Real Property, Trust and Estate Law Journal Summer 2020

Trusts & Estates

You Can’t Always Get What You Want: Inconsistent State Statutes Frustrate Decedent Control Over Funeral Planning

by Tanya D. Marsh

Americans have more choices than ever before with respect to the disposition of their remains after death. For some people, the choice of burial place, or the election to have their remains cremated, is the final opportunity to express and fulfill important values. American common law has long provided decedents with the broad right to direct the disposition of their own remains after death. However, an inconsistent patchwork of state statutes has complicated and frustrated this fundamental common law right. Many states require decedents to comply with strict formalities, or prohibit decedent control outright.

Trusts & Estates

ERISA Preemption of State Power of Attorney Laws and the Role of Powers of Attorney in ERISA Plan Administration

Kevin Allen Wiggins was an ERISA attorney in private practice in the Pittsburgh, Pennsylvania area at the time of his death on June 11, 2019. A graduate of Cornell Law School and the University of North Florida, he had over twenty years of legal experience in the employee benefits field and served on the United States Department of Labor ERISA Advisory Council from 2008 to 2010. He was actively involved with the ABA Real Property, Trust and Estate Law Employee Benefits and Executive Compensation Group. Prior to his legal career, he served in the United States Navy as an Arab linguist from 1989–1994. Mr. Wiggins is remembered and mourned by a host of family, friends, and professional colleagues. The Journal appreciates the assistance of Kevin’s fellow ERISA attorneys, Lori Oliphant, Karen Suhre, and Jessica Morrison, in finalizing this Article for posthumous publication.

ERISA is a federal law that generally regulates employee welfare and retirement benefit plans. One of ERISA’s central purposes is to allow plan administrators to apply uniform laws of administration nationwide. In this Article, the relationship between ERISA and state power of attorney laws is examined, especially as it relates to clients of trust and estate attorneys. Specifically, the author seeks to address whether state law can compel a plan to accept the instructions of an attorney-in-fact.

Trusts & Estates

Section 2041(A)(3): A Trap Not Easily Sprung

by Kasey A. Place

Section 2041(a)(3) of the Internal Revenue Code is referred to as the Delaware Tax Trap. Despite its pejorative name, the Delaware Tax Trap can be a great tool for generating tax savings with respect to trust assets under the right circumstances. However, it is not as readily available as one might think. This Article explores important and often overlooked obstacles that limit its applicability so that practitioners can better identify circumstances in which springing the Trap is an option.

Trusts & Estates

A Wil(l)ful Legacy: The Necessity of Including Intangible Assets in a 21st Century Estate Plan

by Dalton Barfield

In this Article, the author explores and offers a solution to the estate planning dilemma of “shirtsleeves to shirtsleeves in three generations,” in which approximately 90% of inheritances and family-owned businesses do not survive beyond three generations. The author advocates for the use of “legacy planning” to increase the survival odds of inheritances, family-owned businesses, and inter-generational relationships. Legacy planning—the inclusion of intangible assets in an estate plan—encourages family members to determine and discuss the values behind their wealth or business. When the creators of wealth and businesses explain the meaning of their tangible assets to the individuals chosen to inherit them, the inheritance becomes a legacy.

Real Property Trust and Estate

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