Chapter 6. Extrinsic Evidence 231 results (showing 5 best matches)
- Some wills show on their face that a devisee was intended to give the devise to others who are not identified in the will. These are sometimes called “semi-secret” trusts as contrasted with “secret” trusts in which the will gives no clue that a trust was intended. Strangely, secret trusts can be enforced under constructive trust principles whereas semi-secret trusts typically are not. Arguably, semi-secret trusts provide a stronger case for enforcement because extrinsic evidence showing the intended beneficiaries is not inconsistent with the will but rather supplements it, rather like resolving a patent ambiguity. The Restatement of Trusts makes semi-secret trusts enforceable, and dispenses with the higher burden of proof required for constructive trusts in this situation. But some courts, contrary to the Restatement, refuse to enforce semi-secret trusts. When a will directed the executor to distribute the estate “in accordance with the verbal guidelines last given by me,” the court...
- Many states subject testamentary trusts to close court supervision. Under the theory of incorporation by reference, the trust receiving poured over assets from the decedent’s estate would be a testamentary trust subject to supervision. To avoid that result, the Uniform Probate Code provides that property passing under a pour-over devise “is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised.” However, for some purposes, the pour-over will and receptacle trusts are treated as a unit. The probate court has been held to have jurisdiction to determine the validity of both when they are challenged for undue influence. A provision in a trust for a spouse has been held to bar her claim to have been pretermitted in the pour-over will. And, where the settlor of a pour-over trust and her husband divorced, the court found that the trust and will were part of a comprehensive estate plan and revoked the husband’s interest under the
- Pour-over devises have been accepted by courts and legislatures because they perform a useful function, allowing various parts of an estate plan to be consolidated. Many persons wish to put some of their assets into a living trust and have other assets pass to a trust for the same beneficiaries when they die. Or a testator may wish to add assets to a trust created by another person. Spouses may wish to put their respective assets into a trust for their common children. Administrative costs can be reduced by consolidating the trusts of the two spouses. The wife can leave her estate to the trust created by her husband’s will and vice versa, depending on who dies first. Or a parent may wish to add property to a trust created by a child for the parent’s grandchildren. The Uniform Probate Code allows a pour-over to a trust created by “another individual’s will” if the testator of the latter will predeceased the testator of the pour over devise.
- The doctrines of incorporation by reference and facts of independent significance both have been used to validate a modern estate planning device, the “pour-over” will. To illustrate, a couple who had created a revocable trust later executed wills which left property to the trustees of the trust to be held pursuant to the terms of the trust. Thus, the ultimate beneficiaries of the will could only be ascertained by looking at the trust which was not executed with the formalities prescribed for wills. The couple amended the trust after executing their wills. Could property passing under their wills be governed by the terms of this subsequent amendment of the trust? Earlier cases had refused to allow this, based on the But this court upheld the pour-over devise by treating the trust as a fact of independent significance; because the trust contained assets other than those which the will poured into it, its terms had independent significance. ...the trust have only nominal value prior...
- In re Estate of Norem, 561 So.2d 434 (Fla.App.1990). Estate of Harper, 93 T.C. 368 (1989) (wife can take under trust and elect against the will); In re Estate of Richardson, 50 P.3d 584 (Okl.Civ.App.2002) (stated intent to disinherit son in a receptacle trust did not defeat son’s claim as pretermitted heir).
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Chapter 15. Overview of the Federal Tax Laws Relating to Estates and Trusts 368 results (showing 5 best matches)
- The statute also applies where there is one or more income beneficiaries and the decedent retained the power to direct that income be accumulated for ultimate distribution to the remainderman of the trust. For example, if Mary creates a trust to pay the income to John, remainder to John’s children and retains the power to accumulate and capitalize the income, the trust is included in Mary’s gross estate because her retained power permits her to shift the enjoyment of the income from John to his children. There is some disagreement, however, whether a power to accumulate income is a power to designate under Section 2036 where there is only one income beneficiary who will ultimately receive the accumulated income at the termination of the trust. Suppose John created a trust for the primary benefit of Alice to terminate when Alice dies or reaches age 25, whichever first occurs. Upon the termination of the trust the principal and any accumulated income would be paid to Alice or her
- It is the combination of the estate’s or trust’s distributions deduction and the beneficiaries’ gross income inclusion that assures that the income received by the estate or trust is taxed to the estate or trust or to the beneficiary but not both. Needless to say, there are many nuances that complicate how the taxable income of an estate or trust and its beneficiaries is calculated.
- Sections 671 through 679 set forth a series of rules under which a grantor of an inter vivos trust may be required to include in her gross income either the trust’s ordinary income or capital gains or both. Classification as a “grantor” trust will also entitle the grantor to claim the trust’s deductible items and tax credits. Generally, the grantor trust rules apply whenever the grantor has retained an economic interest or “too much power over” either the income interest or the remainder interest or both. The rules are similar to but not identical to the rules on inclusion of inter vivos trusts in the grantor’s gross estate for federal estate tax purposes. It is possible to create a trust excludable from the gross estate on which the grantor continues to be taxed on the income. Given the high income tax rates on the retained income of an estate or trust, there is an incentive to create an intentionally defective grantor trusts (IDGT) which is excludable from the gross estate but on...
- Mary is deemed to retain dominion and control even though the power she retains cannot be exercised for her personal pecuniary benefit. For example, suppose Mary transfers property in trust to pay the income to such of Alice, Bob and Charlie as Mary from time to time directs. Upon Mary’s death the trust terminates and the principal is distributable to Alice, Bob and Charlie. In this case, Mary retains dominion and control over the income interest but no dominion and control over the remainder interest. In measuring whether there is a completed gift, each interest in the trust is considered separately. Because of Mary’s retained power to determine how the income is distributed, the gift of the income interest is incomplete. The gift of the remainder interest is complete because Mary has no authority to alter the shares. The trust property will also be included in Mary’s gross estate under Section 2036 because Mary retained a power to control the beneficial enjoyment of the income...
- The most common example of a retained life estate transfer that is included in the decedent’s gross estate occurs where a decedent transferred property in trust and retained the income interest in the trust for life. Similarly, if decedent transferred real property and retained a legal life estate in the property, then at death the real estate would be included in the decedent’s gross estate.
