Wills, Trusts & Estates Prof Blog

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

Wednesday, February 22, 2017

Article on Hindu Succession Act 2005

Hindu succession lawShital Prakash Kharat recently published an Article entitled, Effect of Hindu Succession (Amendment) Act 2005 – Judicial Response (2017). Provided below is an abstract of the Article:

Women, since the vedic times were dominated because of the she is women. She can only live life under her husband, father, sons etc. but after certain changes in law women get various rights & privileges for living with dignity under Article 21 of the Indian Constitution. In ancient time women does not having any kind of share or ownership in fathers property because the domination of male in succession e.g. male is the head of the joint family & therefore he holds the rights to ancestral property. Hindu Succession Act 1956 originally did not gave inheritance rights in ancestral property but ask for a right to sustained/maintain from Hindu Joint family. Most effect was done in status of women in his father’s property after the Hindu Succession Act 2005 this amendment try to maintain Article 14, 15, & 21 of the constitution of India. There are certain provisions of Hindu Succession Act 1956 amended by Hindu Succession Act 2005 after this amendment various issues raised regarding interest of women in ancestral property and whether this amendment Act having a Prospective effect or Retrospective effect upon this issue Judiciary Court gave excellent interpretation or explanation for prospective effect.

 

February 22, 2017 in Articles, Estate Planning - Generally, Religion | Permalink | Comments (0)

How Cannabis Is Helping America's Elders

Elder marijuanaA New York City nursing home is taking unusual steps to help residents use medical marijuana as an alternative to prescription drugs. The Hebrew Home at Riverdale will allow residents to buy marijuana from a dispensary, keep the products in locked boxes in their rooms, and administer it on their own. Elderly Americans are increasingly turning to marijuana as an alternative, one with fewer side effects, for aches and pains. Additionally, in the State of Washington, as a response to demands from residents, at least twelve assisted living facilities maintain formal medical marijuana policies. However, several nursing homes and assisted living facilities are concerned about the penalties that could result from allowing residents to indulge in such practices. As research continues to progress the idea, one thing is for sure: America’s elders are increasingly exploring alternatives for fighting pain.  

See Winnie Hu, When Retirement Comes with a Daily Dose of Cannabis, N.Y. Times, February 19, 2017. 

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

 

February 22, 2017 in Current Events, Disability Planning - Health Care, Elder Law | Permalink | Comments (0)

Tuesday, February 21, 2017

Article on Probate Lending

Probate lendingDavid Horton & Andrea Cann Chandrasekher recently published an Article entitled, Probate Lending, 126 Yale L.J. 102 (2016). Provided below is an abstract of the Article:

One of the most controversial trends in American civil justice is litigation lending: corporations paying plaintiffs a lump sum in return for a stake in a pending lawsuit. Although causes of action were once inalienable, many jurisdictions have abandoned this bright-line prohibition, opening the door for businesses to invest in other parties' claims. Some courts, lawmakers, and scholars applaud litigation lenders for helping wronged individuals obtain relief, but others accuse them of exploiting low-income plaintiffs and increasing court congestion.

This Article reveals that a similar phenomenon has quietly emerged in the probate system. Recently, companies have started to make “probate loans”: advancing funds to heirs or beneficiaries to be repaid from their interest in a court-supervised estate. The Article sheds light on this shadowy practice by analyzing 594 probate administrations from a major California county. It finds that probate lending is a lucrative business. It also concludes that some of the strongest rationales for banning the sale of causes of action--concerns about abusive transactions and the corrosive effect of outsiders on the judicial processes--apply to transfers of inheritance rights. The Article thus suggests several ways to regulate this nascent industry.

 

February 21, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Over 100 Headstones Damaged at Jewish Cemetery

Jewish cemeteryThe University City Police Department is currently leading an investigation to determine who has damaged several headstones at a local Jewish cemetery. Over 100 headstones were damaged at the Chesed Shel Emeth Cemetery in St. Louis. Police think that the vandalism was not the act of one individual, as they review security camera footage from the area. These acts come at a time when bomb threats are heightened at Jewish community centers across the country. 

