Texas Tech Estate Planning & Community Property Law Journal
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Item Mitigating the Lack of Wills One Brochure at a Time(Estate Planning and Community Property Law Journal, 2021) Barker, KatelynItem A Piece of You and I: Posthumous Conception and Its Implications on Texas Estate Law(Estate Planning & Community Property Law Journal, 2021) Mejia, Alexis C.Item Was it Wise to Try to Implement Trust Law Reforms Through the Uniform Prudent Management of Institutional Funds Act?(Estate Planning and Community Property Law Journal, 2021) Schwartzel, C. BooneThis Article focuses on two topics that are tangential to UPMIFA’s primary focus on the management and investment of endowment funds and have received little attention: (1) how UPMIFA should apply to institutional funds established between affiliated institutions in light of UPMIFA’s new definitions and expanded scope, and more importantly (2) how the Commissioners’ preoccupation with reforming trust laws creates significant, unnecessary, and avoidable problems under UPMIFA. Recognizing that there are differences between charitable trusts and charitable institutions, the Commissioners sometimes had to choose when trust law principles should apply and when they should not. In UMIFA, for example, the Commissioners adopted an “ordinary business care and prudence” standard of conduct, concluding that “[t]he proper standard of responsibility is more analogous to that of a director of a business corporation than that of a professional private trustee,” and recognizing that the governing board owes duties to the institution to consider both its long and short-term needs and “weigh the needs of today against those of the future.” These differences cause both UPMIFA and UPMIFA to be a blend of sometimes conflicting legal frameworks.Item U.S. – Mexico Cross-Border Estate Planning: Planning Techniques from a U.S. and Mexican Perspective(Estate Planning and Community Property Law Journal, 2021) Rosenblatt, Michelle; Esparza, Abril RodriguezThe border between the United States (U.S.) and Mexico is more than 1,900 miles long. Texas and Mexico share 1,251 miles of that border. The two countries share more than just a line on a map; the people of Mexico and the U.S. are bound together by close economic, cultural, and historical relationships that have existed for generations. This Article intends to provide advisors with a general perspective of the cross-border estate planning issues that arise from both the U.S. and Mexican perspectives.Item Unanswered Questions in Wills and Trusts (And how to try and Answer Them)(Estate Planning and Community Property Law Journal, 2021) Moore, Joyce W.; Kelso, Christian S.The genesis of this Article was to present a set of questions about estate and trust law for which there are no perfect answers under Texas law at present. As is often the case in these projects, the focus evolved a little bit, and a section has been added that presents various construction rules that might be of value to readers. Thus, the authors hope to shed light specifically on the questions presented and help practitioners approach other questions that may not have clear answers. The questions presented, which Parts III–IV of this Article pose, are as follows: ● The cloud cast by XTO: Does a trust beneficiary have the right to bring a derivative claim on behalf of the entire trust for damages or equitable relief against the corporation or individual serving as trustee? ● Who is entitled to demand trust accountings, and can that entitlement be limited? ● Can a testator exculpate an independent executor for breach of a duty imposed on him by statute or common law? ● What limits can be placed on the fiduciary duties of trust protectors? ● Can a party be estopped from contesting a will by accepting its benefits? ● What rights do charitable major disaster beneficiaries have to notice of trust activities?Item Sucking Success Out of Minor Social Media Influencers: A Call for Testamentary Capacity Rights in Texas(Estate Planning and Community Property Law Journal, 2021) Munoz, SymphonyPart II of this Comment dives into the historical background of the evolving testamentary capacity age by examining societal shifts. This portion highlights that the testamentary capacity age has historically adapted to fit the surrounding societal circumstances to demonstrate that the testamentary capacity age is not fixed. This section also discusses the current testamentary capacity standards as well as public policy supporting these issues. By doing so, the discussion emphasizes that current safeguards could be extended to protect the interest of commercially valuable minor social media influencers (CVMSMIs). The next section of this Comment, Part III, focuses on minors’ rights in other areas of the law. This portion supports the argument that current laws covering minors are applied inconsistently. These inconsistencies arise because minors are granted more rights in other areas of the law that are arguably more regulated than testamentary law. This means that the testamentary capacity requirements arbitrarily disregard the rights of minors, due to their age, while other areas of the law recognize the importance of providing exceptions to qualifying minors. Part IV of this Comment addresses and examines the current laws regarding digital assets, and specifically, dives deeper into Texas’s adopted approach. This examination of the laws governing current digital asset planning calls for the Texas legislature to provide an exception to a CVMSMI to execute a valid will. Without the ability to execute a valid will, minors’ heirs may not be able to access their digital assets, though the account is valuable. Part V of this Comment explains the valuation of social media accounts. This section addresses the problematic situation CVMSMIs are