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Chapter 9. Trusts 311 results (showing 5 best matches)
- Because trusts and legal life estates perform the same function, an instrument which creates a life estate may be construed to create a trust. A will which left property to the testator’s wife for life accompanied by a direction that the executors “handle my estate during the life of my wife,” was held to create a trust by implication. English legislation converts all life estates to trusts even for land. Such forcing of legal life estates into the trust mold coincides with the common advice of estate planners to use a trust whenever one wishes to create successive interests in property.
- Insurance proceeds can be put into a trust in several ways. They can be made payable to the insured’s estate and pass with other assets into a testamentary trust although this will subject the proceeds to probate and possible creditor claims and could subject the proceeds to an inheritance tax. Another alternative is to have the proceeds paid directly to trustees named in the insured’s will. In some states this has some of the advantages of avoiding probate. Most planners prefer to create a revocable living trust and designate the trustee of that trust as beneficiary of the insurance policy.
- The definition of income for tax purposes influences the allocation of trust receipts. For example, a decision to deduct estate administration expenses on a trust’s income tax return instead of on the decedent’s estate tax return can impact the income and principal beneficiaries differently. If deducted on the estate tax return, the estate tax, which is payable from principal, is reduced and the principal beneficiaries benefit. If deducted on the income tax return, the trust’s income tax is reduced and the income beneficiaries benefit. The method whereby one group of beneficiaries reimburses another group of beneficiaries for the effect of tax elections is referred to as an equitable adjustment. The 1997 Act allows trustees to make “adjustments between principal and income to offset the shifting of tax benefits between income beneficiaries and remainder beneficiaries” in some instances, and requires them in others.
- Most of American trust law consists of rules subject to override by the terms of the trust. The UTC is no exception. Nearly all of the Code’s provisions are subject to override in the terms of the trust. But prior to the UTC, neither the Restatement, treatise writers, nor state legislatures had attempted to describe the principles of law that are subject to the settlor’s control. The UTC collects these principles in Section 105. Included are the requirements for creating a trust; the rights of third parties in their dealings with the trustee; the power of the court to take certain actions with respect to a trust’s administration such as to remove a trustee; the power of the court to modify or terminate a trust on specified grounds; a trustee’s obligation to act in good faith, and in accordance with the terms and purposes of the trust and the interests of the beneficiaries; and certain aspects the trustee’s duty to keep the beneficiaries informed of matters relating to the trust’s...
- Most states have enacted numerous statutes on the construction of wills. Most states have not enacted rules of construction applicable to revocable trusts and other nonprobate devices. While the Code’s drafters concluded that the rules of construction for revocable trusts and, to a lesser extent, irrevocable trusts, ought to be the same as the rules for wills, the drafters realized that any effort on their part to draft detailed rules for trusts would not succeed. The rules on construction for wills vary radically among the states. Any detailed rules on trusts that the drafters might have developed could have matched the rules for wills in only a limited number of states.
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Chapter 2. Intestate Succession 275 results (showing 5 best matches)
- Estate planners sometimes draft wills in anticipation of a possible disclaimer by a devisee. If a will devises property “to my wife Mary, but if she predeceases me, to Andrew,” Andrew would take if Mary survived the testator but disclaimed. Mary may need property for her support for life, but also may wish to reduce her estate taxes at death. The best solution may be to have the property pass to a trust in which Mary gets the income for life without the trust property being taxable in her estate when she dies. A testator when executing a will may be uncertain whether or not his estate at death will be large enough to warrant such a trust, and may want to leave it to his widow outright with the idea that she can disclaim all or part of it if this is appropriate. A will can provide that any property the widow disclaims shall go into a trust for her for life. ...will supersede the general rule that a disclaimant is deemed to have predeceased the decedent, which applies only when “...
- When under any provision of this Will, my residuary estate or the principal of any trust created hereunder becomes distributable “in equal shares ” to my issue or the issue of any other designated person or persons, my residuary estate or the principal of such trust, as the case may be, shall be distributed to such issue as follows: My residuary estate or such principal shall be divided at the nearest generation of issue of mine or such other persons, as the case may be, that contains at least one member who shall be living at the time of my death or the termination of the trust, as the case may be, with an allocation of one equal share to each surviving member of that generation, if any, and to each of the members of that generation, if any, who shall not then be living but who shall have died leaving issue of a more remote generation then living. The shares of members of that initial division generation who shall not then be living but shall have died leaving issue then living...
- A drafter who decides to use a gift to “heirs” in a will should make clear intestacy statute should control, because the intestacy laws in the states can differ. For example, a trust provided that at the death of the settlor’s grandson, his widow “shall receive such portion of the trust estate as she would be entitled to had her husband died intestate.” This portion was greater under Maryland law, where the trust was created and administered, than under the law of Texas, where the grandson was domiciled at death. The court held that Maryland law governed, but the Uniform Probate Code looks to the “law of the designated individual’s domicile,” The Restatement of Property would have looked to the law of Texas including its choice of law rules, which might in turn look to the situs of any real property involved. A well drafted will can avoid controversy by specifying the relevant law, , the Uniform Statutory Will Act refers to “the individuals who would be entitled to receive the estate
- Even if a person wants all her property to pass to the heirs designated by the intestacy laws, and if no trust is needed, a will may still be desirable. A will can designate an executor to administer the estate and can give the executor powers beyond those conferred by law. Administration of an estate is more efficient when the executor has such powers. For example, some states may require the administrator of an intestate’s estate to seek court approval prior to selling intestate’s real estate, whereas a testator’s will can confer a power of sale on an executor exercisable without court approval.
- Many testators with minor children avoid conservatorship by leaving everything to their spouse in the expectation that the spouse will take care of the children. This solution may not be satisfactory if the surviving spouse is not the parent of the decedent’s children or has other children by a prior marriage. Even if this is not the case, the spouse may remarry and have another family to which the client’s property may be diverted. Also, in larger estates an “all to spouse” will may result in unnecessarily high estate tax when the spouse dies. Here, too, a trust can provide a better solution than any of the intestacy statutes. A well drafted will should provide that any share of the estate which happens to pass to a minor shall be held in trust, at least until the minor comes of age.
