Real Property, Trust and Estate Law Journal

The RPTE Law Journal is a scholarly law review journal published three times annually by the Real Property, Trust and Estate Law Section with assistance from the University of South Carolina School of Law.

Spring 2017, Vol 52, No 1 (Full PDF)
These articles are available to download for ABA RPTE members only. To access them, join us today!

Making Divorce Less Taxing: A Unique Opportunity for Income, Estate, and Gift Tax Planning
Justin T. Miller
Divorce often is an emotionally traumatic experience, and dealing with tax considerations in divorce only adds to the psychological burden. However, addressing the unique tax issues that arise in divorce should be an integral part of the marital dissolution process. The problems that can result from poor tax planning may not surface until months or even years after a divorce, and attempts to fix those problems—if even possible—may be extremely difficult, time-consuming, and expensive. To help plan for taxes during a divorce and avoid various traps for the unwary, this Article addresses ten common issues that should be considered during the marital dissolution process, especially when working with high net worth spouses who typically have more complicated income, estate, gift, and generation skipping transfer tax planning needs.

The New Uniform Digital Assets Law: Estate Planning and Administration in the Information Age
Michael D. Walker
The "Information Age" has significantly changed the estate planning process by adding digital assets to decedents' estates. This Article examines the definition of digital assets, as well as the state and federal laws affecting digital assets. It also provides estate planning attorneys with advice on how to deal with digital assets in estate planning and administration.

The Restricted Charitable Gift as Third-Party-Beneficiary Contract
William P. Sullivan
Although American law has traditionally barred the donor of a restricted charitable gift from enforcing the terms of his or her gift, most American jurisdictions now permit donors to enforce gift restrictions under at least some circumstances. The nature and extent of the right of enforcement, however, remain uncertain. This Article argues that the uncertainty surrounding enforcement is best resolved by treating restricted charitable gifts as third-party-beneficiary con-tracts. The Article presents a contractarian analysis of restricted charitable gifts, subjects alternative analyses to conceptual and practical critique, and suggests several modifications to the American Law Institute's forthcoming Restatement of the Law of Charitable Nonprofit Organizations to facilitate appropriate contractual interpretation of restricted-charitable-gift instruments.

The Private Trust Company: A DIY for the Uber Wealthy
Christopher Weeg
This Article focuses on the rise of private trust companies and how estate planners and settlors can use them while avoiding adverse tax consequences. In this analysis, this Article will explore the history, structures, tax consequences, and other considerations in using private trust companies. Furthermore, this Article will survey the laws of different states that have adopted legislation enabling private trust companies, and it will analyze the differences among them.

Summer 2017, Vol 51, No 3 (Full PDF)
These articles are available to download for ABA RPTE members only. To access them, join us today!

Credit-Agreement Statutes Revisited: Are Equitable Defenses Permitted?
John C. Murray
Within the last three decades, there has been a surge in lender-liability claims against mortgage lenders. In response to this surge, many states have enacted credit-agreement statutes to protect these lenders from claims of oral modification of loan agreements. This Article covers the history and the rise of such state credit-agreement statutes and how courts have interpreted them. This Article focuses on the courts' inconsistent interpretations of whether equitable claims and defenses such as equitable estoppel, waiver, partial performance, and bad faith are available to borrowers. Additionally, this Article analyzes the Illinois Credit Agreements Act and how Illinois courts have interpreted it. Lastly, this Article covers the proposed ABA "Model Lender Liability Limitation Statute" and discusses its stance on equitable defenses.

Land Use Law and Sidewalk Requirements under the Americans with Disabilities Act
Robin Paul Malloy, Sarah Spencer & Shannon Crane
A significant percentage of American families have a family member with a mobility impairment. The numbers will increase as our population continues to age. Therefore, it is important to focus on accessibility so that people can safely and easily navigate their local communities. This Article deals with the legal obligation to make communities accessible under the Americans with Disabilities Act (ADA). Specifically, this Article addresses the intricate regulations applicable to sidewalks. Local communities must construct, repair, and maintain sidewalks in compliance with the ADA. This obligation includes removing obstacles to accessibility such as snow, even in snow-belt communities that would prefer to avoid the cost of snow removal.

The Intersection of Trusts and Anti-Trust: Why You, an Estate Planner, Should Care about Hart-Scott-Rodino
Jay D. Waxenberg & Jason A. Lederman
This Article addresses how the Hart-Scott-Rodino Antitrust Improvements Act (HSR) affects estate planning transactions and how estate planners might resolve issues arising out of HSR. This Article also discusses the principles and the law under HSR. To help estate planners better understand the provisions of HSR, this Article briefly covers the key terminology, the coverage, and the exemptions of HSR. Additionally, this Article analyzes the application of HSR to Grantor Retained Annuity Trusts (GRATs) and other irrevocable trusts. Lastly, this Article discusses public policy and provides suggested changes to HSR.

Using Equity To Aid The Exercise Of A Power Of Appointment that Fails To Specifically Refer To The Power
Kenneth W. Kingma
An estate plan today often grants a power of appointment that contains a specific reference requirement, which requires the donee of the power to specifically refer to the power when exercising it. Sometimes a dispute arises over whether an attempted exercise of a power of appointment satisfied a specific reference requirement. Such disputes often involve a blanket exercise clause in the donee's estate plan that attempts to exercise all of the donee's powers of appointment. This Article examines the common law equitable rule that aids an attempted exercise of a power of appointment by not requiring rigid compliance with a specific reference requirement. This Article also examines how three Restatements of Property and the Uniform Powers of Appointment Act have summarized and applied the equitable rule.

Basics of Firearm Transfers for Estate and Probate Lawyers
Benjamin Dean
Estate planners and probate lawyers are currently unaware of the issues concerning firearms in estates and the potential criminal penalties associated with failure to comply with the appropriate transfer requirements. With firearm ownership in the United States at an all-time high, it is crucial that attorneys become familiar with these laws to enable their clients to pass on their assets without fear of criminal prosecution and to protect the attorneys themselves from civil or criminal liability. This Article provides detailed information concerning the law of firearms transfers, how it interacts with both estate planning and probate work, as well as practical issues, and pitfalls that attorneys should be prepared to advise their clients.

 

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Reprint Permission Policies

The Section's Executive Committee approved these updated policies in November 2011.