Category Archives: Trusts & Estates
Mar 25, 2016 Browne LewisTrusts & Estates
Some multi-parent families are created by law and others are created by science. California and a few other states have acknowledged that a child can have more than two legal parents. Professor Daar calls these multi-legal families or families in law. In their quest to serve their patients, physicians seek ways to enable infertile couples to have healthy children. Those doctors make their “treatment” decisions without considering the legal consequences of their actions. For example, in an attempt to lessen the possibility of a child inheriting a medical ailment from his or her mother, doctors may replace unhealthy mitochondrial with material obtained from the oocyte of a healthy female. The use of this mitochondrial manipulation technology (MMT) may result in a child being conceived using an oocyte containing mitochondrial DNA from two women. Professor Daar refers to this as a multi-genetic family or a family in genetics. Numerous articles and books have been written about multi-parent families. Most of the scholarly literature discusses the family law issues that arise because of the existence of these types of families. In her article, Professor Daar goes in a different direction. She focuses upon the impact that the recognition of multi-parent families may have on the intestacy system.
Professor Daar makes the distinction between legal parents and genetic parents. She explores the steps that can be taken in order for the intestacy system to accommodate multi-legal families. In multi-legal cases, more than two persons have been adjudicated as the child’s legal parents. The article also discusses the intestacy system’s treatment of multi-genetics families. In those situations, even though the parents and the children are related by genetics, their relationships may not be legally recognized. Professor Daar examines the manner in which the children and adults in these families may be treated under the intestacy system. Professor Daar analyzes the options of including multi-parent families under existing intestacy systems, creating new intestacy schemes to accommodate them, or excluding multi-parent families from the intestacy system. Professor Daar analyzes the treatment of multi-parent families under the existing intestacy system. As a part of that analysis, she compares multi-legal families to other nontraditional families. With regards to multi-genetic families, Professor Daar evaluates the treatment of families that are connected to the decedent by blood. Continue reading "Making Connections"
Mar 11, 2016 Lynda Wray BlackTrusts & Estates
Traditionally, irrevocable trusts have been, well, irrevocable. The terms of the trust are fixed and the life of the trust cannot be cut short. Whether irrevocability emanates from the trust document itself or from circumstances such as the settlor’s death or incapacity, traditional irrevocability tied the hands of those interested in modifying the trust to accommodate changes in circumstances. Irrevocability was the doctrine through which the settlor could maintain control of the trust property throughout the life of the trust. Trust law acknowledges the tension between the original intent of the settlor’s dead-hand control and the current desires of the beneficiaries. As this tension is being resolved by greater accommodation of the current beneficiaries’ desires, has the doctrine of irrevocability lost its relevance?
In his recent article entitled Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of “Irrevocable” Trusts, Dean Richard Ausness proposes a compromise. The first generation of trust beneficiaries would remain subject to the traditional rules disfavoring modification and early termination of trusts; subsequent generations of trust beneficiaries, however, would possess a liberating ability to modify a trust without court approval. The language of irrevocability would have renewed life, but only a short life. Continue reading "How to Bolster the “Ir” in Irrevocable"
Feb 25, 2016 Anne-Marie RhodesTrusts & Estates
Mary F. Radford, Predispute Arbitration Agreements Between Trustees and Financial Services Institutions: Are Beneficiaries Bound?, 40 ACTEC L. J. 273 (2014).
Disputes are a persistent reality of trust law and even the most meticulously-drafted and expertly-administered trust can be embroiled in litigation, often involving trust investments. In an effort to avoid litigation, many investment advisors and banks include in their routine account agreements, provisions requiring arbitration in the event of any dispute. When a trustee opens an account that contains a mandatory arbitration provision, are the beneficiaries also bound?
Professor Mary Radford delves deep into the practice, cases, and theory of predispute arbitration provisions. Her discerning and experienced eye expertly distills the essence of a trustee’s fiduciary responsibilities with the practical realities of investing in the 21st century. This article appealed to me because it offers a thoughtful, sophisticated, and wide-ranging look at an increasingly common provision. At a time that arbitration clauses are under review, the article connects trust law to the wider world; it is a good example of the law as “seamless web.” Continue reading "Enforceability of Predispute Arbitration Provisions"
Jan 28, 2016 Tom SimmonsTrusts & Estates
Kai Lyu explains some of the unique characteristics of Chinese trust law in Re-Clarifying China’s Trust Law: Characteristics and New Conceptual Basis. China’s civil law basis makes for a strange soil in which to transplant (and codify) a common law concept such as the law of trusts, which owes its origins to Medieval England. But other jurisdictions (Japan and South Korea, for example) have adopted trust law without generating the odd mutations that China has. What happened and how can one approach an understanding of the unique creation that is Chinese trust law?
