FinPlanRN: Wills & Trusts (Topic)最新文献

{"title":"Decoupling the Law of Will-Execution","authors":"M. Glover","doi":"10.2139/ssrn.2341748","DOIUrl":"https://doi.org/10.2139/ssrn.2341748","url":null,"abstract":"The law of will-execution includes two related but distinct components. The first is formality, including the requirements that a will be written, signed, and witnessed. The second is the standard that courts use to evaluate compliance with these formalities. Courts traditionally apply a rule of strict compliance, under which any formal defect invalidates the will. Fueled by longtime criticism of this rule, an ongoing reform movement seeks to relax the law’s insistence on strict compliance. However, despite broad support within the legal academy, this reform effort has been slow to instigate change.This Article argues that the reform movement’s struggles can be explained in part by the way that scholars evaluate the need for reform. When analyzing this area of law, they typically ask two questions: (1) What are the functions of will formalities? and (2) How can the law be changed so that these functions are better served? By focusing on formality’s purpose, the reform movement overlooks the purpose of strict compliance, and it therefore fails to clearly identify the costs and benefits of reform.Just as will formalities serve specific functions, the rule of strict compliance also serves various functions. The loss of these functions is a potential cost of reform that the reform movement disregards when it focuses on formality. This Article therefore illuminates the utility of reform by clearly identifying the functions of strict compliance and by analyzing whether these functions justify the rule’s place in the law of wills. This analysis clarifies the costs and benefits of reform and ultimately refines the argument in favor of change.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121632254","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 Networking Dead: An Attempt to Define Statutory Third-Party Publicity Rights in Digital Estates","authors":"Mark A. Morenz-Harbinger","doi":"10.2139/ssrn.2230028","DOIUrl":"https://doi.org/10.2139/ssrn.2230028","url":null,"abstract":"With the advent of social networking, one’s online identity and their personal information become embedded within the online personas of others. One problem of digital estates is this: Consider the personal information of third-parties such as: i) families of the deceased concerned with privacy, or ii) those consociates who have “friended” the deceased online or who, perhaps, are the subject-matter of the deceased’s copyrighted content, e.g., such as photographs. How is that shared information of those parties protected, even after the deceased has passed? In Europe, there are “fair information practice” standards codified by law. Regardless of whether the information is held by the government or private entities, European citizens have legal rights to prevent their personal information from being misused. The United States has no such comprehensive protection for its citizens.Nor will contract law provide U.S. citizens comparable substantive rights under a third-party beneficiary theory. The law of torts will instead be explored to clarify the public policy rationales that have been successful in underpinning privacy and limitations over publication of personal information. But, also and especially, the law of property will be investigated. This is in line with leading scholars who have posited that property interests could be a viable way to internalize the costs of information to those who would primarily benefit from that information. In Part I, we define the “third-parties” whose interests are at issue by tying the concept to those whose personally identifiable information has been captured. In Part II, we analyze the existing obstacles and loopholes that serve to vitiate end-users rights to their own data. We also propose that at least one way to avoid those pitfalls is to formalize a property right in a person’s data from the onset. In Part III, we analyze certain exemplars which can be used to fashion a better regulatory scheme, based on such a property right. Part IV concludes, while an appendix contains a sample code wherein a jurisdiction might attempt to implement our suggested solution.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127253893","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":"Trust and Fiduciary Law","authors":"M. Harding","doi":"10.1093/OJLS/GQS025","DOIUrl":"https://doi.org/10.1093/OJLS/GQS025","url":null,"abstract":"How can it be that the fiduciary relationship has trust at its core if trust is neither a necessary nor a sufficient condition for the existence of such a relationship? My aim in this article is to make some arguments that I think might assist in solving that puzzle. First, I argue that fiduciary relationships are likely to be characterized by relatively ‘thick’ interpersonal trust. Secondly, I argue that moral duties referring to trust play a role in the justification of fiduciary duties, but that the role of trust in the underlying moral duties is contingent, yielding only a contingent connection between trust and fiduciary duties. Finally, I argue that a goal of fiduciary law should be enabling and supporting trusting relationships, but that this goal should be viewed within a broader liberal outlook according to which fiduciary law also enables and supports relationships on terms of detachment.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"801 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133229948","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":"Phillips v Royal Society for the Protection of Birds: Construction of a Gift to a Dissolved Charitable Company","authors":"J. Picton","doi":"10.2139/SSRN.3054916","DOIUrl":"https://doi.org/10.2139/SSRN.3054916","url":null,"abstract":"Even the best laid plans can go wrong, and where a charitable bequest turns out to be impossible to effect, the law must construct the will in order to decide how the testator’s gift can best be distributed. In Phillips v Royal Society for the Protection of Birds, an executor requested instructions from the High Court after finding that a charitable company nominated in the will had dissolved after the testatrix’s death, but before he was able apply the gift. This note analyses the rules of construction as they were applied to complex facts and considers the wider impact of the judgment.