See Dozens of Headstones Damaged at Jewish Cemetery Near St. Louis, Fox News, February 20, 2017. 

 

February 21, 2017 in Current Events, Death Event Planning, Religion | Permalink | Comments (0)

Article on Consideration for Inter Vivos & Testamentary Gift Transfers

Gift considerationAlex M. Johnson, Jr. published an Article entitled, Contracts and the Requirement of Consideration: Positing a Unified Normative Theory of Contracts, Inter Vivos and Testamentary Gift Transfers, 91 N.D. L. Rev. 547 (2015). Provided below is an abstract of the Article:

This Article addresses a subject that has mystified generations of Contracts students: the normative basis for “consideration.” Instead of attempting to define consideration, which can be largely tautological, the focus is on the normative basis for its use in deciding which contracts are enforceable. After examining the four major normative theories that have been put forth to date to explain the requirement of consideration: functional, realist, moral, and efficiency, the Article conclude that functional is the best normative theory mandating the use of consideration in enforceable contracts.

The Article compares enforceable contracts in which consideration is found with transactions in other legal areas, that is, valid inter vivos gifts and Wills (Property and Trusts and Estates), to determine what requirements are necessary to validate those transfers. With respect to both of these latter transfers, functional formalities are required that satisfy evidentiary, channeling, ritualistic, and protective functions--the same functions that are satisfied by the consideration doctrine in Contracts.

The Article then details why these formalities are so important and cut across these transactions in different areas of the law. By expanding the analysis to the adjudication phase of the legal process, the critical role these functions play ex post allows the court or other arbiter to make a determination regarding the enforceability of a transaction with low administrative costs and with little attendant error costs. In two of the three transactions, inter vivos gifts and testamentary (Will) transfers, inevitably one of the parties (the putative donor) to the transaction is deceased. In the third, arms-length contracts, the two parties to the putative contract have two different stories regarding the formation of that contract which, in the absence of the functional formalities, would be indeterminate. The functional formalities thus provide the arbiter with reliable and crucial information ex post to guide the decision-maker's resolution of the question of enforceability.

Finally, the outlier transaction that has bedeviled Contract scholars for generations and which requires no consideration--promises enforced as a result of the use of the doctrine of promissory estoppel--is addressed and analyzed. It is theorized that these cases actually represent three different types of transactions--failed gift cases, promissory fraud cases, and pre-contractual promise cases (based on fact patterns similar to those employing the doctrine of culpa en contrahendo in Civil Law countries). Disaggregating these cases, it is demonstrated that only the latter, pre-contractual promise cases, are true contract cases calling for the imposition of the same normative basis as contract cases supported by consideration. Hence, the article concludes by demonstrating that the contract cases that are enforceable per the doctrine of estoppel or reliance supply the courts with the same functional formalities as consideration-based agreements. These enforceable reliance cases provide the courts with an efficient and effective way to make an adjudication with low error costs.

 

 

February 21, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

New Jersey Amends Legislation to Discharge Loans for Deceased Students

Discharge student loanNew Jersey recently amended legislation for their college loan program, no longer obligating a parent or guardian cosigner to repay the loan of a student borrower who has passed away. Testimony from grieving parents prompted the New Jersey legislators to modify student loan requirements. New Jersey’s student loan program was one of the strictest in the nation, coming under a substantial amount of criticism. The federal government and approximately one-third of private lenders also discharge student loans after the student has passed.  

See Jerilyn Klein Bier, N.J. Is Discharging Loans for Families of Deceased Students, Financial Advisor, February 21, 2017. 