The two principle unorthodoxies with trust law in China are the ambiguous title to the trust res and the almost unrestrained retained powers of a settlor that the 2001 trust act (enacted by the National People’s Congress after two false starts in 1996 and 2000) generated. Lyu grounds the thinking of the Chinese legislators in the law of contracts, and identifies how contract law falls short as a theory in explaining trusts, even—or perhaps especially—Chinese trusts. Instead, Lyu proposes, Roman law’s patrimony theory provides a lens for understanding the unique characteristics of Chinese trust law. Continue reading "Mapping Chinese Trusts with a Patrimony Compass"
Dec 15, 2015 Camille DavidsonTrusts & Estates
Bridget J. Crawford and Anthony C. Infanti,
A Critical Research Agenda for Wills, Trusts, and Estates, 49
Real Prop. Tr. & Est. L.J. 317 (2014), available at
SSRN.
A Critical Research Agenda for Wills, Trusts, and Estates by Professors Bridget J. Crawford and Anthony C. Infanti is a ”must read” for wills, trusts, and estates practitioners and scholars. The authors highlight key contributions in the category they loosely refer as “critical trusts and estates scholarship” and challenge each of us to add our voices to these important issues. Some of the works that Crawford and Infanti highlight were written by trusts and estates professors, others were penned by professors who teach in other areas of the law, and some are even authored by non-lawyers.
Crawford and Infanti remind us that issues of race, gender, sexual orientation, socio-economic class, and disability should not be relegated to just a passing reference in scholarly works. As both scholars and practitioners, we need to examine how and why the law has developed the way that it has, and how historically disenfranchised groups have been affected. The variety of works highlighted by Crawford and Infanti reminds us that even in the “money” area of law—“tax and wills,” there are critical issues that need to be discussed inside and outside of the legal academy. Continue reading "Can We Talk? Wills, Trusts and Estates Critical Issues that Are Ripe for Discussion"
Nov 18, 2015 Michael YuTrusts & Estates
Wendy C. Gerzog,
What’s Wrong with a Federal Inheritance Tax, 49
Real Prop., Tr. & Est. L.J. 163 (2014), available at
SSRN.
Professor Wendy Gerzog has written a thought-provoking article reviewing inheritance tax systems both in the United States and abroad, and then Professor Lily Batchelder’s proposed comprehensive inheritance tax (CIT). Professor Gerzog has three principal criticisms of inheritance tax systems: (1) they inequitably tax the recipient based on the closeness of relationship to the donor or decedent (which rationale is “neither a good measure of ability to pay nor an effective means of wealth redistribution,”); (2) they lack a gift tax back-up; and, (3) they apply to more individuals, increasing administrative costs and decreasing compliance rates. (P. 200) As to Professor Batchelder’s CIT, Professor Gerzog supports its elimination of the “disparity of burdens for some beneficiaries under the current transfer system” and its solving “the problems of timing and valuation abuses that involve actuarial problems,” but Professor Gerzog contends that the CIT “engenders its own problems”: (1) increased family wealth; (2) increased valuation abuse; (3) increased recordkeeping costs; (4) increased compliance problems; and, (5) increased complexity. (P. 201.) Professor Gerzog concludes that “the transfer tax system works relatively well and has significant practical and theoretical advantages over a federal inheritance tax or a CIT.” (P. 201.)
Professor Gerzog believes that basing tax rates on a decedent’s relation to a beneficiary is “objectionable on fairness considerations.” (Pp. 164-165.) Given that most wealthy decedents leave their property to other wealthy individuals and the majority of beneficiaries are the decedent’s close relatives, there are comparatively few estates with non-relative heirs, and “no policy rationale supports subjecting those few unrelated individuals to either a higher or a lower tax rate.” (P. 165.) Professor Gerzog contends that an inheritance tax with greater tax rates when there are “a fairly small number of the beneficiaries” or “a distant familial relationship … of the decedent’s beneficiaries” “cannot realistically achieve the reduction of concentrated family wealth and its associated power.” (P. 166.) Continue reading "Theoretical and Practical Concerns in Moving to a Federal Inheritance Task"
Oct 14, 2015 Alexander Boni-SaenzTrusts & Estates
Trusts and estates scholarship typically focuses on the rich. This is not surprising, as the field primarily concerns itself with wealth transmission, and the wealthy are the ones who have wealth to transmit. In Making Things Fair, Professor Naomi Cahn and Amy Ziettlow inject class into the field by examining how lower-income individuals understand the wealth transmission process. This is a valuable and much-needed intervention, both for its empirical methodology and its focus on the lived experiences of lower-income Americans.
