Wills, Trusts & Estates Prof Blog

Top SSRN Downloads

Here are the top downloads from March 20, 2007 to May 19, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	63	American History of Inheritance Law Adam J. Hirsch, Florida State University College of Law, Date posted to database: April 26, 2007 Last Revised: April 26, 2007
2	47	Janis: Two Perspectives of Basis Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 2, 2007 Last Revised: April 2, 2007
3	44	Big Bird Lays an Egg? Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 24, 2007 Last Revised: April 24, 2007
4	30	Equitable Apportionment: Recent Cases and Continuing Trends Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: April 1, 2007 Last Revised: April 11, 2007
5	30	Reforming the Gift Tax and Making it Enforceable Mitchell Gans, Jay A. Soled, Hofstra University - School of Law, Rutgers University, Date posted to database: May 2, 2007 Last Revised: May 17, 2007
6	14	Legal Regulation of Religious Giving Pauline Ridge, Australian National University - ANU College of Law, Date posted to database: April 16, 2007 Last Revised: May 4, 2007

New Attorney Dueling for Estate Planning Position

I recently received an e-mail from a step-mother helping her step-son, a recent law school graduate, to find a position in the estate planning and probate area.

According to the message, "[h]e completed a duel major course of study to get his BA degrees in English and History."  Aaron Burr would be proud!

USA Today Advocates "Paris Hilton Tax"

In an editorial today (May 18, 2007) entitled Too much, too soon, USA Today puts forth its argument in favor of retaining the estate tax.

After indicating that some exemption from the estate tax is acceptable and that provisions should exist to protect family businesses and farms, the editorial provides as follows:

But should government policy really be designed to perpetuate Paris, great-granddaughter of hotelier Conrad Hilton, and other dissolute descendants of the ultrarich? The consequence is that people of lesser means must be taxed instead.

If supporters of the estate tax had any sense, they'd counter the "death tax" ads with ones calling it the "inheritance tax" or, better yet, "the Paris Hilton tax." There would be no shortage of pictures to illustrate what happens when a person inherits too much money at too young an age.

Warren Buffett, the legendary investment genius and one of the world's richest men, had it right when he said the perfect amount of money to leave children is enough "so that they would feel they could do anything, but not so much that they could do nothing."

Indiana Enacts Revised Uniform Anatomical Gift Act

On May 3, 2007, the Indiana Governor signed legislation enacting the Revised Uniform Anatomical Gift Act.

Here is the legislative summary:

Provides that the law concerning the anatomical gift promotion fund expires July 1, 2012, instead of July 1, 2007. Adds references to Donate Life Indiana in the anatomical gift promotion fund law. Repeals the Uniform Anatomical Gift Act (current act) and replaces it with the Revised Uniform Anatomical Gift Act. Keeps language from the current act concerning: (1) anatomical gifts to specified donees and the amendment or revocation of these gifts; (2) individuals or entities that may petition a probate court to determine whether an individual has made an anatomical gift or revoked an anatomical gift; (3) hospitals inquiring whether patients are, or would like to be organ donors; and (4) certain immunities regarding anatomical gifts. Provides that if a prospective organ donor has a declaration or an advance health care directive, hospitals must use measures necessary to allow a procurement agency to determine the medical suitability of an organ by insuring that life support is not withdrawn before consultation with the procurement agency. Requires a coroner to cooperate with a procurement organization to maximize the opportunity to recover anatomical gifts. Requires a coroner to document why a postmortem examination occurred outside of a compatible period. Provides that if a coroner or designee of a coroner must be present at certain removal procedures or perform duties at times other than those that are usual and customary for the coroner or designee to maximize tissue or eye recovery, at the request of the coroner or designee, the procurement organization that requested the recovery of a part of a body shall reimburse the coroner or designee for the additional costs incurred by the coroner or designee. Makes it a Class A misdemeanor if an individual, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document that expresses, makes an amendment to, or refuses a gift of organs, tissues, eyes, or body part intended to be used in research or in transplants. Makes conforming amendments.

Special thanks to Sean J. Fahey (Hall Render Killian Heath & Lyman, P.C., Indianapolis) for bringing this development to my attention.

Patents and ERISA CLE

On June 14, 2007, the ABA Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel are sponsoring a teleconference entitled Do You Have to Pay a Royalty on Your ERISA and Tax Advice?

Here is a description of the program:

The growing area of “business method” patents should be of concern to all ERISA practitioners. A recent Supreme Court decision in SKR vs. Teleflex refers to “common sense” in this developing area. Our distinguished panel will discuss the brave new world of ERISA and tax patents including the following topics:

• Overview of the Patent Process
• State Street Decision and Business Method Patents
• Tax Shelter Issues
• World of Patenting ERISA Strategies
• Where do we go from here?
• Legislative Developments

The moderator will be Stuart Lewis (Buchanan Ingersoll, PC, Washington, DC) and the panelists may include Wynn Coggins (Director of Technical Services 3600, U.S. Patent and Trademark Office, Washington, DC), Ellen Aprill (Loyola Law School, Los Angeles, CA), Greta Cowart (Haynes and Boone, Dallas, TX), and Robert Winters (Buchanan Ingersoll, PC, Washington, DC).

History of American Inheritance Law

Adam J. Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) has recently posted on SSRN his article entitled American History of Inheritance Law.