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Chapter 8. Ademption, Abatement and Lapse 283 results (showing 5 best matches)
- Estate of McKee, 504 N.Y.S.2d 394, 395–96 (Sur.1986). Even pecuniary devises share in the estate income if they are “in trust.” But the court held that this “pour over bequest” did not create a trust, but merely added to an existing trust and so did not qualify. Hanna v. Hanna, 619 S.W.2d 655 (Ark.1981) (devise of “assets which will equal one-half of my adjusted gross estate” is “clearly a true pecuniary bequest.”).
- Income of an estate that is not attributable to specifically devised property is divided among the residuary devisees and the trustee of any pecuniary devise in trust in proportion to their respective shares of the estate. The question as to how a devise should be classified sometimes arises in this context, as when estate assets change in value during the administration of the estate. For example, a will devised “25% of my estate remaining after debts, funeral expenses and expenses of administration, but before taxes.” Was this a pecuniary devise not in trust to which no estate income was allocable or a fractional share of the residue which was entitled to some allocable portion of the estate’s income?
- Some wills require devisees to survive until the property is distributed to them. A trust called for distribution to the settlor’s son when she died “if he shall then be living.” Despite the clear holding of the Court of Chancery that the son’s share vested immediately upon the settlor’s death, the Delaware Supreme Court held that the son’s interest did not vest until the trust was actually distributed. Because the son survived the settlor by only a few weeks and prior to the distribution of his share of the trust, nothing passed to the son’s estate, thereby fulfilling the settlor’s wish to benefit her immediate family. Such provisions raise problems of interpretation. In a case in which the executor had made partial distributions to the devisee before he died the court held that the devise nevertheless failed, because the will meant a “final, court-approved distribution or settlement of the estate.” Another litigated issue is whether an estate ...; beneficiaries of the... ...estates...
- Liability for the federal estate tax is often apportioned among beneficiaries of an estate. Failure to do this in cases where a considerable portion of the estate passes outside the residue might cause the residue to be completely abated. but is sometimes unclear. Sometimes there is a conflict between the will and the provisions of a revocable trust on the subject, because the drafter failed to coordinate the various parts of an estate plan.
- Even a testator who voluntarily disposes of a specifically devised asset may not intend to adeem the devise. A testator’s shifting money from a savings account to a certificate of deposit in order to get a higher interest rate probably shows no intent to adeem. But in some cases ademption reflects the testator’s probable intent. The reason for a specific devise may disappear when the property is disposed of. When a business is devised to employees in the hope that they will carry it on, and the testator later sells the business, it seems reasonable to infer an intent to adeem. The same applies to devises of items of sentimental value, like paintings or jewelry. Many wills specifically devise the testator’s house and tangible personal property in order to avoid putting them into a trust which holds the residue of the estate. ...sells the house there is no reason why the sale proceeds should not go into the residuary trust, so ademption seems the proper result. Ademption also... ...of...
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Chapter 12. Fiduciary Duties and Administration 268 results (showing 5 best matches)
- Can a personal representative or trustee sell assets of the estate or trust or must they be preserved for distribution in kind to the beneficiaries when the estate is closed or the trust terminated? While the governing instrument may limit the fiduciary’s authority, most wills and trusts confer broad powers of sale on the executor or trustee. Some instruments are silent on this question, however, but for these, the applicable powers legislation normally confers the necessary authority. The Third Restatement of Trusts implies a power of sale for trustees unless the terms of the trust or the circumstances indicate “that assets of the trust are to be retained in specie.” Some statutes are more restrictive. In Illinois trustees have broad powers of sale, but personal representatives can sell property only “by leave of court and upon such terms as the court directs” unless the will gives a power of sale. ...powers legislation, however, expressly authorize executors and trustees to sell...
- Trustees and personal representatives can get reimbursement from the trust or estate for their liability if the contract was properly made, but if the estate is insufficient to cover their liability they may be left “holding the bag.” If a trustee is personally insolvent, the claimant will want to reach the assets of the trust. The Second Restatement allows them to do so “to the extent to which the trustee is entitled to exoneration out of the trust estate.” This limitation bars relief to claimants if the trustee is liable to the trust in an amount which exceeds the trustee’s right of exoneration. Professor Scott criticized this “where the trustee acted within his powers … it seems unjust to the creditor to deny him a recovery out of the trust estate merely because in some other matter the trustee has committed a breach of trust subjecting him to a surcharge.”
- Under the Second Restatement “preservation of the estate” (along with production of income) was the goal of trust investment, but under the new rules, preservation of the estate in the traditional sense is not enough. The Uniform Prudent Investor Act speaks of “total return from income and the appreciation of capital.” The Third Restatement describes the goal as preservation of the “real value” of the trust property, , “seeking to avoid the loss of the trust estate’s purchasing power as a result of inflation.”
- The UTC and Uniform Probate Code treat trustees and personal representatives as if they were agents of the trust or estate for purposes of tort as well as contractual liability. They are not liable for torts committed in the course of administration of the estate unless they are “personally at fault.” The tort victim can reach the assets of the estate or trust directly if the tort was “committed in the course of administration of the estate.”
- , as executor and trustee, or as trustee of several trusts for the same family. Can the ABC Bank as trustee of an insurance trust buy assets from itself as the executor of the insured’s probate estate? Allowing such a transaction can provide a market for hard to sell assets, and the potential conflict of interest is attenuated because the Bank has no personal interest in the matter. The California Probate Code allows sales and exchanges between two trusts where the same trustee administers both if the transaction is “fair and reasonable with respect to the beneficiaries of both trusts” and the beneficiaries are properly notified. The UTC provides that the fact the trustee is acting in another fiduciary capacity “does not preclude a transaction between a trust and another trust, decedent’s estate, or conservatorship of which the trustee is a fiduciary.”
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Chapter 12. Fiduciary Duties and Administration Part 2 409 results (showing 5 best matches)
- § 204, which is one of the Code’s optional provisions, venue for bringing a proceeding is in the county of the trust’s principal place of administration unless the trust has no trustee or the trust was created by will and the decedent’s estate is not yet closed.
- Restatement (Second) of Trusts
- For a discussion of the legal background behind principal place of administration and the issues addressed in Section 108,
- Matter of Trust of Grover, 710 P.2d 597, 602 (Idaho 1985); Matter of Estate of Larson, 694 P.2d 1051 (Wash.1985) (attorney can’t charge estate for time spent in justifying his own fee); In re Estate of Inlow, 735 N.E.2d 240, 250 (Ind.App.2000) (same); In re Estate of Petesch, 62 P.3d 674, 680 (Kan.App.2003).
