D

In feudal times, a direct tax levied throughout England.

See decentralized apps.

An acronym that stands for domestic asset protection trust. • In some states, a DAPT can be structured so the grantor is a beneficiary. See self-settled trust.

“[A] strategy that allows the owner of an estate to control beneficiaries and property even after death.” Susan R. Lipp, Note From the Editor, Trusts & Estates Magazine, May 2024.

A formal discussion of perspectives over which there is disagreement.

Existing in fact; having effect even though not legally recognized. C.f. de jure.

Existing according to law. C.f. de facto.

The proceeds of a life insurance policy that are paid out tax-free to designated beneficiaries (or to the policy owner’s estate).

“Under the 100-year-old law, damages are limited to the support a person killed would have provided to his or her survivors. Under Dohsa, the plaintiff must prove that either negligence or poor judgment of a vessel’s owner caused the death of their loved one, or that the vessel was not seaworthy.” Joel Rosenblatt & Teresa Xie, Doomed Submersible’s Waivers Aren’t Enough To Ward Off Lawsuits, Financial Advisor, June 23, 2023.

A feature in a certificate of deposit that allows a decedent’s estate to redeem the CD at face value in the event the holder of the CD dies before the CD’s maturity date. • See Hani Sarji, What is a Death-Put Feature of a Certificate of Deposit?, Wills, Trusts, Estates, April 3, 2022.

(1) A term that applies either to an estate tax or an inheritance tax. • This use of the term is politically neutral.

(2) The pejorative label for the “estate tax” given by its opponents.

When statutory requirements are met, a way for a trustee to modify an otherwise irrevocable trust by transferring assets to a new trust. See NY EPTL 10-6.6. • Generally, decanting involves examining the language of an existing trust, creating a new trust with more desirable language, and moving the assets of the existing trust to the new trust.

An individual who has died.

Software that allows users to access decentralized finance platforms. • Decentralized apps are popularly called “dapps.”

Paul Vigna, DeFi Is Helping to Fuel the Crypto Market Boom–and Its Recent Volatility, WSJ, June 3, 2021 (Apple News link):

Short for decentralized finance, DeFi is an umbrella term for financial services offered on public blockchains. Like traditional banks, DeFi applications allow users to borrow, lend, earn interest, and trade assets and derivatives, among other things. The collection of services is often used by people seeking to borrow against their crypto holdings to place even larger bets.

There are two key differences from mainstream banks: All services are for digital currencies instead of government-issued ones such as the dollar and the euro, and there is no intermediary or centralized system through which transactions are processed.

. . .

DeFi is still an immature and highly risky market. In some cases, those running the apps are anonymous, making it harder for users to determine which platforms are reliable. The services aren’t regulated or insured, so if a platform fails there is no recourse.

Another risk is security. . . .

A type of relief that declares the rights, duties, or legal status of the parties without ordering any action or awarding any damages.

The phase in life when someone retires and must live off of their retirement savings without running out of money. • See Stephen Chen, Why Retirement Decumulation Is The New Accumulation, Forbes, Sept. 30, 2019 (“It’s much more complex than the accumulation of assets.”).

A document that conveys title to real property.

A rule that applies when a legal instrument is silent. Also called “off-the-rack rule” or “off-the-shelf rule.”

For example, NY EPTL 11-1.1(b) provides default rules for fiduciary powers:

In the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in a subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized . . .

See intentionally defective grantor trust.

See appellee.

See decentralized finance.

Part of a manor either kept by a lord in his own hands or farmed for his own profit.

In medieval England, after the Norman conquest, the principle that except for the king, every person holds land under some lord. • See tenure.

“[T]he portion of rate changes that banks pass on to depositors.” Jon Sindreu, Banks Can’t Shortchange Savers Forever, WSJ, July 13, 2023 (Apple News link).

“A derivative suit is instituted by the owner of the business to prosecute a claim on behalf of the company. This frequently applies when those charged with availing the business of court rem- edies are the alleged wrongdoers. A derivative claim belongs to the business and not the owner . . . . To determine whether a cause of action is personal (to the trust) or derivative, “the pertinent inquiry…‘is whether the thrust of the plaintiff’s action is to vindicate his [or her] personal rights as an individual and not as a stockholder on behalf of the corporation.’” Bibbo v. Arvanitakis, 145 A.D.3d 657 [2d Dept 2016]. The ultimate question, therefore, is where does the recovery go?” Michael Calcagni & Michael J. Borger, Standing of Trust Beneficiaries in Derivative Actions, NYLJ, Sept. 10, 2023. • Derivative claims include (1) diminution in the value of shares, (2) waste and mismanagement by the board of directors, (3) damage to a corporation’s reputation and associated goodwill due to chairman misconduct, and (4) diversion of corporate opportunities.

See derivative claim.

A type of employee retirement contribution where a portion of an employee’s salary is withheld after-tax and transferred into an employer-sponsored retirement plan — 401(k), 403(b), or governmental 457(b) plans. • Unlike pre-tax elective contributions, designated Roth contributions are currently includible in gross income but tax-free when distributed. If a plan permits designated Roth contributions, it must also offer pre-tax elective deferral contributions. • C.f. elective deferral contribution.

