FinPlanRN: Wills & Trusts (Topic)最新文献

{"title":"Basis of Grantor Trust Assets Before the Grantor's Death","authors":"Jeffrey N. Pennell","doi":"10.2139/SSRN.3319242","DOIUrl":"https://doi.org/10.2139/SSRN.3319242","url":null,"abstract":"The government’s Priority Guidance Plan includes an item whether §1014 new-basis-at-death should apply when the status of a grantor trust changes at the grantor’s death. The unstated assumption appears to be that assets transferred from a grantor to the grantor’s trust will have a carryover of the grantor’s basis prior to the grantor’s death. This essay addresses that notion, and whether a grantor’s transfer of assets into a grantor trust in what purports to be a sale or exchange transaction (that is, not a gift) causes the trust to instead have a basis equal to fair market value rather than a carryover basis. The shocking reality is that this question is not clearly addressed in the Code or Regulations, nor by jurisprudence, leaving unresolved the proper application of the basis rules and spawning no small amount of abuse or aggressive transactions.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125136831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Marr v Collie: The Ballooning of the Common Intention Constructive Trust","authors":"A. Georgiou","doi":"10.1111/1468-2230.12392","DOIUrl":"https://doi.org/10.1111/1468-2230.12392","url":null,"abstract":"The decision in Marr v Collie represents a significant expansion of the common intention constructive trust doctrine. Unsupported by authority, it relaxes the requirement that the property be acquired for a ‘domestic’ purpose, and widens the doctrine to encompass all property, whether real or personal. The decision's abrogation of the ‘purpose’ restriction redraws the line between the common intention constructive trust doctrine and the presumed resulting trust doctrine and expands the former to the greatest possible extent. This exacerbates a doctrine already apt to adversely affect both individual litigants and the justice system as a whole, and which creates incongruous theoretical divisions within the law of intentionally created trusts. As the doctrine is reliant on the proposition, unsupported by authority or legislation, that conveyance of a title to land into joint names necessarily gives rise to a trust, it is hoped that a future apex court will reconsider the doctrine's proper scope.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126752007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'So How Should I Presume': Loan, Resulting Trust, or Discharge of a Prior Obligation?","authors":"J. Mee","doi":"10.5040/9781509921409.CH-018","DOIUrl":"https://doi.org/10.5040/9781509921409.CH-018","url":null,"abstract":"What does the law presume when it is proven simply that one person has made a payment of money to another? Surprisingly, there are three candidate answers to this question. First, a number of nineteenth-century authorities hold that ‘when money is paid by one man to another the legal presumption is that it was paid in discharge of some prior debt or obligation’. Secondly, both Professor James Penner and Professor William Swadling have recently argued that proof that one person made a payment or other transfer to another is sufficient to trigger the presumption of resulting trust. Finally, the rule in Seldon v Davidson [1968] 1 WLR 1083 suggests that, in the absence of any other evidence, the payment would be categorised as a loan and the recipient would be liable to repay the debt. Obviously, it would not be coherent for the law to presume three different things – discharge of a prior obligation, a resulting trust, a loan – on the same basic facts. This chapter attempts to reconcile the apparently competing approaches by showing that they do not, in fact, apply in the same scenario. It is argued that the presumption of discharge of a prior obligation is the one that applies where all that has been proven is that a payment has been made by one person to another. The presumption of resulting trust, notwithstanding the views of Professors Penner and Swadling, is not triggered unless, in addition to the fact that a payment has been made, the claimant shows that the transfer was ‘voluntary’, ie made without consideration. Similarly, the rule in Seldon v Davidson is not properly to be regarded as being triggered simply by the making of a payment but must be understood as applying only where the evidence and the pleadings have reduced the possibilities to a choice between ‘gift’ and ‘loan’ (in which case the rule dictates that a loan is presumed). Having made these distinctions, the chapter moves from the analytical to the normative and, by way of conclusion, consider briefly the merits of the three different rules in order to assess whether they represent an appropriate legal response in the circumstances in which they apply. It is concluded that both the presumption of resulting trust in the context of a voluntary transfer and the rule in Seldon v Davidson lack a convincing justification and should be discarded.