Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, October 9, 2015

Children Of Spain’s ‘Red Duchess’ Involved In Inheritance Dispute

Red duchess sonThe three children of Spain’s ‘Red Duchess’ Luisa Isabel Alvarez de Toledo, known for her opposition to the Franco regime, are in an inheritance dispute with the decedent’s same-sex partner that she married in 2008 just hours before her death.  The legal dispute centers around the palace in Sanlucar de Barrameda near the southern Spanish city of Cadiz.  De Toledo was the Duchess of Medina Sidonia and her widow can live in the estate’s palace until her death according to the terms of the decedents will.  The children allege that their mother went too far with her Will.  Under Spanish civil code the children have the right to 2/3rds of the parent’s property unless they have been disinherited.  There will likely be further updates as this story develops.

See Children of Spain’s ‘Red Duchess’ take inheritance fight to court, eNews Channel Africa, October 9, 2015.

October 9, 2015 in Current Affairs, Estate Planning - Generally, Wills | Permalink | Comments (0)

Court Rules That Attorney’s $14 Million Inheritance Is Not Invalid

WillA Court has recently held that an attorney violated ethical rules when he drafted a Will for a wealthy client bequeathing $14 million for himself and his children, but that his actions did not invalidate the Will itself.  The split decision by the Michigan Court of Appeals overturned a lower court ruling that invalidated the Will.  The Court held that the onus is now on the attorney to prove that he did not exert undue influence on his wealthy friend and client. 

The Michigan Rules of Professional Conduct prohibit attorneys from drafting Wills for non-related clients that include substantial gifts for the drafting attorney.  If the Will would have been invalidated then the estate would have gone to the decedent’s brother and children via Michigan’s intestacy laws.  The Michigan Appeals Court decision can be read here.   

See Paul Egan, Court: Lawyer’s $14M inheritance unethical, not invalid, Detroit Free Press, October 9, 2015.  

October 9, 2015 in Current Affairs, Estate Planning - Generally, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Medicare’s Rising Drug Plan Costs Is Bad News For Senior Citizens

Prescription drugsSenior Citizens have recently gotten unwelcome news that premiums for Medicare prescription drug insurance plans will increase by double-digits rates next year.  According to consulting and research firm Avalere Health the premiums for popular Medicare Part D prescription drug plans (PDPs) will rise by an average of eight percent and five of the top plans will increase their premiums from 16 to 26 percent.  One of the causes of the premium increases is the rising cost of specialty drugs.  Fewer big blockbuster drugs are going generic and there is an increase in the amount of specialty drugs being approved by the FDA.  There have also been recent increases in the prices of some older drugs. 

See Mark Miller, Unwelcome news about Medicare’s rising drug plan costs, Reuters, October 8, 2015.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention. 

October 9, 2015 in Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Heirs Of Santa Clause Song Composer Win Court Case

Santa clausA recent decision by the 2nd U.S. Court of Appeals has held that a share in the copyright of the song “Santa Claus is Comin’ to Town” will be re-established for the heirs of the song’s composer.  In this case the daughter and granddaughter of John Frederick Coots sued EMI Feist Catalog Inc. in Manhattan federal court claiming that they are entitled to re-establishing their share of copyright ownership.  The court rejected EMI Feist’s claim that it could hold its copyright until 2029.  The family is hoping to be able to receive a songwriter’s royalty cut from its share of the copyright. 

See Larry Neumeister, Appeals Court Rules For Heirs Of Santa Claus Song Composer, Associated Press, October 8, 2015.

October 9, 2015 in Current Affairs, Estate Planning - Generally, Music | Permalink | Comments (0)

New Book On Estate Planning For Same-Sex Couples

ArticleThe third edition of Estate Planning for Same-Sex Couples has recently been published by Joan M Burda, and available through ABA Book Publishing. Provided below is a description of the book:

Estate planning is more than deciding how an estate will be divided post-mortem.  Sure that is a part of it, but the other part is….life planning. The key is honing in on the best way to protect your clients' interests during their lifetime.

When the ABA released the second edition of this book in 2012, a mere six jurisdictions recognized marriage equality.  What a difference a day makes…this third edition follows hard on the heels of the U.S. Supreme Court’s decision in Obergefell v. Hodges.  The court decided that “marriage is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty.”  What seemed an impossible pipe dream at the turn of the century is now a reality. From now on there is no “same-sex marriage” or “opposite-sex marriage”; there is only marriage. Marriage is just part of the equation.  It is the beginning not the end of the legal struggle as the LGBT community seeks full rights under the law.  LGBT people still face discrimination in other areas.  This new edition of Estate Planning for Same-Sex Couples by award-winning author Joan M. Burda attempts to address certain struggles for equality and how these issues affect estate planning for LGBT clients. For example, not all same-sex couples get married.  These blended families will continue to present challenges that must be addressed.  Preparing an estate plan for LGBT clients requires a creative and comprehensive approach.  The issues these clients present are unique and involve considerations not usually seen with heterosexual clients.

Family law is becoming an integral part of every estate planner’s practice.  As the field evolves there seem to be more questions than answers.  For example elderly LGBT clients face significant problems that are exclusive to that community and have often been overlooked. This book will help lawyers better represent their clients as they address the present as well as future needs of their clientele.