This article contributes on three fronts. The first contribution is empirical. The investigators recruited study participants by searching Baton Rouge newspaper obituaries, from which they compiled the names of children and step-children of recently deceased individuals under the age of 70 within a 7-month period in 2011. Of these 2,700 individuals, they gathered reliable contact information for 1,500 of them, and invited these to participate in the study by snail mail, email, and telephone. Their final sample size was sixty-three, appropriate to a qualitative and exploratory study of this type. The study used semi-structured interviews to delve into family dynamics, the dying process, and wealth transmission. Continue reading "Injecting Class into Trusts and Estates"
Sep 15, 2015 Kent D. SchenkelTrusts & Estates
Law professors strive to stimulate student thinking not only about what the law is but also about law’s potential—what the law might or should be. In a conventional doctrinal law school class such considerations are likely to supplement, not supplant, teaching the law as it exists and is applied. But the conventional approach turns out to be surprisingly controversial, at least in the wills and trusts arena. Some wills and trusts professors choose to focus exclusively on model rules, many of which are not widely adopted. Conceived this way, the wills and trusts course is, “to a certain degree, detached from reality.” So writes Professor Adam Hirsch, in his concise and pithy contribution to the Saint Louis Law Journal’s symposium on teaching wills and trusts law, Teaching Wills and Trusts: The Jurisdictional Problem.
Wills and trusts laws, like those in many other areas, are primarily state laws that often vary across jurisdictional lines; a fact that inconveniences lawyers, confuses law students and frustrates law professors. How to deal with this predicament? We cannot, concedes Hirsch, teach the law of all fifty states. And teaching the law of only one jurisdiction, even in the “regional” law school, will not do either. Although students may be well prepared to take the local bar examination, they will suffer in seeking employment outside the jurisdiction, and will take an overly narrow view. And in the “top, nationally-recognized law schools,” to teach one jurisdiction’s law would be, writes Hirsch, “outlandish.” Students attending these (and many, if not most, other law schools) scatter widely upon graduation, making such an approach “pointless and arbitrary.” Continue reading "What Law Should We Teach?"
Aug 3, 2015 Phyllis C. TaiteTrusts & Estates
Those who practice in estate planning and probate law know all too well the problems associated with outdated plans. Specifically, we are frequently left to deal with disappointed family members who were expecting to receive certain property, only to find that, intentionally or unintentionally, the decedent did not include them. Statutes such as the elective share give surviving spouses protections against intentional omissions. Surviving spouses also benefit from rules of construction, such as pretermitted spousal share, and statutory protections, such as divorce revocation laws, that provide protection from unintentional omission based on stale plans. However, despite state efforts to protect them, surviving spouses remain vulnerable to stale beneficiary designations in life insurance policies and pension plans subject to federal regulation because of federal preemption.
Professor Langbein artfully challenges the long-standing principle of federal preemption of beneficiary designation in a pension plan or life insurance policy subject to federal regulation under the Employee Retirement Income Security Act (“ERISA”) or Federal Employees’ Group Life Insurance Act (“FEGLIA”). Specifically, he challenges the reasoning and policy merits of federal preemption as applied to state divorce revocation statutes by providing a critical analysis of Hillman v. Maretta, 133 S. Ct. 1943 (2013) and Egelhoff v. Egelhoff, 532 U.S. 141 (2001). Continue reading "Is Federal Preemption in Beneficiary Designation Cases Part of the Problem or Solution?"
Jun 30, 2015 Paula MonopoliTrusts & Estates
We often get so caught up in the nooks and crannies of small corners of the doctrinal universe, examining tiny subsections of the Uniform Probate Code or the Uniform Trust Code with microscopic scrutiny, that we often forget about the big picture in our field. Deborah Gordon takes us back to that macro level in her thoughtful article, Letters Non-Testamentary. Like Daphna Hacker’s Soulless Wills, 35 Law & Social Inquiry 957 (2010), this article reminds us about the expressive dimension of inheritance law.
Gordon’s research focuses on language, emotion and gender in inheritance law. She began this work in her previous article, Reflecting on the Language of Death, 34 Seattle U. L. Rev. 379 (2011) and her new article continues this theme. It considers the connection between letters written in anticipation of death that are not valid testamentary instruments and their impact on inheritance law as a whole. Continue reading "Exploring the Expressive Dimension of Inheritance Law"