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116873468","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Estate Planner's Guide to the Uniform Partition of Heirs' Property Act","authors":"Gerry W. Beyer","doi":"10.2139/SSRN.3223963","DOIUrl":"https://doi.org/10.2139/SSRN.3223963","url":null,"abstract":"The Uniform Partition of Heirs' Property Act is designed to protect family members who receive land via intestacy or a will and own that property as tenants in common with other family members. The goals of the Act are laudable. However, a prudent estate planner must be aware that the UPHPA may apply in situations where at first glance it would appear that no compliance with the statute would be necessary. For example, if just two of ten cotenants are related, compliance with the UPHPA may be required. In addition, the UPHPA is highly complex containing many technical steps with rigid time requirements. Accordingly, practitioners must tread carefully when representing a plaintiff in a partition action. Likewise, judges must be vigilant as they maneuver the UPHPA to assure they are in compliance. This article provides an overview of the workings of the UPHPA.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124800467","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fiduciary Remedies","authors":"Samuel L. Bray","doi":"10.1093/oxfordhb/9780190634100.013.25","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780190634100.013.25","url":null,"abstract":"This chapter offers an overview and analysis of fiduciary remedies. The remedies considered are accounting for profits, constructive trust, equitable compensation, injunction, the unwinding remedies (e.g., rescission), and the supervisory remedies (e.g., instruction, removal). One point of emphasis is the close relationship between fiduciary duties and fiduciary remedies. The chapter also distinguishes the remedies of fiduciary law from those of agency. In addition, the chapter considers three major unsettled questions. First, are the remedial aims of fiduciary law distinct from tort and contract? Second, how should judges and scholars think about fiduciary remedies in light of the distinction between law and equity? Third, is punishment of an erring fiduciary a legitimate aim for fiduciary remedies?","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130910719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CRI-Leslie: Musings on Plain Meaning, Absurdity and Capital Gain","authors":"Jeffrey A. Galant, Dana L. Mark","doi":"10.2139/SSRN.3152387","DOIUrl":"https://doi.org/10.2139/SSRN.3152387","url":null,"abstract":"CRI-Leslie, LLC v Commissioner is a noteworthy case of first impression involving the interpretation of Internal Revenue Code Section 1234A. In CRI-Leslie the U.S. Tax Court and the Eleventh Circuit U.S. Court of Appeals held against capital gain treatment for proceeds received as a result of the cancellation of a contract involving the sale of property. However, the greater importance of these decisions may be the illustration of the methodology used by the courts to interpret the Internal Revenue Code. Or, more to the point, whether the courts were justified in relying on the plain meaning rule rather than the legislative history in determining what Internal Revenue Code Section 1234A means.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133312094","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Presumption of Resulting Trust and Beneficiary Designations: What's Intention Got to Do with It?","authors":"J. Chin, Archie J. Rabinowitz, Aoife Quinn","doi":"10.29173/ALR460","DOIUrl":"https://doi.org/10.29173/ALR460","url":null,"abstract":"When opening an RRSP or RRIF, investors typically designate a beneficiary. We expect that when making this choice, most investors intend that their designated beneficiary will indeed benefit from the investment on their death. If there is a dispute between the designated beneficiary and the investor’s estate, we further expect investors intend that their choice of beneficiary will prevail. Surprisingly, this is not the case in many provincial appellate courts, which in fact favour the estate in such disputes. More specifically, most Canadian courts apply the presumption of resulting trust to beneficiary designations: they assume, absent other evidence, that the designated beneficiary holds the proceeds of the RRSP or RRIF in trust for the deceased investor’s estate. Only Saskatchewan has taken a contrary position. The Alberta Court of Queen’s Bench in Morrison Estate (Re) recently weighed both options and endorsed the approach that applies the presumption of resulting trust.In this article, we analyze the doctrine of resulting trust, its rationale as presented by several leading cases, and empirical evidence evaluating the intentions of Canadian investors. We conclude that applying the presumption of resulting trust to beneficiary designations betrays both the theory and purpose of the presumption. It also runs counter to the intentions of most Canadians and creates uncertainties in millions of beneficiary designations. Finally, we present several solutions for bringing the law in line with the intentions of investors and, indeed, common sense.