 

February 21, 2017 in Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, February 20, 2017

Article on Helping Clients Plan Their Funeral Arrangements

Funeral arrangementAmy F. Altman recently published an Article entitled, Preventing Morbid Litigation: Ask Clients About Their Funeral Arrangements, Tr. & Est. 16 (Feb. 2017). Provided below is an abstract of the Article:

As estate planners, we’re accustomed to asking our clients for personal information, such as their finances and family dynamics, to obtain a good grasp of their estate-planning goals. Without such questions and forthright answers, a planner would be at a loss in terms of how to appropriately plan for their clients. The result of this dialogue is the foundation of any well thought-out estate plan. One of a planner’s ultimate objectives is to create a plan that works under any set of circumstances, from natural disaster to unborn children. However, how often are we as planners asking our clients about their funeral arrangements? Practitioners should always ask clients a simple series of questions, such as: (1) who they want to be in charge of their final disposition, (2) whether they prefer burial over cremation, and (3) where they wish to be buried or interred. Practitioners may be reluctant to ask such questions possibly because the questions raise the issue of the client’s mortality. The same may be said about the client’s willingness to answer. 

 

February 20, 2017 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

The Michael Jackson Estate Tax Case

JacksonThe executors of Michael Jackson’s estate filed an estate tax return with a value of $7 million, but the IRS issued a deficiency that reported a value of $1.32 billion, further demanding additional estate taxes of $505.1 million coupled with $196.9 million in penalties and interest. As is the problem for many celebrities, valuing Jackson’s name and likeness after his death proved controversial—his estate valued this asset at $2,105 due to his tainted reputation, while the IRS pegged the value at $434 million, as the singer was rehearsing for his comeback tour when he passed. The valuation of a celebrity’s name and likeness at death is not supposed to consider post-death events, but these can inevitably inform a court’s judgment. The Jackson estate did an excellent job of exploiting the late singer’s name and likeness after his death. As the case proceeds, all eyes will certainly be on Jackson’s name and likeness.  

See Michael Jackson Estate Tax Case Moving Forward, Rubin on Tax, February 19, 2017. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

February 20, 2017 in Current Events, Estate Planning - Generally, Estate Tax, Music, New Cases | Permalink | Comments (0)

Article on Domestic Partnerships for the Elderly After Obergefell

Domestic partnershipHeidi Brady & Robin Fretwell Wilson recently published an Article entitled, The Precarious Status of Domestic Partnerships for the Elderly in a Post-Obergefell World, 24 Elder L.J. (2016). Provided below is an abstract of the Article:

The Supreme Court’s landmark decision in Obergefell v. Hodges gave same-sex couples the right to marry in all fifty states, correcting the injustice that non-marital legal statuses like domestic partnerships were intended to remedy. Now that same-sex couples can marry nationwide, the federal government and states that created domestic partnerships are considering how to treat couples in those statuses — specifically, whether to treat domestic partners like spouses and whether to continue to offer non-marital legal statuses at all. Three states face a particularly thorny question post-Obergefell: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This Article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. Although domestic partnerships in these states primarily responded to the needs of gay couples who could not marry, legislators also saw the elderly as sympathetic: unfairly prevented from remarrying for fear of losing benefits from a previous marriage. This Article drills down on three specific obligations and benefits tied to marriage — receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program — and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. The Article concludes that as pressure mounts to fold domestic partners into marriage after Obergefell, legislators should examine whether domestic partnerships have become a province of the wealthy, undercutting the impetus for maintaining a second, collateral status.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

 

February 20, 2017 in Articles, Current Events, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

How Will We Make Up for the Estate Tax Repeal?

Estate tax repealAs we all know, President Trump has promised to repeal the estate tax, claiming that the tax is just plain wrong. It is easy to say that our country should repeal the estate tax, considering so few families actually pay the tax, but other tax areas will have to give in order to make up for the loss. The estate tax has two siblings—the gift tax and the generation-skipping tax. As of now, it is unclear how President Trump will balance the three taxes. His campaign website sketched out a plan that involved replacing the estate tax with a tax on all capital gains and no mention of the other two taxes. Ultimately, with the estate tax only generating 0.005% of annual tax collections, the tax incites more of a political debate than a federal revenue one. 

See Brian J. O’Connor, Once Again, the Estate Tax May Die, N.Y. Times, February 18, 2017. 

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

 

February 20, 2017 in Current Events, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Trusts | Permalink | Comments (0)