Texas Tech Estate Planning & Community Property Law Journal
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Item Project Runaway—One Day You’re in as the Attorney and the Next Day You’re Out!(Estate Planning & Community Property Law Journal, 2008) Gardner, Sharon B.This article traces the history of attorney liability in Texas as it relates to probate and trust lawyers. After reviewing the general concepts of liability, the articles discusses claims unique estate planning, probate, and trust law. This article then suggests ways to reduce potential liability in these often uncharted waters. The article further discusses a recent ethics opinion, requested from the State Bar of Texas by the author’s law firm, regarding passing the cost of the legal malpractice claim defense to the underlying client in a way that is ethical when the claim is made by a third party.Item To Affirmatively Disclose or to Passively Disclose, That is the Texas Trustee’s Question: What Duty of Disclosure Does a Texas Trustee Owe to a Beneficiary?(Estate Planning & Community Property Law Journal, 2008) Messina, Frank T.As a general matter, the crux of a trustee's duties lies in the effective administration of the trust for the benefit of the beneficiary. A key component in accomplishing this duty is disclosing pertinent information to the beneficiary. The difficulties that surround a Texas trustee's duties are most evident in this capacity. And, as if the trustee's role is not already difficult enough, the role's difficulty is compounded by the Texas legislature's inability to establish a bright-line standard on the form of disclosure a trustee is required to give a beneficiary. The law's lack of clarity in regards to trustee disclosure has left trustees in the precarious position of not knowing when information warrants disclosure. This position potentially causes trustees to fail to disclose pertinent information and exposing trustees to a host of libelous predicaments. This article argues that, to execute this pivotal duty, trustees must have clear and detailed guidelines on what information is considered pertinent. Otherwise, trustees must make blind guesses in regards to tasks that are central to the trustees’ fiduciary duties to the beneficiaries.Item The “Socially Endorsed, Legally Framed, Normative Template”: What Has In Re Marriage Cases Really Done for Same-Sex Marriage?(Estate Planning & Community Property Law Journal, 2008) McCalla, MeghanThe allowance of same-sex marriage remains a contentious subject at the local, state, and federal level. Although celebrity and non-celebrity couples alike were able to marry, that legal marital status may not have conferred much more than a title. The California Supreme Court's decision in In re Marriage Cases, handed down May 18, 2008, made same-sex marriage possible in the state of California. However, with California's comprehensive domestic partnership laws, marriage rights and obligations, and the Defense of Marriage Act, the question becomes whether the California Supreme Court actually did anything worth celebrating or admonishing. This article hopes to elucidate the potential progress or stagnancy of same sex marriage proffered by the California Supreme Court.Item Avoiding the Estate Planning “Blue Screen of Death”—Common Non-Tax Errors and How to Prevent Them(Estate Planning & Community Property Law Journal, 2008) Beyer, Gerry W.Estate planners have the ability to reduce the likelihood of a malpractice action. The chances for a malpractice action increase when there is poor client interactions, errors in will drafting and improper will executions. Joint representation creates further issues when estate planning is done simultaneously for a married couples. Awareness of the potential issues will ensure an estate planner is well prepared to draft legally sound estate plans.Item On Death and Dying: Counseling the Terminally Ill Client and the Loved Ones Left Behind(Estate Planning & Community Property Law Journal, 2008) Akers, GeorgiaTerminally ill clients go through psychological stages of dying, and each stage may have an impact on estate planning. Clients may also ask for unusual legal advice that is not normally what attorneys encounter. This comment argues that lawyers who draft estate planning documents need to be aware of these stages and be prepared for requests for unusual advice. After the death of the client, estate attorneys are faced with assisting the family with the management of the estate. This article discusses the implications of DNRs, Hospice, Social Security, Disability, Widows’ Gap, Medicare, Pain Management, and more to help facilitate the transition of the client and their family at the time of their loved one’s death.Item Selected Problems in Planning with Retirement Benefits: Community Property Issues and Creditor’s Rights(Estate Planning & Community Property Law Journal, 2008) Golden, Alvin J.There are eight community property jurisdictions in the United States. Two of these states are among the three most populous states in the country: California and Texas. Although some politicians believe that community property statutes were enacted as a tax avoidance device, most of the community property jurisdictions trace their community property statutes to old Spanish law. Generally, community property is all property acquired during marriage except property acquired by gift, devise, or descent. Most believed that state exemption statutes extended to inherited IRAs, and it may well be that the state courts would reach such a result. The policy argument in protecting inherited IRAs is that creditors should not be allowed to reach the retirement benefits of an owner. However, these funds are clearly not set aside for the retirement of the beneficiary. Because of their ability to cash out, which over 75% do, inherited IRAs become no different than a bank account. This article suggests that if the owner wishes to protect the asset for the beneficiary, then the owner should use a spendthrift trust or trusteed IRA.Item