in, explaining what a social media influencer is and the impact they have on society. The information discussed illustrates the need for an exception applicable to CVMSMIs in testamentary capacity law. By doing so, this Comment discusses the inadequate, current options these minors have to protect their digital assets, including the compensation they receive from their digital assets. Finally, Part VI of this Comment proposes an additional safeguard of appointing a guardian ad litem for CVMSMIs to ensure the execution is in minors’ best interest and thus specifically calls for a change to Texas legislation. This Comment concludes by proposing a process that will not clog courts or result in unnecessary court costs. Therefore, Texas statutes should create an exception to the testamentary capacity age to allow CVMSMIs to create an estate plan when their digital assets are of commercial value.Item Mitigating the Lack of Wills One Brochure at a Time(Estate Planning and Community Property Law Journal, 2021) Barker, KatelynTo mitigate the issue of individuals not making a will, a prompting system should be added to the driver’s license renewal process, informing people about estate planning—wills in particular—and providing brochures discussing how to create a will and why it is important to do so. Incorporating a prompting system into the driver’s license renewal process will reveal all of the necessary information about a will to those younger individuals, while also teaching or reminding older individuals who are getting their licenses renewed about the importance of wills. The prompt and brochure will actively work together to normalize the execution of estate planning documents and mitigate the prevalent issues surrounding those documents. Part II of this Comment will provide history on estate planning and describe various estate planning documents. It will then go into more detail on specifically what a will is, what statutes govern it, and why it is necessary. Section B will show who is most likely to have a will and the most cited reasons for not having one. Section C will explore what states have attempted to mitigate this issue. The focus of the background will then transition to the organ donation process in Section D. Finally, Part II will conclude with information regarding tax exemptions. Part III will uncover how the estate planning prompt will be implemented, how it will work to mitigate the lack of wills, and why the prompt should mirror that of the organ donation process. Section C will propose counterarguments such as cost, the prompt’s effect on younger individuals, its online format, and whether the issue is prevalent enough to be adopted by the Department of Motor Vehicles (DMV). Following the counterarguments, Section D will explore some practical and policy considerations to contemplate regarding the estate planning prompt and brochure. This Comment will conclude with some final thoughts about the proposed solution and how it will mitigate the lack of wills seen in today’s society.Item Just a Will Won’t Cut It: Planning for the Transfer of Non-Probate Assets at Death(Estate Planning and Community Property Law Journal, 2021) Prangner, Arielle M.This Article is not intended to address every issue associated with the coordination of non-probate assets with the rest of the estate plan. In particular, the nuances of the income tax and distribution considerations involved in the disposition of retirement plans are not addressed. Rather, the goals of this Article are to highlight issues that may influence the suggested disposition of non-probate assets, to assist in the identification of non-probate assets that may not be easily recognizable, and to provide guidance about how to manage some of the paperwork involved.Item First Comes Love, Then Comes Marriage: Cohabitation as a Framework for Conflicts Between Community Property and Common Law Marriage(Estate Planning and Community Property Law Journal, 2021) Cordova, Ana MitchellPart I of this comment will begin to address key concepts in Texas law, including separate property, community property, the homestead, and how marriage is organized. Part II will present a hypothetical fact situation that incorporates these concepts and produces problems related to community property, common law marriage, and property distribution. Part II also discusses consequences that may arise from these problems and the lack of a clear solution for them. Part III takes a deeper dive into community property as a system of property organization, its history, how it works in Texas, and how it impacts property distribution upon death in Texas. Part IV similarly addresses common law marriage in more depth, its history, theories for its adoption, and efforts to abolish it. Part V summarizes the sociopolitical and legal context surrounding how people choose to live together as well as the negative sentiment towards and negative treatment of same-sex couples in Texas. Part VI presents cohabitation in its broader sense as a framework through which to examine formal marriage, common law marriage, and other ways people organize their relationships. Additionally, Part VI analyzes different methods of recognizing relationships and how other jurisdictions grant property rights according to these methods. Part VII considers all the aforementioned concepts and offers a solution to the problems created by the hypothetical, and lastly, the conclusion in Part VIII reviews main points and this Comment’s goals.Item Saving the Little Guy: Estate and Inheritance Taxation on Generational Farmers and Ranchers(Estate Planning and Community Property Law Journal, 2021) Patterson, SarahThis comment will explore the current and future legal issues arising from estate and inheritance taxes on generational farmers and ranchers. Initially this comment will explain how estate and inheritance