- Estate of Vail v. First of America Trust, 722 N.E.2d 248, 252 (Ill.App.1999) (upholding such an investment as authorized by statute); UTC § 802(f);
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Chapter 5. Revocation, Gifts, and Will Substitutes 241 results (showing 5 best matches)
- The Restatement of Trusts allows settlors of bank account trusts to revoke them by will, but general language in a will may not suffice, , a devise of all the estate “of whatsoever nature” did not revoke the testator’s bank account trusts. Even when the intent to revoke a living trust is clear, it may be rejected for failure to satisfy a requirement in the trust that amendments be delivered The Uniform Trust Code allows living trusts to be revoked by will, but only if the trust does not provide an “exclusive” method of revocation. Some states do not allow living trusts to be revoked by will at all.
- ; Matter of Estate of Sanders, 929 P.2d 153 (Kan.1996) (trust not revoked by general language in will which did not refer to the trust); In re Estate of Furst, 55 P.3d 664 (Wash.App.2002) (same); In re Estate of Gloege, 649 N.W.2d 468 (Minn.App.2002) (statute allows will to revoke non-probate transfer only by “specific reference”);
- An Ethical Analysis of Common Estate Planning Practices,
- In order to revoke a trust the settlor must comply with any method of revocation specified in the trust instrument. A settlor reserved the right to alter a trust “by an instrument in writing signed by her and delivered during [her] life to the Trustees.” After she died, an unsigned slip of paper was found clipped to the trust instrument, but this paper was not effective to change the beneficiary. “The term ‘instrument in writing’ suggests … substantially more than an unsigned scrap of paper.” Moreover, the settlor had not delivered the writing to her co-trustee. A court construed another trust which allowed changes by a signed writing “delivered to the Trustee” to require delivery during the settlor’s lifetime, and, thus, an amendment delivered after the settlor died was invalid. In another case, a person executed a will and a trust at the same time. The latter provided that it could be revoked by an instrument in writing. When the person died, neither the will nor the trust...
- In re Estate of King, 817 A.2d 297, 300 (N.H.2003). In re Estate of Smith, 378 N.W.2d 555 (Mich.App.1985) (will and codicil are separate documents and destruction of will does not revoke the codicil).
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Chapter 3. Limits on Testamentary Power 202 results (showing 5 best matches)
- In several states a testator’s marriage has no effect on a will. Arguably spouses need no other protection than the elective share. However, the elective share is usually smaller than the intestate share that an omitted spouse receives. Under the Uniform Probate Code, the omitted spouse’s share and the elective share are measured against different bases. The omitted spouse’s share is a share of the probate estate only; the elective share, on the other hand, can include both probate and nonprobate assets. If the decedent’s only assets are in the decedent’s probate estate of $500,000 and the spouse could claim the entire probate estate as an omitted spouse, this would clearly be preferable to claiming an elective share against the probate estate as the maximum amount of the elective share would only be $250,000. But, if the decedent leaves a probate estate of $1,000,000 but an augmented estate of $2,500,000 (consisting of the $1,000,000 intestate estate, plus a $1,500,000 revocable trust
- Efforts to avoid the elective share may fail. Some courts have subjected property that the decedent transferred before death to the elective share on the theory that the transfer was “illusory.” Generally, an “illusory” transfer is one in which there has been a change in the form of ownership but the transferor’s economic interest in the property both before and after the transfer is essentially the same. Thus, revocable living trusts are frequently characterized as illusory. Even though the transferred assets are owned by a trust and not the settlor, the only thing standing between the settlor and absolute ownership of the trust assets is a piece of paper stating: “I revoke the trust.” The Second Restatement of Property and the Third Restatement of Trusts both allow a surviving spouse to reach the assets of any revocable trust created by the decedent. If a trust is illusory, either the entire trust is invalidated and the assets become part of the probate estate or only enough...
- What factors should the spouse (and the lawyer) consider? A simple comparison between the size of the elective share and the benefits given to the spouse by the will is clearly relevant but not always determinative. Suppose that the decedent’s will creates a bypass trust which gives a widow the income for her life, with the corpus to be distributed at her death to their children. If the widow has enough property to generate an estate tax when she dies, she may decide not to take an elective share even if it would give her more money, because the additional money would be taxed in her estate at death. The widow’s failure to take an elective share, like a disclaimer, does not constitute a taxable transfer. other hand, if the decedent husband’s estate is large enough to incur an estate tax and his will does not qualify for the marital deduction, the widow may wish to elect against the will in order to reduce the taxes on her husband’s estate.
- As the foregoing opinion indicates, lawyers who negotiate divorce settlements that provide for support payments should anticipate that the payer may die while the children or spouse still need support. A provision for continuation of payments from the obligor’s estate is not an adequate solution, because the estate may be inadequate—even if the obligor currently earns a high income, that income will cease at death. Also, it is generally undesirable to keep an estate open to continue periodic payments. The Uniform Marriage and Divorce Act deals with the latter problem by allowing an obligation to be “commuted into a lump sum payment.” Many divorce settlements require a parent to maintain life insurance for the benefit of children whom the divorcing parent is obligated to support. The California Family Code provides that unless otherwise agreed, obligations to support a spouse terminate “upon the death of either party,” ...order payment of an amount “sufficient to purchase an annuity …...
- A better argument for testamentary freedom is that it permits more intelligent estate planning than the rigid rules of intestate succession: “the parent more often than not will know better how to dispose of his property than will the state [which imposes] an inflexible blanket rule.” Such planning is not limited to punishing family members for conduct which the testator disapproves. A will may depart from the equal treatment of children mandated by the intestacy laws in order to take account of their differing needs and deeds. Or, a testator who has provided for one child by lifetime gifts may leave this child less than the others to equalize the property passing to all of the testator’s children both during life and at death, because the law of advancements, ...dies intestate, is a crude alternative for reflecting this desire. Or a testator may wish to provide for children equally, but in different ways, for example, by leaving a family business to one child and equivalent assets...
