Probate & Property Magazine

Keeping Current-Probate offers a look at selected recent cases, rulings and regulations, literature and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.


* TAX APPORTIONMENT: Will provision prevails over statutory apportionment. 
The decedent's will directed that all death taxes be paid from the residue and defined death taxes to include all estate, inheritance and succession taxes "which are assessed by reason of my death." In Peterson v. Mayse, 993 S.W.2d 217 (Tex. Ct. App. 1999), the court held that the apportionment clause overrode the statutory apportionment rule.

* EQUITABLE ADOPTION: Proof must be by clear and convincing evidence. In Williams v. Estate of Pender, 738 So. 2d 453 (Fla. Dist. Ct. App. 1999), the court required clear and convincing evidence of each of the five elements of equitable adoption: 1) agreement to adopt, 2) performance by the natural parents by surrender of custody, 3) performance by child by living in the home of the foster parents, 4) partial performance by the foster parents by taking the child into their home and treating the child as their own and 5) intestacy of the foster parents. For a similar holding, see Welch v. Wilson, 516 S.E.2d 35 (W. Va. 1999).

* REPUBLICATION BY CODICIL: Post-marriage codicil republishes premarital will. A testator executed his will and married his wife later that day. He subsequently adopted his wife's child. After the adoption the testator executed two codicils. His wife alleged that the will was revoked by a state statute providing that a subsequent marriage and birth or adoption of a child revokes a premarital will. The court in In re Estate of Wells, 983 P.2d 279 (Kan. Ct. App. 1999), held the will effective because it was republished by codicil after the marriage and adoption.

* ATTORNEY'S FEES: Executor's undue influence precludes payment from estate. A will was denied probate because the executor exercised undue influence over the decedent. That executor moved for payment of his lawyer's fees from the estate, but the court denied the fee application. In re Estate of Herbert, 979 P.2d 1133 (Haw. 1999).

* DOMICILE: Decedent's intent outweighs physical location of property. The decedent's estate was administered in Massachusetts. An after-death survey of the decedent's property revealed that 11% of the property, including his house, was actually located in Connecticut. The court in Bernier v. DuPont, 715 N.E.2d 442 (Mass. App. Ct. 1999), held that the decedent intended to reside in Massachusetts and Massachusetts courts had jurisdiction based on the decedent's domicile.

* PRETERMITTED CHILD: Nonmarital child entitled to forced share. A decedent's will was executed before the birth of his child. Although the child's mother was married to someone else at the time of the child's birth, the court held that the child qualified as a pretermitted child because there was clear and convincing evidence of paternity overcoming the presumption that the mother's husband was the child's father In re Matter of Wilkins, 691 N.Y.S.2d 878 (N.Y. Surr. Ct. 1999).


* GST TAX: Failure to allocate exemption on Schedule R excused under substantial compliance doctrine. PLR 199937026. 

* INCOME TAX BASIS: Beneficiary not estopped from claiming a stepped up basis greater than the fair market value of the asset shown on the estate tax return. TAM 199933001.

* MARITAL DEDUCTION: Savings clause in deceased spouse's will sufficient to support interpretation limiting distribution to surviving spouse consistent with marital deduction rules. TAM 199932001.

* POWER OF APPOINTMENT: Trustee's power to amend a trust determined not to be a general power because the trustee had no beneficial interest in the trust and the grantor's intent was to benefit the trustee's children. FSA 199830026.

* VALUATION: Special valuation rules of Code § 2701 may apply to formation of a partnership. TAM 199933002.


* Asset protection trusts. Recent articles discussing asset protection trusts include David Aronofsky, Montana's Foreign Capital Depository Act: A Financial Pie in the Rocky Mountain Sky or a Sensible New Assets Attraction Approach?, 32 Vand. J. Transnat'l L. 711 (1999); Eric Henzy, Offshore and "Other" Shore Asset Protection Trusts, 32 Vand. J. Transnat'l L. 739 (1999); Gideon Rothschild et al., Self-Settled Spendthrift Trusts: Should a Few Bad Apples Spoil the Bunch?, 32 Vand. J. Transnat'l L. 763 (1999); Amy Lynn Wagenfeld, Law for Sale: Alaska and Delaware Compete for the Asset Protection Trust Market and the Wealth that Follows, 32 Vand. J. Transnat'l L. 831 (1999).

