Wills, Trusts & Estates Prof Blog

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

Tuesday, May 14, 2024

Uniform Laws Update - Conflict of Laws in Trusts and Estates

Estate-planning-967badd135bb43889abcea181ddaf72cThe Uniform Laws Update in Probate & Property highlights the evolving landscape of estate planning, which has shifted from primarily local to encompassing multiple jurisdictions due to increased mobility, changing wealth structures, and evolving state laws. With families relocating frequently and wealth being more fluid, estate plans often need to consider laws from various states. Moreover, the emergence of trust-friendly legislation in certain states has led to the strategic selection of trust jurisdictions, adding complexity to the choice of governing laws. Consequently, conflicts of laws have become more common, as litigators seek favorable forums for resolving disputes involving trusts with connections to multiple states.

Section 107 of the Uniform Trust Code delineates guidelines for resolving conflicts within trust matters, emphasizing that the determination of a trust's terms relies on the law of the designated jurisdiction, unless contrary to a strong public policy of the jurisdiction most relevant to the matter or in the absence of such designation, the law of the jurisdiction with the most significant relationship to the issue prevails. However, phrases like "strong public policy" remain ambiguous, leaving courts to interpret these terms. Meanwhile, the Restatement (Second) of Conflict of Laws offers more defined rules, though its antiquated framework fails to address modern complexities, such as the rise of trusts governed by laws from distant jurisdictions. This complexity extends beyond trusts to the realm of wills and probate procedures, prompting initiatives like the drafting of the Restatement (Third) of Conflict of Laws by the American Law Institute (ALI) and the Uniform Law Commission's (ULC) creation of a new uniform act on conflict of laws in trusts and estates. Collaboration between ALI and ULC aims to synchronize efforts and ensure coherence in legal outcomes, which is crucial given the significant assets held in trusts and the extensive time estate planners invest in navigating jurisdictional laws.

David Lieberman, a partner at Levin Schreder & Cary in Chicago, serves as the ABA Advisor for the project, facilitating communication between the drafting committee and American Bar Association (ABA) members. The drafting committee prioritizes respecting donors' autonomy in selecting governing laws while endeavoring to simplify conflict laws by minimizing distinctions between types of property and trusts and streamlining the application of laws in construction and interpretation matters. Nonetheless, the complexity of the subject necessitates thorough deliberation, with both ALI and ULC welcoming stakeholder input as they strive to produce comprehensive and impactful legal frameworks that address the intricacies of today's legal landscape effectively.

For more information see Benjamin Orzeske “Uniform Laws Update - Conflict of Laws in Trusts and Estates”, American Bar Association Probate & Property, May/June 2024.

May 14, 2024 in Estate Planning - Generally, New Legislation, Trusts, Weblogs | Permalink | Comments (0)

Friday, January 1, 2016

Preemptive Strike Against Will Contest May Be Best Move For Some

GavelWhen a person intends to leave large gifts to people that are not their close family members after death they are often in fear that a legal challenge will arise. In a recent case that is discussed by my fellow blogger Kyle Krull, a women left several million dollars to her gardener and took preemptive measures to make sure that estate plan held up. In that case, the measures included providing funds to fight any court battle and evaluation by a psychologist stating that she was mentally competent. However, there are some additional steps that can be taken including meeting with the family member(s) that will be taking less or excluded from the bequest since many people go to court more for their side of things to be told than any expectation of winning. In addition, some states offer ante-mortem probate which allows the will to go through the court system before the testator dies thus preventing post death challenges. In any event, if a legal battle is anticipated it is best to use a grab bag of preventative measure to make sure the estate passes they way the property owner intends.

See Kyle Krull, The Butler Did It, But the Gardner Inherited It, Kansas Missouri Estate Planning Blog, December 29, 2015

January 1, 2016 in Estate Planning - Generally, Weblogs | Permalink | Comments (0)

Monday, December 21, 2015

Insights Into The Chan Zuckerberg Initiative

KeyboardBillionaire Facebook founder Mark Zuckerberg recently made headlines when he and his wife Dr. Priscilla Chan announced that they were transferring the bulk of their Facebook stock to a specially created LLC. The Chan Zuckerberg initiative has a stated goal to provide philanthropic grants and take part in political action roles. However, this initiative is unlike many other entities used by those wanting to provide big dollar philanthropy and will allow a much different level of money management than other charitable vehicles. For excellent insight into the ins and outs of the initiative, check out an insightful post by Ellen P. Aprill over on the Tax Professors Blog which can be found here.

December 21, 2015 in Current Affairs, Weblogs | Permalink | Comments (0)

Tuesday, December 15, 2015

In New York, Leases Are Estate Assets Sometime Capable Of Being Inherited

WillsIn New York, leases are capable of being passed through an estate the same as a piece of property. This is due to a mishmash of laws ranging from the state which grants estate asset status to lease to the local such as New York City's ancient rent control law which allows the lease to continue through the generations until broken. As a result, both sets of laws must be consulted to get a full grasp of what can and cannot be passed down. However, there are a couple of rules that will almost always come into play. The person who will inherit the lease must have cohabited with the lessee for a set period of time  and have a familial or interdependent relationship within certain specific statutory circumstances. While not every client will have a lease that can or will be passed through an estate, for those that do it is crucial that the specific requirements are met because a lease might have as much value as assets owned in fee simple by an estate and can be lost if proper procedure is not followed.

