ACTEC Trust and Estate Talk podcast series concept to the ACTEC Communications Committee. She served as the series' first executive producer, with the goal of providing an educational resource for ACTEC Fellows, wealth and estate management professionals, and aspiring attorneys. Susan shares, "Reaching our 300th podcast is a significant milestone for this Series and for ACTEC. The podcasts have been downloaded over 575,000 times and have greatly enhanced the visibility of the College among ACTEC Fellows, law students, and trust and estate practitioners."

The first podcast in this series, “What Should Attorneys Have in Their Engagement Letters?” was issued on February 20, 2018. The full ACTEC Trust and Estate Talk library is available on The ACTEC Foundation website.

About The American College of Trust and Estate Counsel (ACTEC): Established in 1949, The American College of Trust and Estate Counsel (ACTEC) is a national, nonprofit association of approximately 2,500 lawyers and law professors from throughout the United States and abroad. ACTEC members (Fellows) are peer-elected on the basis of professional reputation and expertise in the preparation of wills and trusts, estate planning, probate, trust administration and related practice areas. The College’s mission includes the improvement and reform of probate, trust and tax laws and procedures and professional practice standards. ACTEC frequently offers technical comments with regard to legislation and regulations but does not take positions on matters of policy or political objectives.

About The ACTEC Foundation:  The ACTEC Foundation is the philanthropic arm of The American College of Trust and Estate Counsel or ACTEC. The Foundation is a nonprofit, 501(c)(3) that offers education to families and professionals and supports students interested in the trust and estate area of the law. Through continued financial support, The ACTEC Foundation offers professional development, scholarships and education for a number of important efforts, including legal education, educational support, public initiatives, legal publications and the student editorial board.

May 21, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Article: Inheriting Intangibles: Exploring Copyright Erosion Through Succession via Wills

Isaiah Burroughs (Independent) recently published, Inheriting Intangibles: Exploring Copyright Erosion Through Succession via Wills, 2024. Provided below is an Abstract:

Under current copyright law, the holder enjoys copyright protection for the duration of the author's life, extended by seventy years. However, the question arises: who assumes ownership of post-mortem copyright, and to what extent do their rights extend? Unless the recipient possesses legal or artistic insight, this transition can often represent a forfeited chance for intergenerational wealth exchange. Moreover, it might lead to a loss of creativity and innovation within society at large. This comment delves into potential remedies for this issue. Specifically, it explores how we might address this challenge and proposes an examination of diverse policy considerations aimed at fortifying post-mortem copyright regulations.

May 21, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Monday, May 20, 2024

Article: Reforming the Singapore Trust: Pushing or Breaking Boundaries?

Jeremiah Lau Jia Jun (National University of Singapore - Faculty of Law) and Kelvin F.K. Low (National University of Singapore - Faculty of Law) recently published, Reforming the Singapore Trust: Pushing or Breaking Boundaries?, 2024. Provided below is an Abstract:

This chapter assesses the various enacted and proposed legislative reforms to Singapore’s trust law in the new millennium, including the Business Trusts Act, the Trust Companies Act and the amendments to the Trustee’s Act. We also consider the recent proposal to introduce non charitable purpose trusts. The tricky process of law reform is an interesting setting in which to consider various ‘boundary problems’ in trusts. Can statutory reform refine or sharpen the unclear boundaries of a judge-made trust law rule? To what extent can the conceptual boundaries of the English trust be modified by statute? Do these reforms push the boundaries of the trust to better adapt it to modern circumstances? Or do they threaten to break the institution of the trust altogether?

May 20, 2024 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, May 19, 2024

Technology—Probate - New Year, New Tech: Technology and Estate Planning

Estate planningBy this time of the year, our New Year’s resolutions may either be going strong or, more likely, have started to fade into a distant memory. Many professionals have vowed to embrace the mantra “work smarter, not harder” and find ways to become more efficient and prioritize tasks that move the needle. Achieving this goal can be easier said than done, but maximizing the use of both existing and new technologies is a great place to start. However, it’s crucial to find the ‘right’ technology tools, as the ‘wrong’ ones can make tasks take longer and create a more confusing process.

In the context of estate planning, utilizing the proper software tools can significantly streamline the process. For instance, estate document drafting software allows attorneys to save time, thereby freeing up more time for business development and client counseling. Comprehensive estate planning involves coordinating clients' assets and ensuring they pass on to the next generation in the most tax-efficient way. To educate clients effectively, attorneys may need to use various tools like flow charts, diagrams, and calculations. Automating these illustrations can help create efficiencies and consistency in client deliverables. Estate planning software like Vanilla®, eState Planner, and NaviPlan offer features such as net worth aggregation, liquidity analysis, and client information management to aid in this process.

Furthermore, estate planning software can assist in creating visual summaries and flow charts, making it easier for clients to understand their estate plans. Tools like Luminary, Vanilla®, and eState Planner provide dynamic visuals and customizable illustrations to depict clients' financial pictures and estate plans. Additionally, software such as Lucidchart and SmartDraw can help advisors create polished diagrams. There is a learning curve associated with these technologies, so it takes a while to learn but you save time later on. Despite some drawbacks and the need for thorough testing to find the best fit, leveraging these tools can ultimately save valuable time and enhance the efficiency of estate planning practices. As we aim to work smarter this year, investing time in selecting the right software will benefit both practitioners and their clients.

For more information see Ross Bruch and Margaret Weese "Technology—Probate - New Year, New Tech: Technology and Estate Planning" American Bar Association Probate & Property, May 8, 2024.

May 19, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Saturday, May 18, 2024

Corporate Transparency Act: Understanding the Act and Its Implications

Screenshot 2024-05-18 at 10.23.35 AMThe Corporate Transparency Act (CTA), enacted on January 1, 2021, as part of broad anti-money-laundering and antiterrorism measures taken by Congress, is set to take effect on January 1, 2024. The CTA requires certain business entities (each defined as a “reporting company”) to file, in the absence of an exemption, information on their “beneficial owners” and, in some cases, “company applicants” with the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury (Treasury). The information provided to FinCEN will not be publicly available, but FinCEN is authorized to disclose the information to certain agencies and other entities/persons.

At first blush, the CTA would not have large-scale implications on attorneys whose practices focus on real estate or trusts and estates. However, because of the large-scale use of holding companies involved in real property transactions and their common usage in holding assets indirectly owned by trusts, the CTA’s reporting obligations will likely apply to many, if not most, of these holding companies. The following article provides a general summary of the parts of the CTA, including which entities are considered reporting companies, how to identify a reporting company’s beneficial owners and company applicants, what information needs to be reported to FinCEN, when that information must be reported, and the penalties for non-compliance with the CTA.

The article goes into detail on what companies constitute a reporting company and exemptions under the act. It highlights certain more common exemptions like the Nonprofit Entity Exemption and the Subsidiary Exemption. 

For more information see Eric R. Tubbs "Corporate Transparency Act: Understanding the Act and Its Implications" American Bar Association Probate & Property, May 8, 2024.

May 18, 2024 in Estate Planning - Generally | Permalink | Comments (0)