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Chapter 4. Formalities 219 results (showing 5 best matches)
- Totten trusts have been called “the poor man’s will” (even though substantial amounts occasionally pass under them). They are “widely used as a legitimate means of avoiding the costs and delays typically associated with the processes of administering decedents’ estates.” Because they are “widely used,” the expectations of many settlors would be defeated if courts were to hold such trusts invalid. On the other hand, because Totten trusts are so much like wills, they are treated like wills for purposes other than formal requirements for due execution, such as the rights of the settlor’s spouse to claim them as part of an elective share and of creditors to reach them in payment of their claims.
- Even changes in a will have been allowed if they are not inconsistent with the spirit of a contract. For example, a couple’s contractual will left their estate in trust for their daughters with a remainder to the grandchildren. After the wife died, the husband made a new will which left the property to the daughters outright. The court rejected a challenge filed on behalf of the grandchildren on the ground that the later will “substantially complied with the contract.” The grandchildren’s “expectancy was realized in the form of benefits flowing directly to their mothers and indirectly to them as dependents of their mothers and as the natural heirs of their mother’s estates.”
- In 2008, the Uniform Probate Code was amended to allow for notarized wills without witnesses, and it is expected that this change will spur many states to adopt a similar rule. As noted in the Code’s comments, allowing notarized wills to be probated should avoid invalidating a document clearly intended to be a will that was signed and notarized under circumstances where several other estate planning documents not requiring witnessing (such as a revocable trust, a durable power of attorney, and a health care power of attorney) were being signed, but where the will did not receive special witnessing treatment. A court might also uphold a notarized but unwitnessed will under the harmless error rule although it would not have to do so in states following or adopting the Uniform Probate Code’s notarized will provision.
- A more persuasive rationale for the validity of revocable trusts was offered by Gulliver and Tilson. Normally in a living trust “a formal instrument will be prepared and delivered even though it is not doctrinally essential to do so. As a result, the main objectives of the statute of wills seem to be satisfied.” This rationale suggests that the law should distinguish between formal and informal trusts. The authorization of nonprobate transfers in Section 6–101 of the Uniform Probate Code is limited to those in a “written instrument,” but the Comment says this was not intended to “invalidate other arrangements” such as oral trusts. A trust drafted by an attorney and signed by the settlor and an independent trustee seems to satisfy the purposes of the wills act formalities.
- The legal effect of wills that contain language suggesting that a devisee should use property for someone can be ambiguous. The language could evidence the testator’s intent to impose a trust or other legal obligation upon the devisee for the benefit of another, or the words could be merely precatory, When a will left property to the testator’s father “for the reason that I feel confident that any property which … my father … receive[s] from my estate will be used in the best interests of my said children,” the children claimed that this created a trust, but the court disagreed. “This language does not impose any sort of clear directive or obligation (other than perhaps a moral or ethical one) … The purported trustee is given no direction as to how the supposed settlor intends his estate to be used to further ‘the best interests’ of the children.” Vagueness as to the beneficiaries and their interests “tends to suggest that the transferor did not intend to create a trust.” ...a will...
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Chapter 1. Terminology and Choice of Law 409 results (showing 5 best matches)
- Many trusts endure for years during which questions of allocations between principal and income arise. The Uniform Principal and Income Act of 1962, unlike its predecessor, applied to trusts created prior to its adoption, but only to “any receipt or expense received or incurred after the effective date” of the Act. A similar approach is taken to investments by trustees. “Whether an investment is proper is determined by the terms of the statute in force at the time when the investment is made” rather than by the rules in force when the trust was created. On the other hand, the Uniform Principal and Income Act of 1997 applies to every trust or estate existing on the effective date of the act “except as otherwise provided in the will or terms of the trust or in this Act.”
- A trust created for the benefit of the spouse of a settlor or testator. The assets of the trust are excluded from the taxable or probate estate of the spouse. The trust typically provides that the spouse is entitled to all of the trust’s income for life and may empower the spouse to appoint the property to others.
- Warner v. Whitman, 233 N.E.2d 14, 17 (Mass.1968) (perpetuities reform statute); In re Arens’ Trust, 197 A.2d 1 (N.J.1964) (Principal and Income Act); Estate of Coe, 201 A.2d 571 (N.J.1964) (inclusion of adopted child in class gift); In re Estate of Hollister, 221 N.E.2d 376, 379 (N.Y.1966) (concurring opinion); In re Last Will and Testament of Tamplin, 48 P.3d 471, 474 (Alaska 2002).
- Estate of Gardner, 2 Cal.Rptr.2d 664 (App.1991). As to jury trial in will contests, Matter of Will of Cargill, 420 N.W.2d 268, 271 (Minn.App.1988) (UPC effective in 1976 applied to a testamentary trust created in 1933).
- The court which admits the will to probate also appoints the personal representative to administer the estate and continues to supervise the administration of the estate. For this reason, the term “probate” is often loosely used to include the ongoing administration of the estate, and the property subject to that administration is referred to as the “probate estate.”
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Chapter 14. Planning for Incapacity 111 results (showing 5 best matches)
- Over the past couple of decades, estate planning practice has changed dramatically. Federal estate and gift tax planning has receded in importance as the estate tax exemption has increased from $60,000 as recently as 1976 to $5,000,000 in 2011. Litigation involving estates and trust matters has increased dramatically, giving birth to a new law practice specialty, that of fiduciary litigation. But perhaps most importantly, fueled by concerns that individuals are living longer than formerly but not necessarily in a state of good health, planning for incapacity has become part of the standard estate planning counseling session. In addition to a will and possibly revocable trust, it is customary for a client to sign a durable power of attorney for property management and some type of advance health-care directive. Less commonly, the client will sign a document indicating an intent to be an organ or tissue donor. ...of incapacity is required before making an appointment for an adult,...
- The durable power of attorney for financial affairs, along with the revocable living trust, are the principal alternatives to guardianship of an individual’s property. The growth of the durable power has been truly remarkable. From a little used device a couple of decades ago, the power of attorney has become a standard part of the estate planning package.
- Because trust assets are titled in the name of the trustee, trustees of living trusts encounter less third-party reluctance than do agents acting under durable powers. The revocable living trust may therefore be more effective as an incapacity planning device. A living trust is only effective to the extent that it is funded, however. Despite the best of intentions, assets are often found outside the trust. For a client with a living trust, a power of attorney with a trust funding provision should be a standard part of the plan. The Missouri statute authorizes an agent to fund an existing trust even if not expressly authorized in the power of attorney.