See Ettinger Law Firm, Inheriting A Lease, New York Estate Planning Blog, December 12, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

December 15, 2015 in Estate Planning - Generally, Weblogs | Permalink | Comments (0)

Monday, December 14, 2015

Debate Arises In Vermont Over Allowing Adjustments To Conservation Easements

NatureIn Vermont, a debate has flared up concerning the ability of the landowners and the state to amend perpetual conservation easements. These easements are created by property owners that want a portion of their land to be preserved in the same state of nature as when the conveyance was made and have, up until now, proved difficult to alter once recorded. However, these easements have caused controversy as later owners of the property generally want full use of the land especially when the easement gets in the way of development. In response, a plan was put forward by a prominent conservation group which would have allowed a state board to adjust easements as long as the adjustment was made with the overall goal of furthering conservation. However, opponents were quick to point out that the plan gave tremendous leeway to the state to override the wishes of the property owners that established the easements and end up with results wildly out of sync with the intent of the creator. In the end, the proposal did not gain much traction but this issue will remain in the minds of many and will likely lead to further action down the line in Vermont, and elsewhere, due to the 40 million acres of land in the US that are currently protected in this manner.

See John Echeverria & Janet Milne, PROTECTING VERMONT’S PERPETUAL CONSERVATION EASEMENTS, VT Digger, December 6, 2015.

Special thanks to Nancy A. McLaughlin for bringing this article to my attention.

December 14, 2015 in Current Affairs, Trusts, Weblogs | Permalink | Comments (0)

Friday, November 20, 2015

Texas Appeals Court Rules That Offering An Invalid Will Can Be Basis For Criminal Charges

HanduffsA battle of over the estate of a wealthy socialite captivated Dallas for a number of years as two antique dealers sought to have a will probated that left them a multi-million dollar house but was signed eight days before the death of the testator. After a court found the will invalid, criminal charges were brought and resulted in the dealers being convicted for attempted theft of property. However, the dealers challenged the conviction arguing that the attempted probate of an invalid will is not a criminal act. But the Dallas Court of Appeals held that the criminal charge only required a showing of intent to steal from those that have a legal right to the inheritance. A good faith will contest will not lead to criminal charges and it was the specific facts of this case which supported the prosecution. Now, it will be a matter of time to see if this ruling will lead to more prosecutions of those that try to probate a will in bad faith.

See J. Michael Young, When offering a will can lead to criminal charges, Texas Probate Litigation, November 19, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

November 20, 2015 in Current Affairs, Current Events, Weblogs | Permalink | Comments (0)

Wednesday, October 28, 2015

A Review Of The Good Wife From The Perspective Of An Estate Planner

ArticleMy fellow blogger Jeffrey R. Gottlieb at the Illinois Estate Planning Blog has posted a review of the season premier of the CBS drama The Good Wife and its relationship to real world probate issues. The article can be found here and it an excellent read no matter if you are a fan of the show or not. One little warning though, if you are not caught up on the new season there are spoilers aplenty so make sure you get caught up before reading this great article.

October 28, 2015 in Estate Planning - Generally, Weblogs | Permalink | Comments (0)

Monday, October 19, 2015

Bay Area Wills, Trusts, And Probate Blog Is Back Online!

KeyboardThe Bay Area Wills, Trusts, and Probate Blog written by Karen Meckstroth is back online! The first post is about the California End of Life Option Act which was recently passed and allows physician assisted suicide in certain circumstances. I would like everyone to join me in welcoming back Karen with her superlative blog by checking out her new post!

October 19, 2015 in New Legislation, Weblogs | Permalink | Comments (0)

Monday, August 31, 2015

In Canada, Bequests In A Will May Be Voided If Against Public Policy

CanadaWhen Harry Robert McCorkill died, he left a bequest in his will to an organization that was devoted to the cause of white supremacy. As a result, his sister challenged the gift by invoking the Canadian rule that gifts in a will that are against public policy may be voided. In McCorkill v. Streed, the court held that the gift was against public policy and voided the gift. The court stated that "against public policy" was to be construed as embodying the morals of the time and may be read as prohibiting gifts against the interest of society. Based on the prevailing anti-discrimination attitude, embodied in Canadian law and constitution, the gift was void because it provided funds to an organization whose sole aim was discriminatory.

See Stan Rule, Gifts Void Against Public Policy: McCorkill Estate, Rule of Law Blog, August 23, 2015.

Special thanks to Jim Hillhouse for bringing this article to me attention.

August 31, 2015 in New Cases, Weblogs, Wills | Permalink | Comments (0)

Thursday, May 21, 2015

Newest Amendments To The Florida Probate And Trust Code

Florida_signThe 2015 amendments by the Florida legislature to the Trust and Probate Code are now available. The changes include rules on reasonable charges for attorneys fees and cost to an estates or trust, a lawyers fiduciary duties while serving as a trustee, personal service on entities assigned to administer an estate, and what notice of administration must be filed. If you work in anyway with Florida wills and trust then this article is a must read.

See Brian Spiro, 2015 Amendments to Florida Probate Code and Florida Trust Code, Clark & Skatoff, May 19, 2015.

May 21, 2015 in Estate Planning - Generally, New Legislation, Trusts, Weblogs, Wills | Permalink | Comments (0) | TrackBack (0)