* Attorney-client privilege. For a discussion of the posthumous application of the privilege, see Forrest Shea Browning, Swidler & Berlin v. United States: A Grave Decision-When Does Attorney-Client Privilege Have a Life of its Own?, 22 Am. J. Trial Advoc. 671 (1999).

* Body disposition. Jennifer E. Horan recommends a functional approach to family status for same-sex couples when disposing of remains in " When Sleep at Last Has Come": Controlling the Disposition of Dead Bodies for Same-Sex Couples, 2 J. Race, Gender & Just. 423 (1999). 

* Charitable trusts. Recent articles include: Jonathan Gopman and Daniel Mielnicki, New Perspectives in Planning with Testamentary Charitable Lead Annuity Trusts, Tr. & Est. 46 (June 1999); Paula Kilcoyne, Charitable Trusts - Donor Standing Under the Uniform Management of Institutional Funds Act in Light of Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 21 W. New Eng. L. Rev. 131 (1999); Conrad Teitell, Charitable Remainder Trusts-Final Regulations, Tr. & Est. 36 (Aug. 1999).

* Conservation easements. For a review of conservation easements benefits, see Brenda J. Brown's Land Preservation Provides Estate Tax Benefits: Section 2031(c), 17 UCLA J. Envtl. L. & Pol'y 117 (1998). 

* Contracts to make a will. Jason Thomas King recommends a constructive trust remedy rather than enforcing a promise to make a will in Lifetime Remedies for Breach of a Contract to Make a Will, 50 S.C. L. Rev. 965 (1999).

* Defamation after death. Raymond Iryami discusses the history and recent developments related to the departed's reputation rights in Give the Dead Their Day in Court: Implying a Private Cause of Action for Defamation of the Dead from Criminal Libel Statutes, 9 Fordham Intell Prop. Media & Ent. L.J. 1083 (1999).

* Family-owned businesses. Recent articles focusing on family-owned businesses include: Shannon E. O'Brien, Estate Tax Treatment of Family-Owned Businesses: The Evolution of Internal Revenue Code Section 2057, 67 UMKC L. Rev. 495 (1999); Sebastian V. Grassi Jr., Drafting for the Family-Owned Business Deduction, 90 J. Tax'n 358 (1999); and Neil E. Harl, The Family-Owned Business Deduction: Still in Need of Repairs, Drake J. Agric. L. 59 (Spring 1999).

* Foreign trust taxation. Donald D. Kozusko and Stephen K. Vetter question Respect for "Form" as "Substance" in U.S. Taxation of International Trusts, 32 Vand. J. Transnat'l L. 675 (1999). Carlyn S. McCaffrey & Elyse G. Kirschner discuss foreign trusts and the requirements they impose in Learning to Live with the New Foreign Nongrantor Trust Rules, 32 Vand. J. Transnat'l L. 555 (1999).

* Limited liability companies. For a review of limited liability companies, see Thomas W. Jacobs and Thomas J. Callahan, What Tax Lawyers Need to Know About Single Member Limited Liability Companies, Prac. Tax Law. 7 (Summer 1999).

* Long-term care insurance. Robert D. Hayes, Nancy G. Boyd and Kenneth W. Hollman stress the importance of advising elderly clients to purchase insurance packages in What Attorneys Should Know About Long-Term Care Insurance, 7 Elder L.J. 1 (1999).

* Medicaid. Omar N. Ahmad provides an overview of the Medicaid program and discusses the "income-first" rule in Medicaid Eligibility Rules for the Elderly Long-Term Care Applicant, History and Developments, 1965-1998, 20 J. Legal Med. 251 (1999).

* Negligent trust situs. A possible new tort is discussed in Michael J. Myers and Rollyn H. Samp, South Dakota Trust Amendments and Economic Development: The Tort of "Negligent Trust Situs" at its Incipient Stage, 44 S.D. L. Rev. 662 (1998).

* Omitted spouse. David E. Wagner explores South Carolina's omitted spouse statute in The South Carolina Probate Code's Omitted Spouse Statute and In Re Estate of Timmerman, 50 S.C. L. Rev. 979 (1999).

* Professional athletes. For a view of estate planning for the professional athlete, see Joseph D. Wright's Skyrocketing Dollars and the Tax Reform Act of 1997: Estate Planning for the Professional Athlete in a New Millennium, 6 Sports Law J. 27 (1999).