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122391011","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":"Wilderness No More: Alaska as the New 'Offshore' Trust Jurisdiction","authors":"Jonathan G. Blattmachr, Bridget J. Crawford","doi":"10.14296/AC.V1999I22.1424","DOIUrl":"https://doi.org/10.14296/AC.V1999I22.1424","url":null,"abstract":"Alaska has made two sweeping reforms to its trust laws in an effort to position itself as the most sophisticated \"offshore\" trust jurisdiction for wealthy U.S. citizens and non-U.S. persons holding substantial U.S. property or stock. This article describes Alaska's departure from the venerated (if misinterpreted) rule against perpetuities and illustrates how the new Alaska law effectively allows taxpayers to make their own decision about the level at which a trust will be taxed. This article also details Alaska's approach to self-settled spendthrift trusts. In certain circumstances, an existing or future creditor will be prevented from satisfying a claim out of a trust even to the extent of any interest retained by the grantor in the trust. The article concludes by comparing Alaska self-settled trusts to those in other offshore jurisdictions and suggests that Alaska may be the jurisdiction of choice for some taxpayers.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122894920","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":"New Life for the Death Tax Debate","authors":"E. Carter","doi":"10.2139/ssrn.2033176","DOIUrl":"https://doi.org/10.2139/ssrn.2033176","url":null,"abstract":"This article examines the ascendancy of wealth redistribution as the policy underpinning the federal estate tax through the lens of sociology and argues that, by attempting to ensure equal access to the American dream by penalizing only those who have fulfilled its promise, the federal estate tax places fundamental American values in irreconcilable conflict. The reason that the current system does not work, I argue, is rooted more in history and sociology than it is in economics. The solution is not necessarily the repeal of the federal estate tax. Nor is the solution replacing the estate tax with an inheritance tax, an accessions tax or taxing inheritances as income, as proposed by other commentators. The estate tax plays — or should play — an important role in ensuring vertical and horizontal equity in our federal tax system. Perhaps more importantly, it also has the potential to provide a safety net of revenue during times of exigency — such as that currently faced by our nation. In order to achieve these goals, however, we must first correctly recognize the fundamental problem with the current system. When the history of the tax is examined from a sociological and historical vantage point, the real problem is clear.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114250850","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 Estate Planning Legislative Update","authors":"Gerry W. Beyer","doi":"10.2139/SSRN.2638914","DOIUrl":"https://doi.org/10.2139/SSRN.2638914","url":null,"abstract":"This article reviews the highlights of the legislation enacted by the 2015 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. Some of the key topics include judicial modification and reformation of unambiguous wills, trust protectors, and the Texas versions of the Uniform Real Property Transfer on Death Act and the Uniform Disclaimer of Property Interests Act.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"192 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116401667","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":"Changes to the Romanian Civil Code: Fiducia – The Romanian Concept of Trust","authors":"Florentin Giurgea","doi":"10.2139/SSRN.2037041","DOIUrl":"https://doi.org/10.2139/SSRN.2037041","url":null,"abstract":"The New Romanian Civil Code came into force on 1 October 2011. It regulates for the first time fiducia, a mechanism similar to some extent to the common law concept of trust. Fiducia is the legal relationship by which one or more settlers transfer present or future rights to one or more trustees. The paper offer some brief insights on the aspects regarding: the trustee; registration procedures; insolvency; termination of fiducia; and conflict rules applicable to fiducia.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131321481","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":"Avoid Being a Defendant: Estate Planning Malpractice and Ethical Concerns","authors":"Gerry W. Beyer","doi":"10.2139/SSRN.1850188","DOIUrl":"https://doi.org/10.2139/SSRN.1850188","url":null,"abstract":"An estate planner may become a defendant in a case involving an estate he or she planned in two main ways. First, the attorney may have performed his or her services in a negligent manner potentially creating exposure to malpractice liability. Second, the attorney’s conduct may have lapsed below ethically acceptable standards.This article reviews the exposure an estate planner may have to malpractice liability with emphasis on Texas law and then focuses the reader’s attention on ethical issues that may arise while preparing or executing the plan. I hope that by pointing out potentially troublesome areas, the reader will avoid the ramifications of drafting a flawed estate plan or having a lapse of ethical good judgment which may lead to the frustration of the client’s intent, financial loss to the client or the beneficiaries, personal embarrassment, and possible disciplinary action.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129491384","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":"A Well-Reasoned But Incorrect QDRO Decision Pertaining to Life Insurance Payments from an ERISA Plan","authors":"A. Feuer","doi":"10.2139/ssrn.1467201","DOIUrl":"https://doi.org/10.2139/ssrn.1467201","url":null,"abstract":"In Metropolitan Life v. Drainville, 2009 U.S. Dist. LEXIS 63613 (DC R.I. July 23, 2009), a federal district court in Rhode Island recently explained the requirements that a domestic relations order (\"DRO\") must satisfy to be a qualified domestic relation order (“QDRO”). The court held an ERISA life insurance plan must treat a divorce decree which required a participant to keep his first wife’s children as his beneficiaries as having gone into effect. The dispute arose because at the time of his death, the participant had not followed the terms of the decree, and his second wife was then his sole beneficiary. The Drainville court correctly concluded in a well-reasoned manner that (1) strict compliance with the QDRO disclosure requirements is not required, but substantial compliance is adequate; (2) an agreement that is merged or incorporated into a divorce decree may be a QDRO; and (3) a DRO may be a QDRO even if the plan administrator does not determine that it is a QDRO. The Drainville court, like many other courts, incorrectly disregarded the fact that the QDRO requirements, including the requirement that ERISA plans follow the designations of such an order, are applicable only to pension plans. Thus, the court should have (1) directed the life insurance plan to disregard the DRO at issue, and (2) held that the participant’s designee, his second wife, was entitled to his benefits.","PeriodicalId":182251,"journal":{"name":"FinPlanRN: Wills & Trusts (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134312649","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}