- There are numerous reasons why an agent might be granted authority to make gifts. By making gifts, the agent can facilitate qualification for Medicaid and other government benefits. In addition, the estate tax savings from annual exclusion gifts can be dramatic. Due to the substantial repeal of the rule pulling back gifts made within three years of death into the gross estate, substantial large sums often can be funneled out of the gross estate shortly before death. Because the individual is frequently incapacitated during this final stage of life, a durable power of attorney with gifting authority may be essential to meet estate planning goals. It is generally held that a grant of general authority (“agent can do whatever I could have done if competent”) does not authorize the making of gifts. An express provision is required.
- A living will typically becomes effective when it is executed, although the Uniform Rights of the Terminally Act provides that the living will becomes operative after it is communicated to the attending physician and the declarant is determined to have a terminal condition and is no longer capable of making decisions regarding the use of life-sustaining procedures.
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Preface 1 result
- This book is an abridged and slightly revised version of McGovern, Kurtz & English, Wills, Trusts and Estates including Taxation and Future Interests (4th edition 2010). A reader of this book who seeks additional information on any topic can turn to the larger version. This is easy because the section numbers in both versions are the same.
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Chapter 7. Incapacity and Undue Influence 241 results (showing 5 best matches)
- Estate of Shinkle, 119 Cal.Rptr.2d 42 (App.2002) (trust for ombudsman at health care facility). In re Estate of Marks, 957 P.2d 235 (Wash.App.1998) (applying Rule 1.8(c) to non-lawyers who helped testator draft will).
- Will Contests: An Empirical Study
- In re Estate of Shumway, 3 P.3d 977, 983 (Ariz.App.1999); In re Estate of Wittman, 27 P.3d 35, 38 (Mont.2001) (will “makes sense under the circumstances”); Walker v. Roberds, 47 P.3d 911, 916 (Or.App.2002) (will dividing estate equally between two sons was “natural and equitable”); In re Estate of Holcomb, 63 P.3d 9, 22 (Okl.2002) (will leaving all the estate to one child “in gratitude for [her] caretaking” upheld).
- Some persons cannot meet the relatively low standard that the law sets for testamentary capacity. Distribution of their property under the intestacy laws or under a will executed when they had capacity may produce an unsatisfactory solution. Can a conservator make a will for such a person? The answer in nearly all jurisdictions has traditionally been no, Conservators have previously been authorized to create revocable trusts, which are the functional equivalent of a will, for conservatees. According to the Restatement of Trusts, “prohibitions against will making are generally to be strictly construed” so as not to prohibit “other methods of … properly justified post-death disposition of estates of persons under disability.”
- McKee v. Stoddard, 780 P.2d 736 (Or.App.1989) (will and joint tenancy); Sun Bank/Miami, NA v. Hogarth, 536 So.2d 263 (Fla.App.1988) (will and trust). In Estate of Wenzel–Mosset by Gaukler v. Nickels, 575 N.W.2d 425 (N.D.1998), on the other hand, a change in bank accounts was found valid, but a will executed three days later was rejected for incapacity. Greenwood v. Camp, 738 N.Y.S.2d 452 (App.Div.2002) (jury finding of undue influence on will not res judicata as to joint accounts established a week later).
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Chapter 13. Probate Issues 243 results (showing 5 best matches)
- When an individual dies, most nonprobate assets can be transferred relatively easily. To collect on life insurance and retirement benefits, ordinarily all that is required is the furnishing of a death certificate and the filing of a claim form with the insurance company or retirement plan administrator. To change title to jointly owned or tenancy by the entireties real estate, practice varies by state but in many states all that is necessary is to file with the land records an affidavit reciting the death to which a copy of the death certificate will be attached. Often these documents are not filed until the surviving joint tenant or spouse sells the property. Administering property in a revocable living trust is more complicated. If the settlor was trustee until her death, the successor trustee will first normally sign an acceptance of office. successor will need to verify the assets held in the trust, pay the decedent’s debts and expenses as directed in the trust document, and then...
- Having two courts pass on the validity of the same will made no sense. In keeping with the modern trend to assimilate the rules for land and personal property, the English Court Probate Act of 1857 made the probate of a will, or a decree that a will was invalid, binding as to all the testator’s property. The assimilation of land and personal property might have been accomplished by abolishing probate altogether, and having the validity of wills tried in any court whenever it became relevant in a proceeding. Other forms of transfer are handled in this way: if a person conveys a home by deed, no probate of the deed is necessary. Absent a dispute, everyone assumes the deed is valid. Why then should a will always have to be proved in court before it may determine title to property? Why not wait and see if anyone complains and decide the matter then? Requiring probate may actually promote efficiency. Because a will often affects many persons, it could give rise to many lawsuits between...
- When a will is admitted to probate, the court appoints a personal representative to administer the testator’s estate. Probate and administration are thus closely connected. But probate of a will usually takes little time (absent a contest) whereas administration of an estate typically lasts for many months or even years. Thus, the widespread desire to “avoid probate”
- The process is not so simple for assets that the decedent held in the decedent’s individual name. Unlike nonprobate assets, where the document of title recites to whom title will pass, establishing to whom title to individually owned assets will pass must be proved in court unless an expedited small estate’s procedure is available. Title to these “probate” assets will pass as provided in a valid will. If the decedent did not leave a valid will, title will pass to the heirs. “Probate” has both a technical and a colloquial meaning. Technically, “probate” is the process by which the court will validate a will. “Administration” is the process occurring thereafter where the personal representative appointed to administer the estate will collect assets, pay debts and expenses, and distribute what is left to the devisees in the case of a will or the heirs if the decedent died intestate. However, the term “probate” is often used more broadly to refer to the entire process of probate and...will
- Matter of Estate of Joffe, 493 N.E.2d 70 (Ill.App.1986); Marine v. Johnson, 437 A.2d 694 (Md.App.1981); Matter of Estate of McDaniel, 935 S.W.2d 827 (Tex.App.1996). In In re Beglinger Trust, 561 N.W.2d 130 (Mich.App.1997), the court applied a similar rule to one who had accepted benefits from a trust and then sought to challenge its validity.
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Chapter 3. Limits on Testamentary Power Part 2 335 results (showing 5 best matches)
- The Wills of Literary Figures
- In re Estate of Laura, 690 A.2d 1011 (N.H.1997). In re Estate of Treloar, 859 A.2d 1162 (N.H.2004) (naming one child in a will but not the other is not an implicit disinheriting of the other child and other child can claim as pretermitted heir).