October 9, 2015 in Books, Books - For Practitioners, Estate Planning - Generally | Permalink | Comments (0)

Article On Property and Secrecy

ArticlePictureAmnon Lehavi  (Interdisciplinary Center Herzliyah - Radzyner School of Law) recently published an article entitled, Property and Secrecy. Provided below is an abstract of the article:

Real estate ownership is conventionally viewed as a clear matter of public record. Yet purchasers of real estate are increasingly employing legal techniques to preserve their anonymity by registering their properties through trustees or opaque shell companies. This turn of events calls for delineating the appropriate boundaries of secrecy in property.

The Article identifies primary contexts in which the issue of secrecy comes up in the law, including in financial and proprietary settings, such as secret trusts or undisclosed accumulation of shares in public corporations. It then underscores the unique features of secrecy in real estate. It offers an innovative analysis of the ways in which anonymous property holdings might generate externalities for various types of stakeholders, from central and local governments up to neighboring property owners in both their individual and collective capacities, such as in a homeowner association. The analysis establishes normative criteria for requiring property owners to disclose relevant details. It calls, however, to distinguish between a duty to provide information and the operative results of such disclosure in regard to interested parties’ capacity to act on such information.

This Article argues that, somewhat counter-intuitively, an elaborate discussion of the proper limits to the interest in secrecy would challenge prevailing forms of exclusion and other types of defensive or offensive tactics against “unwelcomed neighbors,” whenever such practices have no normative merit. The discourse on secret real estate holdings would therefore shed broader light on the underlying societal features of ownership.

October 9, 2015 in Articles, Trusts | Permalink | Comments (0)

Alabama Probate Court Judge Want Feds To Issue Same Sex Marriage Licenses

ArticleAn Alabama probate judge is in no way inclined to follow his brother judge in Texas when it comes to compliance with the recent same sex marriage ruling by the US Supreme Court. Instead, he is arguing that the federal government should issue the licenses so that he, and other like minded officials, can avoid the performance of their duties under the auspices of fairness. Opponents have hit back at the suggestion stating that there exist no precedent for refusing to abide by a SCOTUS ruling and instances where it has been attempted in the past have accomplished nothing.  The judge is currently asking the Alabama Supreme Court to step in and recognize marriages by the federal government or other states but not force officials to issue a license at all. As of now, no action has been taken by the Alabama Supreme Court on the judge's suggestions.

See Kent Faulk, Alabama probate judge: Let federal government issue same-sex marriage licenses, AL.com, October 6, 2015.

 Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

October 9, 2015 | Permalink | Comments (0)

How Yogi Berra Could Have Made Millions Of His Image

ArticlePictureYogi Berra made as much of a name for himself due to his immensely quotable sayings as his hall of fame baseball career. However, he never went to great lengths to cash in on his persona settling for a handful of ghostwritten books and whatever product endorsements he could pickup. As a result, he died with an estate that, while substantial, did not place him into the stratosphere of wealth that many of today's elite athletes possess. This fact occurred in no small part because Berra had little interest in amassing a fortune, instead preferring a simpler life that afforded luxury but did not offer the chance for $10 million yachts or other prestige items the wealthy use to remind the world they have money and insecurity. That is what makes the Berra story so refreshing, he was a man who excelled in many aspects of his life but never let his primary goal be to make money for the sake money.

See Scott Martin, Yogi Berra Never Cashed In: Constantly Quoted Career Had Estate Planning Dark Side, The Trust Advisor, September 27, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

October 9, 2015 in Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 8, 2015

How Clients Should Approach Medicaid Planning

MedicaidThis column discusses a unique area of the law that is known as “Medicaid planning.”  This type of planning requires clients to look for ways to maximize means-tested Medicaid benefits.  One of the most common ways to maximize Medicaid benefits is through “income reduction” techniques that often involve creating a Qualified Income Trust (QIT).  These QITs are often referred to by many in the legal community as “Miller Trusts” after a court case that authorized this technique.  There are also various special needs trusts that clients can set up to save assets without breaching the income requirements needed to maintain Medicaid eligibility.  In order to take advantage of these financial planning techniques it is a good idea to consult with a professional estate planning attorney. 

See Kyle Krull, What Do My Clients Need to Know About Medicaid Planning (for Starters, Anyway)?, Wealth Management, October 7, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

October 8, 2015 in Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, Income Tax, Trusts | Permalink | Comments (0)

Steps Clients Should Take Before Retirement

4 things retirementThe decisions that a person makes in the critical years leading up to retirement can have a tremendous impact on the level of comfort that person enjoys in retirement.  This column discusses some of the biggest financial-planning issues that clients will face when preparing for retirement.  Clients need to understand the difference between revocable and irrevocable choices.  They will need to consider which assets they want to spend and when they would want to spend them. 

It is very important to think about ways of diversifying investments to gain tax benefits.  Clients need to be aware of how their benefits will affect the heirs and beneficiaries that will inherit them.  It is a good idea to speak with an estate planning professional to come up with an individualized retirement plan that fits with the clients unique circumstances.

See Jane Hodges, The 4 Things to Do Before Retirement, The Wall Street Journal, October 4, 2015.

Special thanks to Jim Hillhouse for bringing this article to my attention.

October 8, 2015 in Elder Law, Estate Planning - Generally, Income Tax, Trusts, Wills | Permalink | Comments (0)