Public Policy or Political Correctness: Addressing the Dilemma of Applying Public Policy to Inheritance Issues(Estate Planning & Community Property Law Journal, 2009) Elmore, Christopher T.Public policy is a focal background point for legal rules and decisions. However, the ongoing debate among legal scholars is what role, if any, public policy should really play in the law. The issue in estate planning is what courts can rely on in order to hold an inheritance provision invalid based on public policy. This comment is discusses what exactly “public policy” is and its scope of application. States define and apply public policy differently, creating inconstancy in the law. The comment discusses the multiple ways of public policy interpretation and then proposes framework to implement constancy.Item Is the Wind Mine to Give Away? Guidance for Testators Wishing to Transfer a Wind Interest(Estate Planning & Community Property Law Journal, 2009) Hartman, ChristiansonThis article discusses the issues surrounding severing wind rights from real property. The article reviews the importance and growth of wind energy, creating a wind energy lease, and devising royalties from the severed rights. Finally, the article discusses how estate planners can effectively represent the testator’s intent with regard to wind energy rights.Item An Arm and a Van Gogh: Selling Art Collections from Charitable Contributions for Capital Gain is a High Price to Pay(Estate Planning & Community Property Law Journal, 2009) Loving, MeganInstitutions often turn to selling off gifts or charitable trusts that have been donated as a creative solution to increase their endowments. This article discusses donations and the impact of the donor’s intent for gifts and charitable trusts. Fiduciary obligations of trustees differ under Cy Pres Doctrine and the Doctrine of Deviation. The author proposes various methods of clarity of the intent of donors and trustees.Item The Slip and Fall of the California Legislature in the Classification of Personal Injury Damages at Divorce and Death(Estate Planning & Community Property Law Journal, 2009) Chang, Helen Y.This article argues that by classifying all personal injury proceeds as community property during marriage, the California Legislature failed to consider the nature of personal injury damages as replacement compensation for both economic damages, such as past lost wages, future lost wages, lost earning capacity, medical expenses, as well as non-economic damages of pain and suffering. These component parts could readily be allocated for classification. Instead, the monies are classified as Community property in toto during marriage and are awarded to the injured spouse at divorce absent proof that justice requires an alternate disposition. The California statute provides an ambiguous standard as to when "justice require[s] another disposition" of the proceeds at dissolution, leaving the court with broad discretion over the division of such monies at divorce and leaving little predictability for spouses. This article addresses the various problems that arise from this convoluted scheme of classification and treatment.Item Postmortem Sperm Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows(Estate Planning & Community Property Law Journal, 2009) Radford, Mary F.As science and technology continues to evolve, the law must do so as well. However, the law almost always lags behind. This is certainly true concerning Postmortem Sperm Retrieval and the status of a child as a decedent if they are conceived after a father has died. A major point of focus is if the child qualifies as a dependent child who can receive social security benefits from their deceased father. Courts traditionally have varied on this issue and only a few states have adopted legislation addressing this concern. This article looks at both Gillert-Netting v. Barnhart and Vernoff v. Astrue cases and their ramifications in the Ninth Circuit.Item Intra-Family Loans(Estate Planning & Community Property Law Journal, 2009) Borrett, C. ChristineAn intra-family loan can be a simple and effective estate planning tool for wealthy parents to transfer assets to their children without gift tax implications. These loans can be made at interest rates lower than those available for commercial loans because children can borrow from parents and grandparents with interest payable at the applicable federal rate. This article covers loan basics for income and gift tax purposes with an emphasis on transactions common in the family context. Additionally, income and gift tax consequences of debt forgiveness is addressed as many intra-family loans are later pardoned.Item Who’s Your Daddy? Exhumation to Establish Paternity Must be Reigned in by a Uniform Procedure(Estate Planning & Community Property Law Journal, 2009) Wheeler, CourtneyEstablishing paternity when one of the potential parents is deceased presents a tricky and often sensitive situation. In order to do this DNA testing an exhumation order is necessary. The courts struggle with what evidentiary standard to apply to these exhumation requests. This article explores the various standards applied throughout the United States and advocates for a uniform evidentiary standard and procedure which will help alieve some of the problems children seeking to prove paternity face.Item Cryopreserved Sperm and the Shortcomings of Probate Law(Estate Planning & Community Property Law Journal, 2009) Major, BenjaminThis article raises some of the many questions that exits under current law concerning cryopreserved sperm and probate law that need to be addressed by updating state law. The article discusses issues such as human tissue being treated as property, the changes in the judicial treatment of cryopreserved sperm, and the issue of whether it constitutes property are addressed in this article on marital property law and its effects on disposal of a decedent’s cryopreserved sperm. The comment also discusses the issues surrounding determination of who the child belongs to, what