- Marriage of Perry, 68 Cal.Rptr.2d 445 (App. 1997) (“a child support obligation survives the death of a parent and is a charge against his or her estate” and can also be paid from the assets of a revocable trust—the functional equivalent of an estate); Kiken v. Kiken, 694 A.2d 557 (N.J.1997) (same); L.W.K. v. E.R.C., 735 N.E.2d 359 (Mass.2000) (support order in a paternity action against the father of a child born out of wedlock enforceable against the father’s estate).
- UPC § 6–102; Matter of Estate of Wagley, 760 P.2d 316 (Utah 1988). Kroslack v. Estate of Kroslack, 504 N.E.2d 1024 (Ind.1987); In re Estate of Sieh, 745 N.W.2d 477 (Iowa 2008) (spouse’s allowance can be paid from assets of a revocable trust). For the right of creditors to reach non-probate assets,
- In re Estate of Coleman, 317 A.2d 631, 633 (Pa.1974).
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Chapter 10. Future Interests 290 results (showing 5 best matches)
- Many wills and trusts create future interests, for example, “to my spouse for life, remainder to our children.” If a child fails to survive the testator, a question of lapse arises ( but dies during the life of the life beneficiary, or prior to some other time fixed for distribution, such as “when she reaches age 25.” If the interest is “vested”, the remainderman’s interest passes to the remainderman’s estate to be disposed of by his or her will or to the heirs of a remainderman who died intestate. But a court may find a condition that remaindermen must survive the life beneficiary in order to take. If so, the court must decide what happens to the share of a remainderman who apply only to devisees who predecease the testator and so are irrelevant in this situation. A remainder “to our children” is a class gift so any children who survive will take the shares of children who did not. If no class member survives, or if the remainder was to an individual who failed to survive, the...will
- The more difficult cases occur when the will or trust creates a remainder in the heirs of someone who dies before the life tenant. For example, a trust gave a remainder “to the heirs of my children,” and many of the settlor’s children died before the trust terminated. The court held that the remainder vested in each child’s heirs as the child died. Courts have reached similar conclusions in construing remainders to the heirs of the testator; the heirs were to be determined as of the testator’s death, so that a share passed to the estate of any heir who had died before the termination of the trust. The Second Restatement of Property agrees: in a gift to “heirs” the intestacy statute is applied as of the ancestor’s death unless a contrary intent is found in “additional language and circumstances.” The Third Restatement, however, and the Uniform Probate Code, however, say that the “heirs” are to be determined as if the ancestor “died when the disposition is to take effect in possession
- The question whether a donee intended to exercise a power is often litigated, particularly in connection with whether a residuary clause without more exercises a general testamentary power of appointment. For example, where the will of a donee of a general testamentary power of appointment left “all the residue of my estate of every kind and nature to a trust,” the court followed the presumption of non-exercise in the Uniform Probate Code, which is based on the idea that “the donor would prefer to have the property pass under his trust instrument” to the designated takers in default of appointment. Reflecting this rationale, both the Code and Third Restatement provide that the presumption of non-exercise of a general testamentary power does not apply if the document omits takers in default of appointment. The Second Restatement based its presumption of nonexercise on the relation-back concept: “the donee does not own the property subject to the power.” ...if the donee “leaves a will...
- Even if a donor has full confidence in the donee’s ability to handle property and is unconcerned with avoiding taxation in the donee’s estate, the donor may prefer to put property in trust (1) to free the donee from the burden of managing it and (2) to avoid the non-tax costs of passing assets through the donee’s probate estate. situation, a presently exercisable general power may be appropriate because it would allow the donee to take the property out of the trust if the trustee is not doing a good job. A presently exercisable power also allows the donee to make gifts which may reduce the donee’s taxable estate.
- Restatement (Third) of Property (Wills and Other Donative Transfers)
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Chapter 11. The Rule Against Perpetuities 257 results (showing 5 best matches)
- Professor Browder suggested that the best way to reform wills was to insert a perpetuities savings clause. This would allow any reasonable estate plan to be carried out unchanged. An Illinois statute following this approach terminates trusts which violate the Rule 21 years after the death of the last to die of all the beneficiaries alive when the trust began. The current income beneficiaries receive the present value of their interest and the heirs of the settlor or testator get the balance. In most situations this will produce a desirable result unless the trust beneficiaries were not the testator’s heirs.
- In an inter-vivos trust invalidity of an interest may create a resulting trust for the settlor which means that the property passes under the settlor’s will, if the settlor had one. When application of the Rule produces an intestacy, this may seriously disrupt the testator’s estate plan. In cases involving such distortions courts sometimes use a doctrine called “infectious invalidity” to strike down even interests which are valid in order to better effectuate the testator’s intent. For example, a will created trusts for the testator’s three children. The termination provision for two of them violated the Rule. The one for the third child’s trust did not but the court struck it down also: “The underlying plan of the Testator was for his three children to have equal shares … If the provisions for Walter are permitted to stand, … Walter will share equally with Judith and Denis under the laws of intestate succession … while also receiving the income for life in the remaining one-third—...
- When a will created a trust which was to terminate five years after the testator’s estate was distributed, the heirs claimed that the Rule was violated because the distribution might be delayed too long. Some courts find that the Rule is not violated by such a provision because the law requires administration to proceed expeditiously, so it cannot possibly last for more than 21 years after the testator dies. Others reject this reasoning on the ground that the Rule requires “absolute certainty,” and distribution of a decedent’s estate is subject to many possible delays.
- A testamentary trust was to continue for twenty-five years after the testator’s death, following which the assets were to be distributed to the then living descendants of her husband’s brothers and sisters. This violated the Rule because there was the possibility of vesting after a life in being plus twenty-one years. This shows how the letter and the spirit of the Rule often diverge. A valid trust can be drafted in which the drafter designates a group of lives in being and provides that 21 years after the death of the survivor of them the trust will terminate. Such a trust will probably endure for about a century, and will not violate the Rule, but one which is certain to last for 25 years does.