The right to transfer property at death by a will.

Traditionally, the transfer of any property at death by a written document called a “will.” Today, the term is limited to transfers of real property by will. • NY SCPA § 103(12) defines the word devise when used as a noun as “a transfer of real property by will,” and it defines devise when used as a verb (i.e., “to devise”) as “to transfer real property by will.” • Adding the word “devise” to a disposition can indicate that the testator intended to have title to real property pass to the beneficiaries instead of having the executor sell the property and distribute the proceeds: “It is observable that the language of the testator is very carefully employed to rebut the theory of [an equitable] conversion. In each of five articles, when giving income merely, he uses the phrase ‘I give and bequeath,’ appropriate to a mere gift of personal property, but when he creates the remainders, the language changes uniformly and in every instance and becomes ‘I give, devise and bequeath.’ The change of phraseology seems not to be accidental, but intentional, and to indicate the testator’s expectation that land, as such, would pass in the remainders, and their gift require the added word ‘devise.’” Scholle v. Scholle, 21 N.E. 84 (N.Y. Ct. Appeals 1889).

A person who receives real property under a will. • See NY EPTL 13-4.1(b); NY SCPA § 103(13). C.f. legatee.

“[S]tatements that are not part of the court’s holding. Common signs that statements are dicta include words or phrases such as if, for example, suppose, or other language indicating that statements are analogies, generalizations, hypotheses, illustrations, or mere passing observations. In such statements a judge may, for any number of reasons, expound on irrelevant or nonexistent facts or a theory of law that was not applied. Dicta have no authority, so don’t rely on them. But they may offer insight into how the court might rule given a different set of circumstances.” Bryan Garner, The Redbook: A Manual on Legal Style, 3d 371.

“A digital asset account or wallet generally provides its owner or custodian with the ability to store the public and private keys to digital asset holdings. These keys are required to conduct transactions with the digital assets associated with those keys and thus to control the ability to transfer those digital assets. . . . Some wallets may provide additional or different capabilities beyond storing keys. Wallets can be digital (software) or physical (hardware) and can be connected to the Internet (hot) or disconnected from the Internet (cold). Wallets can be custodial (hosted) or non-custodial (unhosted).” Gross Proceeds and Basis Reporting by Brokers and Determination of Amount Realized and Basis for Digital Asset Transactions, Proposed Rule by the IRS, Aug. 2023. See hosted wallet and unhosted wallet.

“Digital assets are digital representations of value that use cryptography to secure transactions that are digitally recorded using distributed ledger technology on a distributed ledger, such as a blockchain or similar technology. Digital assets do not exist in physical form. Depending on the particular digital asset, individual units of a digital asset may be referred to as coins or tokens. Some digital assets are referred to as virtual currency or as cryptocurrency.” Gross Proceeds and Basis Reporting by Brokers and Determination of Amount Realized and Basis for Digital Asset Transactions, Proposed Rule by the IRS, Aug. 2023.

A ruling made by a trial judge who concludes that there is no evidence for the jury to reach a different conclusion. • “A civil jury had heard about a week of testimony . . . .‘No one is a bigger believer in juries than me,’ [the judge] said. ‘It was a difficult decision.’ But he said the plaintiff had simply failed to prove his case and there was no need to send it to the jury.” Scott Sandlin, Relative loses lawsuit against Abruzzos - Widower had filed financial claims, Albuquerque Journal, July 9, 2015.

Allows non-trustees (such as advisors, committees, or protectors) to direct trustees regarding such matters as investments and distributions. • As of 2023, New York does not have a directed trust statute, but a statute was proposed. • “A directed trust may be a useful vehicle for digital assets, depending on the trust’s legal home state. A directed trust is a trust where someone other than the trustee is responsible for investment decisions. The laws regarding directed trusts vary among states. In some states the laws delineate the duties of an advisor versus those of a trustee. Additionally, some state laws obligate the trustee to oversee the advisor, thus leaving the trustee liable for losses. Other states define the advisor’s role as independent, theoretically shielding the trustee from liability.” Wendy Hoey Sheinberg & Stella Lellos, Accounting for Digitgal Assets in Your Estate Plan, Rivkin Radler LLP, March 29, 2023.

To reject a gift or a share in or payment of an estate. • New York uses the term “renunciation” instead of disclaimer.  • A disclaimer is neither an assignment nor a release. In a disclaimer, the donee refuses something. In an assignment or release, the donee accepts something before transferring it.

“[A] fiduciary role in which an adviser manages investments without calling the client for permission before each transaction.” Alisa Wolfson, Fiduciary vs. financial adviser: What’s the difference?, MarketWatch, June 26, 2023. C.f. [non-discretionary fiduciary investment adviser](#non-discretionary fiduciary investment adviser).

A power of appointment that permits the donee to exercise or not exercise it. NY EPTL 10-3.4(c).

Trust in which income, as well as principal, is distributable to beneficiaries during the term of the trust not as a matter of right but solely in the discretion of the trustee.