taxes are calculated and to whom they apply. Additionally, this comment discusses the timeline for estate and inheritance taxes as well as the effect on ranchers and farmers. In particular, several case examples are presented of ranches and farmers losing their property as a result of these taxes. Ultimately, this comment will propose permanent legislation in order for generational farms and ranches to be exempt from paying estate or inheritance taxes. There have been forms of permanent legislation implemented by states to create a tax exemption for generational farmers, ranchers, and other small businesses. The utilization of this method to create legislation at both the federal and state levels would ensure the ability of farmers and ranchers to pass on their property to future generations, thereby ensuring that land used for farming and ranching production of necessary agricultural commodities is not sold off as a result of crippling taxes. Temporary solutions such as legislative exemptions with expiration dates or other means of avoiding estate and inheritance taxes do not solve the problem but actually create uncertainty within the Agriculture community.Item Keeping Up with the Joneses: A Fresh Perspective on Tax-Affecting(Estate Planning and Community Property Law Journal, 2021) Perez, Kelly M.This article examines Estate of Jones v. Commissioner, provides a brief historical context of the opinions that consider tax-affecting in prior Tax Court and Federal Circuit Court opinions, reviews current trends in determining FMV for transfer tax purposes, and offers several key observations, specifically in light of the current economic climate with COVID-19. As this article will discuss, valuation professionals may want to “keep up with the Joneses” by carefully reviewing whether it makes sense to provide similar supporting evidence, as provided in Jones, when appraising a closely-held business with similar characteristics for transfer tax purposes.Item Implications of Termination of Grantor Trust Status(Estate Planning and Community Property Law Journal, 2021) Prangner, Arielle M.This article is not intended to be comprehensive with respect to grantor trusts. There are a multitude of articles and treatises that have been published for that purpose. Instead, it is meant to serve as a resource to highlight issues that require consideration when termination of grantor trust status has occurred, is being contemplated, or is foreseeable, and hopefully can help an estate planner formulate a checklist of items to analyze and discuss with clients in connection with the termination. The article will briefly outline the grantor trust rules, common types of grantor trusts, and termination of grantor trust status. Income tax issues that arise as a result of the termination will then be addressed. In addition to general tax implications, particular assets that may present challenges or require additional planning will be highlighted. Lastly, actions that may be considered before termination of grantor trust status will be presented.Item Extending Abatement to Non-Probate Succession(Estate Planning and Community Property Law Journal, 2021) Siegel, Mark R.Of necessity, the estate planner will have to educate and discuss the abatement issue with the client. The question of who gets assets when there is not enough to go around must be raised. Finding out the client’s wishes as to whether non-probate property beneficiaries are to be called upon to contribute is essential. Far from leaving things to chance, the client’s intent whether to opt out of the default provisions in the context of probate and non-probate transfers should be coordinated and expressed in the governing instruments. Ascertaining whether the client intends to favor beneficiaries of non-probate property should not be overlooked when drafting the estate plan.Item Don’t You Know That Your Law is Toxic? Britney Spears and Abusive Guardianship: A Revisionary Approach to the Uniform Probate Code, California Probate Code, and Texas Estates Code to Ensure Equitable Outcomes(Estate Planning and Community Property Law Journal, 2021) Zammiello, LisaThis Comment examines what laws, if any, are in place to protect wards from abuse. Next, this Comment examines the Uniform Probate Code and varying state laws for procedural safeguards and opportunities to challenge conservatorship, while sharing the stories of people who have suffered under conservatorship. Lastly, this Comment proposes improvements to existing laws and argues the need for supportive services to ensure equitable enforcement of protective laws.Item Dividing the Intangible: An Examination of Community Property in a World of Contingent Revenue(Estate Planning and Community Property Law Journal, 2021) Pedroza, MarianaThis Comment starts with an introduction in Part I. Part II of this Comment follows the history, policies, and principles governing community property systems, and explores how community property states, especially Texas, go about characterizing property at the time of divorce. Although minimally referencing other community property states—in order to highlight how the law varies within each—this Comment will primarily focus on Texas law to encourage the proposed legislation. Part III analyzes the unique features of modern contingent revenue and explains why Texas law must recognize its distinction from traditional contingent revenue. Part IV argues that in order to safeguard and promote human creativity, avoid disproportionate awards, and protect the freedom to divorce, modern contingent revenue must be characterized as separate property at the time of divorce. Part V lays out and explains this Comment’s legislative proposal, which will enact a new presumption that validates modern contingent revenue as separate property, and a reverse burden of proof, making the non-creating spouse