- The Rule is easy to memorize, but difficult to apply in practice. In testing an instrument for a Rule violation one should first determine when the period begins to run. For wills, this is the time of the testator’s death, regardless of when the will was executed. For revocable trusts, this is the time when there no longer is a power of revocation, typically the settlor’s death. For irrevocable trusts or deeds, it is the time of execution of the instrument (or delivery if required). Some perpetuities violations occur because the drafter overlooked the difference between wills and inter-vivos transfers. An irrevocable trust was to last “until the death of the last surviving grandchild of the Grantor who shall be living
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Chapter 2. Intestate Succession Part 2 423 results (showing 5 best matches)
- Matter of Estate of Leathers, 876 P.2d 619 (Kan.App.1994); Estate of Webster, 920 S.W.2d 600 (Mo.App.1996). In re Estate of Flake, 71 P.3d 589, 598 (Utah 2003) (oral agreement involving distribution under a trust is effective, because UPC speaks only of wills).
- 203 (18th ed. 1999) recommends using a life estate and remainder for the spouse and children in this situation. For the advantages of trusts over Legal Life Estates
- Board of Education v. Browning, 635 A.2d 373 (Md.1994) (claim to inherit from adopter’s sister); Matter of Estate of Jenkins, 904 P.2d 1316 (Colo.1995); Estate of Furia, 126 Cal.Rptr.2d 384 (App.2002). But in Wheeling Dollar Sav. & Trust Co. v. Singer, 250 S.E.2d 369 (W.Va.1978), the court allowed an equitably adopted child to take under the will of a relative of the adopter.
- In re Morgan’s Estate, 411 N.E.2d 213 (Ill.1980). In Matter of Estate of Schock, 543 A.2d 488 (N.J.Super.L.1988), on the other hand, the court approved an executor’s disclaimer when the persons who benefited thereby agreed to create a trust with the property like the one in the decedent’s will.
- Section 2.1), and can administer the decedent’s estate, Estate of Leslie, 689 P.2d 133 (Cal.1984), and can claim as an omitted spouse ( Section 3.6), In re Estate of Sax, 263 Cal.Rptr. 190 (App.1989), but has been denied a family allowance ( Section 3.4, note 3 et seq.), Estate of Hafner, 229 Cal.Rptr. 676 (App.1986), and benefits under a pension plan designed for persons to whom the employee “was married.” Allen v. Western Conference of Teamsters Pension Trust Fund, 788 F.2d 648 (9th Cir.1986).
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Chapter 4. Formalities Part 2 366 results (showing 5 best matches)
- Va.Code § 64.1–53; N.Y.EPTL 3–2.2(b) (holographic and nuncupative will allowed if testator in armed services); Md. Estates and Trusts Code § 4–103.
- In re Estate of Chaitlen, 534 N.E.2d 482 (Ill.App.1989) (promise to create trust at death); Bemis v. Estate of Bemis, 967 P.2d 437 (Nev.1998) (promise to create a trust for children in divorce settlement); Bednar v. Bednar, 485 N.E.2d 834 (Ohio App.1984).
- Ohio Rev.Code § 2107.03; Md.Estates and Trusts Code § 4–102; Matter of Estate of Norton, 410 S.E.2d 484 (N.C.1991) (will rejected because the witnesses did not sign it); In re Succession of Smith, 806 So.2d 909 (La.App.2002) (will rejected because witness signed in another room). A witness’ acknowledging to the testator a signature previously made elsewhere has been held sufficient. Brammer v. Taylor, 338 S.E.2d 207 (W.Va.1985).
- Sanchez v. Sanchez De Davila, 547 So.2d 943 (Fla.App.1989); Estate of Bischof, 770 S.W.2d 474 (Mo.App.1989); Byrd v. Lanahan, 783 P.2d 426 (Nev.1989);
- In Matter of Estate of Harrington, 850 P.2d 158 (Colo.App.1993), an undated holograph was rejected where an attested will revoked all prior wills, but in In re Estate of Kleinman, 970 P.2d 1286 (Utah 1998), the case was remanded to determine whether the holograph was made subsequent to the will.
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Chapter 9. Trusts Part 2 358 results (showing 5 best matches)
- Estate of Breeden, 256 Cal.Rptr. 813 (App.1989); Register of Wills v. Cook, 216 A.2d 542 (Md.1966);
- Planning an Estate
- Matter of Estate of Branigan, 609 A.2d 431 (N.J.1992); Matter of Will of Kaskel, 549 N.Y.S.2d 587 (Sur.1989);
- Restatement, Second, of Trusts
- In re McNeill’s Estate, 41 Cal.Rptr. 139 (App.1964);
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Table of Contents 54 results (showing 5 best matches)
- Chapter 15. Overview of the Federal Tax Laws Relating to Estates and Trusts
- 15.6 Income Taxation of Estates and Trusts
- 6.4 Deeds of Land: Reformation, Constructive and Resulting Trusts [See Hornbook]
- 9.9 Modification and Termination of Trusts
- 6.2 Integration, Incorporation by Reference, Facts of Independent Significance, and Pour–Over Wills
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Index 527 results (showing 5 best matches)
- See also Bona Fide Purchaser, Charitable Trusts, Cy Pres, Duties of Fiduciaries, Investments, Loyalty, Modification of Trusts, Principal Place of Administration, Representation, Revocable Trusts, Spendthrift Trusts, Statute of Limitations, Trusts
- Charitable deduction for estate or trust, 766
- Revocation of bank account trusts by will, 302
- See also Pour-over Wills, Constructive Trust, Reformation
- See also Charitable Trusts, Discretionary Trusts, Revocable Trusts, Uniform Trust Code
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Title Page 4 results
Advisory Board 10 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus, University of California, Berkeley
- Dean and Professor of Law, Stanford Law School
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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Copyright Page 3 results
- Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- , Westlaw and West Group are trademarks registered in the U.S. Patent and Trademark Office.
- Printed in the United States of America
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- Publication Date: October 31st, 2011
- ISBN: 9780314273574
- Subject: Trusts and Estates
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book introduces students to the federal gift, estate, and generation-skipping transfer tax laws; grantor trust rules affecting the wealth disposition process; and the income tax rules applicable to estates and trusts. It covers recent cases and secondary literature and, reflecting the current trend toward globalization, it also includes a discussion of comparative law. It emphasizes the lawyer's role as drafter or estate planner and suggests ways to avoid problems that otherwise lead to litigation. It closely tracks the authors? more detailed hornbook, using the same section numbers for easy retrieval of information in the longer version.