NY EPTL 1-2.4 defines a disposition as “a transfer of property by a person during his lifetime or by will. Under this definition, property received from an intestate decedent is not received through a disposition because it is received neither through a lifetime transfer nor by will. Also, a court held that a surviving spouse’s withdrawal from a bank account that was owned jointly with the decedent spouse is not an abatement of estate assets because it is not a disposition–the transfer was made by the surviving spouse, not the decedent. Mason v Mason, 657 N.Y.S.2d 214 (App. Div. 3d Dep’t 1997).

Someone who takes through the laws of intestacy. See EPTL 13-4.1(c); NY SCPA § 103(14).

A survey of England that William the Conqueror ordered in 1086. It is England’s earliest surviving public record. • “One explanation for the name of the book is that the records were deemed by the populace to be as conclusive as the day of judgment.” Cornelius J. Moynihan & Sheldon F. Kurtz, Introduction to the Law of Real Property 31 n.13 (7th ed. 2020). • “The primary purpose of the survey was fiscal in nature. William desired precise, up-to-date information as to contributions made by each estate to the Danegeld, a direct tax levied throughout the country. Additionally, he sought an accurate and complete picture of the redistribution of English lands that had taken place in the 20 years since the Norman invasion.” Id. at 6. • You can search the Domesday Book at https://www.nationalarchives.gov.uk/domesday/

(1) Respecting powers of appointment: “the person who creates or reserves a power.” EPTL 10-2.2(a).

(2) Respecting trusts: See settlor.

A charitable giving account that allows the donor to recommend grants from the account to charitable organizations. • “You typically open a DAF with a community foundation or through the charitable arm of a brokerage firm, such as Vanguard or Schwab, and there’s often no minimum deposit.” Ryan Ermey, Warren Buffett shares details of his will—2 key lessons you can learn, ‘whatever your wealth level’, CNBC, Aug. 16, 2024 (Apple News link). • A DAF is useful for taxpayers with appreciated investments because it allows donors to deduct the fair market value of contributions of the appreciated assets to the DAF, and the taxpayer does not have pay capital gains tax on the appreciated assets.

“Double spaced text has a blank line between successive lines of type. The space between lines is called leading and is measured in points from the bottom of one line of text to the bottom of the next. Double spaced text should have leading of at least the height of the type. Thus double spaced 14-point type must have at least 14 points of leading, for a total line spacing of 28 points. An attorney or litigant may rely on the line spacing setting of the word processing program used to create the brief.” Supreme Court of the State of New York, Appellate Division: Second Judicial Department, A Glossary of Terms for Formatting Computer-Generated Briefs, with Examples.

At an electrical panel: When two wires are connected to the same circuit breaker. Double tapping is not a good practice. It potentially causes overcurrent at the breaker and may overwhelm the electrical panel.

Monetary policy: Refers to an approach that is generally more supportive of lower interest rates and a looser monetary stance with the aim of stimulating economic growth. • Example: “Economists say a slower pace of runoff in the Fed’s bond portfolio could be dovish, as it takes a little pressure off long-term rates.” Alice Uribe, Perpetual Sells Bonds, Cuts Cash as Fed Slows Pace of Quantitative Tightening, WSJ, June 20, 2024 (Apple News link). • C.f. hawkish.

“[T]he art of expressing in a will the known desires of the testator.” Jule E. Stocker, Jonathan J. Rikoon, Pamela R. Champine, & Janine Racanelli, Practising Law Institute: Stocker and Rikoon on Drawing Wills and Trusts (2011) (explaining, “We occasionally use less current terms for their nuances: ‘draftsmanship’ connotes more art than ‘drafting’ even though it includes a reference to the time when all drafters were draftsmen.”).

“[T]he term ‘due-on-sale clause’ means a contract provision which authorizes a lender, at its option, to declare due and payable sums secured by the lender’s security instrument if all or any part of the property, or an interest therein, securing the real property loan is sold or transferred without the lender’s prior written consent.” 12 U.S.C. § 1701j-3(a)(1).

A power of attorney that remains in effect even when the principal becomes incapacitated. •

In a will contest: “[S]omeone claims you only made the will because you were under extreme pressure by someone or something to divide your property in a way that goes against your wishes.” Will Contests, New York City Bar Legal Referral Service.

In trusts: “The loyalty norm forbids the trustee from self-dealing with trust assets and from engaging in conflict-of-interest transactions adverse to the trust.” John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625 (1995).

A trustee’s duty to fairly balance the interests of two or more beneficiaries when investing, managing, and distributing the trust property. • The duty of impartiality arises when a trust has two or more beneficiaries, whether their interests are simultaneous or successive (i.e., income beneficiaries and remainder beneficiaries). Restatement (Second) of Trusts § 183 comment a (1959). • “The hallmark of the duty of impartiality is balance: The trustee must strike a fair balance between the beneficiaries, giving due regard to their respective interests.” Jesse Dukeminier et. al., Wills, Trusts, and Estates 821 (7th ed. 2005).

In trusts: “The duty of prudent administration is a reasonableness norm, comparable to the reasonable person rule of tort.” John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625 (1995).

NY MDL § 4(4)) defines a “dwelling” as “any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings.” • See multiple dwelling.

A trust that remains in place for multiple generations.