type of visitation rights and adoption rights apply and the potential issues when the "Rule Against Perpetuities" also comes into effect.Item Cutting Edge vs. Over the Edge: Ethics and Malpractice Issues for Medicaid Planning(Estate Planning & Community Property Law Journal, 2009) Sitchler, Patricia F..Maintaining high ethical standards and preventing malpractice is imperative for every practicing attorney. This article focuses on Medicaid and Elder Law ethical duties. Medicaid planning, for long-term medical care, is becoming an increasingly utilized function under the law; however, it also raises important ethical considerations. First, an attorney needs to consider who their actual client is. In elder law situations, this can be difficult because often family members contact an attorney about an aging individual in their family, and many family members have a stake in the estate planning of the aging individual. Second, an attorney needs to be aware of utilizing Medicaid when other financial services are available to their clients. Finally, this comment concludes with a reminder of professional conduct to elder clients and its implications for attorneys.Item Can Estate Planners and Trust Administrators Offer Help to Trust Beneficiaries Who Want to Learn to Make Positive Life Planning Decisions?(Estate Planning & Community Property Law Journal, 2009) Whitman, RobertThis article discusses the desire to protect trusts and how the desires of the Trustee can be ensured through the proper questions from the estate planner or trust administrator. The comment suggests methods that will help practitioners create governing instruments that will facilitate flexible trust administration. Corporate fiduciaries can also organize help trust beneficiaries make better choices. The article suggests that a life planning officer is helpful to different types of beneficiaries. Estate planners and trust administrators can better serve the public’s need for effective wealth transmission and lower the levels of controversy surrounding trust administration by expanding their role as counselor to their clients.Item Protecting Trust Assets from the Federal Tax Lien(Estate Planning & Community Property Law Journal, 2009) Camp, Bryan T.One common issue facing those who create trusts is how to protect beneficiaries from creditors. One of the biggest creditors is the Internal Revenue Service (IRS), which has two weapons of mass collection: the federal tax lien and the federal tax levy. These weapons regularly pierce boilerplate spendthrift provisions. Discretionary trusts do not fare much better. Court decisions over the past ten years made it increasingly likely that even pure discretionary trusts contain clauses that will traitorously turn over the treasure house keys to the federal tax lien. Once the lien attaches, the IRS can enforce it through either administrative or judicial attachments, blowing through state law barriers that keep out other creditors. This Article offers some ideas on how to keep the federal tax lien locked out from trust assets using property law concepts of springing and shifting executory interests.Item The New Importance of Advance Directives(Estate Planning & Community Property Law Journal, 2009) Morgan, Rebecca C.Advanced directives are becoming a very important aspect of the estate planning process. When a patient does not have an advanced directive, decisions are left to the family and they may or may not uphold what the patient would have wanted. Thus, it is very important for everyone to have an advanced directive to determine their own end of life care. This article explores the history and development of advanced directives in the United States; then looks at four different cases and how the lack of an advanced directive complicated matters, particularly on the concurrently private and public nature of these disputes; and finally, this article explores future possibilities of advanced directives.Item Destroyed Community Property, Damaged Persons, and Insurers’ Duty to Indemnify Innocent Spouses and Other Co-Insured Fiduciaries: An Attempt to Harmonize Conflicting Federal and State Courts’ Declaratory Judgments(Estate Planning & Community Property Law Journal, 2009) Rice, Willy E.One of the most common and expensive purchases of the general American consumer is insurance policies. These policies can range from life to property protections. One of the key reasons for maintaining an insurance policy is deviant fiduciaries that destroy the interest of other fiduciaries. However, one of the major issues is that many of the insurance policies purchased are standard that are poorly drafted with ambiguous language. This leads, naturally, to litigation, subjecting state and federal courts to interpret the contracts. Often, innocent co-fiduciaries suffer because of the harmful acts of another fiduciary because the standard insurance contract does not protect their interests’ adequately. Data explored in this article shows that traditional contract interpretation is the most beneficial to innocent parties. The most critical point, however, is to thoroughly understand and negotiate insurance contracts.Item Calling All Criminals, Our State Will Protect Your Crack House: Homestead Protection’s Application to Forfeiture Resulting from Criminal Conduct(Estate Planning & Community Property Law Journal, 2009) Tawney, JamesAmerica has long protected homestead rights. However, there is a conflict between state homestead protections and the concept of forfeiture of property as a criminal punishment. This comment first addresses the history and intention of homestead protection and forfeiture of assets in America, then examines cases and case law that both support and argues against homestead protections. Finally, this comment looks at how federal forfeiture statutes preempts state homestead protection. The conclusion argues that states need to adopt legislation that prohibits the use of homestead protection as a defense against forfeiture resulting from criminal conduct.