* Professional responsibility. The Judge Advocate General's School shares its experience in TJAGSA Practice Note: Wills and Professional Responsibility Notes, Army Law. 30 (July 1999).

* Purpose trusts. Adam J. Hirsch reviews the purpose trust provisions of the UPC in Trusts for Purposes: Policy, Ambiguity, and Anomaly in the Uniform Laws, 26 Fla. St. U. L. Rev. 913 (1999).

* QTIP election. June R. Kitagawa examines Code § 2056 in QTIP Election Invalid Where the Will Allowed Reduction in the Surviving Spouse's Interests: Estate of Rinaldi v. United States, 52 Tax Law. 617 (1999).

* Qualified retirement plan. Louis S. Harrison shares his methods for minimizing at-death transfers of tax-deferred assets in Creative and Strategic Estate Planning for Transfer of Qualified Retirement Assets, 87 Ill. B.J. 480 (1999).

* Tax liens on inherited property. Andrew J. Lawrence recommends strategies in State Law Disclaimer Did Not Prevent the Attachment of Federal Tax Liens to Inherited Property: Drye Family 1995 Trust v. United States, 52 Tax Law. 627 (1999).

* Tax returns. Glen A. Yale shares his instructions and checklist in Obtaining Information to Complete the Form 706, Prac. Tax Law. 29 (Summer 1999).

* Trust companies. Anne Luke Boozer, Hal Pennington and William W. Rodgers discuss the trust industry in Case Study: A Trust Culture That Works, Tr. & Est. 28 (Aug. 1999).

* Trust taxation. Robert T. Danforth offers A Proposal for Integrating the Income and Transfer Taxation of Trusts in 18 Va. Tax Rev. 545 (1999).

* Trusts. For an overview of recent developments, see Edward C. Halbach, Jr., Significant Trends in the Trust Law of the United States, 32 Vand. J. Transnat'l L. 531 (1999).

* Undue influence. Brian Alan Ross argues that a woman's testamentary choices are often overruled as punishment for her challenging traditional gender roles in Undue Influence and Gender Inequity, 19 Women's Rts. L. Rep. 97 (1997).

* Uniform prudent investor Act. Martin D. Begleiter shares the results of his study in Does the Prudent Investor Need the Uniform Prudent Investor Act - An Empirical Study of Trust Investment Practices, 51 Me. L. Rev. 28 (1999).

* Valuation of lottery winnings. Ja Lee Kao focuses on Valuing Future Lottery Winnings for Estate Tax Purposes: Estate of Shackleford v. United States, 52 Tax Law. 609 (1999).

* Viatical settlements. Miriam R. Albert's proposal for decreasing fraudulent viatical settlements is found in The Future of Death Futures: Why Viatical Settlements Must be Classified as Securities, 19 Pace L. Rev. 345 (1999). 

* Will contests. Ronald Chester examines mediation as an alternative to will contests in Less Law, But More Justice?: Jury Trials and Mediation as Means of Resolving Will Contests, 37 Duq. L. Rev. 173 (1999).


* California authorizes nonprofit charitable corporations to be appointed as trustees under specified circumstances. 1999 Cal. Legis. Serv. ch. 424. 

* California creates statewide registry for guardians and conservators. 1999 Cal. Legis. Serv. ch. 409.

* California establishes presumption that transfer of community and quasi-community property to a revocable trust is an agreement that those assets retain their character. 1999 Cal. Legis. Serv. ch. 263.

* California revises creditor claims procedures. 1999 Cal. Legis Serv. ch. 263. 

* Illinois prohibits discrimination of recipients of donated organs based on potential donee's disability. 1999 Ill. Legis. Serv. P.A. 91-345.

* Illinois requires reporting of charitable trust for the benefit of a minor or a disabled person to the person's parent or guardian. 1999 Ill. Legis. Serv. P.A. 91-620.

* New York revises estate tax apportionment statute relating to qualified terminable interest property. 1999 N.Y. Legis. ch. 380.

* North Carolina clarifies the circumstances under which an agent may make gifts under a durable power of attorney. N.C. Laws S.L. 1999-385.

* Ohio revises probate laws, including will revocation and bonding requirements. 1999 Ohio Legis. file 71.


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