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123216277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fiduciary Financial Advisers and the Incoherence of a 'High-Quality Low-Fee' Safe Harbor","authors":"Max M. Schanzenbach, Robert H. Sitkoff","doi":"10.2139/SSRN.2661833","DOIUrl":"https://doi.org/10.2139/SSRN.2661833","url":null,"abstract":"Americans now hold trillions of dollars in individual retirement savings accounts. Concerned about conflicts of interest among financial advisers who provide advice to retirement savers, the Department of Labor has proposed imposing fiduciary status and a \"best interest\" standard on such advisers. To ameliorate the resulting compliance costs, the DOL has also raised the possibility of a safe harbor for certain \"high-quality low-fee investments.\" However, the notion of a \"high-quality\" investment is in irreconcilable tension with the highly individualized assessment of risk and return that is required by modern portfolio theory, the well-accepted concept from financial economics that has been codified in the \"prudent investor rule\" as the standard of care for fiduciary investment. This policy incoherence is worrisome because of the potential for the safe harbor to swallow the best interest standard.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130181420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"2015 Texas Estates Code with Commentary","authors":"Gerry W. Beyer","doi":"10.2139/SSRN.2638916","DOIUrl":"https://doi.org/10.2139/SSRN.2638916","url":null,"abstract":"This document contains the Texas Estates Code showing all changes made by the 2015 Texas Legislature. The changes, most of which take effect on September 1, 2015, are shown in red-lined format for easy comparison of the prior and new versions of the statutes. I have included commentary entitled Statutes in Context to many sections. These annotations provide background information, explanations, and citations to key cases which should assist you in identifying the significance of the statutes and how they operate.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124597499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Economic Analysis in Fiduciary Monitoring Disputes Following the Supreme Court's 'Tibble' Ruling","authors":"D. Heavner, Susan M. Mangiero","doi":"10.2139/SSRN.2630462","DOIUrl":"https://doi.org/10.2139/SSRN.2630462","url":null,"abstract":"Fiduciary monitoring has become a hot topic as a result of the U.S. Supreme Court’s decision in Tibble v. Edison International, according to recent expert insights published by Analysis Group Managing Principal D. Lee Heavner and Fiduciary Leadership LLC Managing Director and Analysis Group affiliate Susan Mangiero. The Tibble ruling, which stated that plan fiduciaries have a responsibility to monitor investments and remove imprudent ones, is important because of the amount of assets in ERISA retirement plans – approximately $7 trillion as of 2012, according to the U.S. Department of Labor. This decision also comes against a backdrop of growing ERISA litigation. In 2014 alone, ERISA litigation settlements exceeded $1.4 billion, according to Benefits Pro, and this amount excludes the substantial legal costs of defending the cases. In the recent article “Economic Analysis in Fiduciary Monitoring Disputes Following the Supreme Court’s ‘Tibble’ Ruling” (Bloomberg BNA’s Pensions & Benefits Daily, June 24, 2015), Dr. Heavner and Dr. Mangiero explain that what constitutes a reasonable monitoring process may be influenced by plan- and investment-specific factors, as well as by the expected benefits and costs of different monitoring activities. “The monitoring of investments is a broad and complex topic. There is no uniform process that is appropriate in every situation. To the contrary, the list of potentially relevant risk factors is long and subject to revision as circumstances change.” The authors also discuss how complexities arise when calculating economic damages due to the wide array of alternative actions and the substantial variation in timing that may be consistent with a prudent monitoring process.“These are important issues that plan sponsors, fiduciaries, and ERISA lawyers and experts will have to address if, as expected, further challenges to fiduciary monitoring of investments emerge post-Tibble,” said Dr. Heavner.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"38 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120997284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}