bear the burden to prove that such property is part of the community.Item The Dilemma of an Aging Population: Evaluating the Treatment of Insane Testators in the Modern Probate Process(Estate Planning and Community Property Law Journal, 2021) Bender, Ryan F.First, the analysis explores the current state of judicial treatment of insane testators in probate and the potential for admitting extrinsic evidence in will contests to improve the protection of testators and beneficiaries. Second, the analysis transitions to a discussion of the deductibility of conditional donations to nonprofit organizations and possible policy changes to deductibility in the case of restricted gifts. Both of these topics are central to a clearer understanding of the trajectory of estate planning in the next half century in the face of a future landscape that includes rising levels of mental illness and the enormous wealth transfer.Item A Piece of You and I: Posthumous Conception and Its Implications on Texas Estates Law(Estate Planning and Community Property Law Journal, 2021) Mejia, Alexis C.This Comment will discuss whether children conceived posthumously are considered beneficiaries of a deceased parent’s estate under the current Texas Estates Code. Part II provides a background of assisted reproductive technology, cryopreservation, and posthumous conception. Additionally, several cases are analyzed, including the Supreme Court case, Astrue v. Capato, regarding posthumously conceived children and if they are considered beneficiaries under the Social Security Act. Furthermore, this Comment examines the rules Texas follows today and identify sources that Texas can look to for guidance regarding posthumous conception. Lastly, Part III proposes an amendment to Texas Estates Code Section 201.056 addressing why such change is imperative and why the amendment must be adopted.Item Whose Life is it Anyway: An Analysis and Proposal for the Texas Property Code When Everyone Acts Like a Celebrity and Everything is and Advertisement(Estate Planning and Community Property Law Journal, 2020) Lewis, BarrettThere are a variety of justifications for protecting individual rights to privacy and publicity. This comment focuses on those justifications—incentive, economic, natural right to one’s identity, et cetera—with regard to estate planning. It also discusses and analyzes Texas’s position in the nation as a leader in legislation and how to tailor the state’s laws to modern developments in society. As a state that works to protect property for the sake of individuals and communities, this comment proposes that Texas adopt new statutes affording living persons the same protections deceased persons have regarding persona and likeness. First, this comment discusses the source of Texas publicity statutes and illustrates how these statutes function through discussions of major cases. It then explores the state of publicity in other community property states, and various rationales for protecting persona. This comment also explores how emerging technologies have invented new types of fame and different ways to exploit that fame. Additionally, this comment lays out which measures the Texas legislature should consider adopting in order to be a frontrunner in the redevelopment of privacy and publicity laws in a world of social media and hyperactive consumer behavior. Finally, this comment examines the rationales for statutorily protecting a living individual’s persona and the reasons why every community property state should consider it as well.Item Uniform Partition of Heirs’ Property Act: Partition with an Acetate Overlay(Estate Planning and Community Property Law Journal, 2020) Rainey, R. ShaunPart I provides a brief introduction to the topic and Part II of this article explores in greater detail the reasoning behind the creation of the UPHPA, including the historical context, and outlines briefly the solutions provided in the UPHPA per the Uniform Law Commission. Part III provides the history of the UPHPA’s creation and enactment since its approval by the Uniform Law Commission. Specific information relating to the Texas enactment of the UPHPA and the present status of Texas jurisprudence is also included. Part IV discusses in detail the operation of the UPHPA in a judicial partition suit. While this does include a procedural analysis of the implementation of the UPHPA, it is beyond the scope of this article to include the many nuances which apply in both the standard partition suit and a partition suit to which the UPHPA applies. Citations herein include works by other Texas attorneys with greater detail and analysis on these matters. Part V outlines steps that an estate planning attorney can take in preparation of a client’s last wishes in order to avoid application of the UPHPA (and standard partition suits) through the use of techniques contemplated by the Uniform Law Commission. Additionally, options related to the administration of an estate to minimize issues of common ownership which often lead to partition suits are also discussed.Item The Porridge of Disclosure to Beneficiaries Too Hot, Too Cold, or Just Right(Estate Planning and Community Property Law Journal, 2020) McCulloch, W. Cameron, Jr.; Smith, Laurel M.The purpose of this paper is three-fold. First, the authors wish to provide the reader with a summary of all sources of Texas law which define and discuss a fiduciary’s duty to make a full and accurate disclosure. Secondly, the authors will attempt to provide practical suggestions for both the fiduciary and the (disgruntled) beneficiary to consider from the standpoint of prosecuting and defending allegations of this sort. Third, the authors will suggest how much disclosure by a fiduciary is enough, subject to the understanding that the authors’ opinion could be affected by facts of specific cases which are unknown to the authors.