Here is the abstract of his article:

This essay, written for the Encyclopedia of Legal History, summarizes and examines the history of inheritance law in the United States, from colonial times to the present day. The essay suggests that while British statutory and common law was the main source of American inheritance law - as one would expect in British colonies, inhabited by English settlers - American lawmakers began to go their own way in some respects from the very beginning, deviating from British rules of probate jurisdiction, intestacy, and will formalization and substituting rules that better suited colonial conditions. The American Revolution freed Americans to deviate as widely as they wished from British law. Still, following a burst of inheritance legislation inspired by republican values, such as the abolition of entails, the law in this area changed only gradually and in relatively small ways over the course of United States history.

Although increased protection from disinheritance for a surviving spouse represents one abiding theme, American inheritance law has always been, and remains, marked by a robust freedom of testation that distinguishes our law from that of modern Britain and other countries in the western world.

Jury Finds Blattmachr Breached Fiduciary Duty BUT Finds No Damages Resulted

The following is reproduced from the Tax Prof Blog:

The Wall Street Journal reports today [May 16, 2007] that a New York jury has found that Jonathan G. Blattmachr, one of the country's leading estate planners and Chair of the Trusts & Estates Group at Milbank, Tweed, Hadley & McCloy (New York), breached the fiduciary duty he owed to a client, Marvin Schein, whose father founded medical-supplies company Henry Schein Inc.:

[T]he amended complaint alleged, among other things, that Blattmachr persuaded Schein to pursue a tax-avoidance strategy even though Blattmachr sensed IRS hostility toward it. The strategy, called a “split-dollar insurance arrangement,” involved the purchase of life insurance to avoid estate taxes. In December 2000, Schein paid roughly $12 million in premiums for about $340 million in life-insurance policies. The IRS effectively halted the strategy in August 2002, a move Schein said rendered his policies useless. Schein’s win was a hollow one, though. The Long Island jury ruled that the breach wasn’t a substantial factor in causing Schein injury. As a result, Schein won’t be able to recover damages.

Anna Nicole Smith's Will Filed for Probate

Anna Nicole Smith's will (discussed previously on this blog) was filed for probate on Monday (May 15, 2007) by Howard K. Stern.

A dispute between Stern (the will's executor) and Birkhead (Dannielynn's father) will ensue over who should be the guardian of Dannielynn's estate.

See Smith's will left $710K to deceased son, Yahoo News!, May 15, 2007.

Of course, as discussed earlier, others may argue that Dannielynn is not entitled to any portion of Anna's estate because of the "negative" aspect of her will which excluded all afterborn children.

Special thanks to Sara Hudman (May 2008 J.D. Candidate, Texas Tech University School of Law) for bringing this development to my attention.

Does Slayer Statute Cover Insane Killer?

Richard O'Neal killed his mother.  He pleaded not guilty by reason on insanity and was committed to a West Virginia mental health facility.

The issue now being addressed is whether O'Neal may still inherit from his mother.  The applicable slayer statute disqualifies someone who is "convicted of feloniously killing" the person from whom the person is attempting to inherit.  But, O'Neal was not so convicted.  Nonetheless, his mother's other two children claim that he should not profit from his wrongful act.

Special thanks to Matthew Heller for bringing this case to my attention.  You may also read his discussion of this issue at Estate Claims "Insane" Killer Can't be Victim's Heir, On.Point Legal News, May 15, 2007.

California Community Property Casebook

Prof. Grace Ganz Blumberg (University of California at Los Angeles) has recently authored the 5th edition of her casebook entitled Community Property in California.

The publisher (Aspen) describes the book as:

Well written and thoughtful, this casebook provides an up-to-date and in-depth exploration of community property in California.  Students and instructors alike will welcome Community Property in California, Fifth Edition, classroom tested and used by generations of California law students.

Of particular importance are the updates to reflect the recent changes in the law of marital transmutations.

Marilyn Monroe Could Not Give Away Her Publicity Right

The following is from Tom Perrotta, Lensman's Estate Wins Battle Over Images of Marilyn Monroe, NY L.J., May 4, 2007.

A federal judge in Manhattan has sided with the family of late photographer Sam Shaw in a dispute over the rights to images of Marilyn Monroe.

Southern District of New York Judge Colleen McMahon rejected a claim that the estate of Shaw had violated Monroe's right of publicity by selling photos without the consent of Marilyn Monroe LLC, a company founded by the Hollywood icon's heirs.

The judge, writing in Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 05-CV-3939, said the laws of New York, California and Indiana, which were at the heart of the dispute, did not grant a retroactive right of publicity to Monroe after her death.

"Ms. Monroe could not devise by will a property right she did not own at the time of her death in 1962," the judge wrote.

2010 -- An Estate Tax Odyssey

Jonathan G. Blattmachr (partner, Milbank, Tweed, Hadley & McCloy, LLP, New York) and Michael L. Graham (The Graham Law Firm, Dallas) have recently published their article entitled Thinking About the Impossible for 2010: No Estate Tax and Carryover Basis, Prob. & Prop., May/June 2007, at 12.

Here is the conclusion of their article:

Although most would probably place the chances at less than 50% that the year 2010 will bring a repeal of federal estate ax and its companion carryover basis, it is far from impossible.  It seems prudent to plan for repeal of federal estate tax and carryover basis now by having a decedent's estate planning documents structured to maximize flexibility and savings.  In addition, married clients need to decide how much should pass into a nonmarital deduction trust and how much, if any, should pass to (or in a QTIP trust for) the surviving spouse.  Although from an overall perspective it seems appropriate to minimize what the survivor inherits if there is no estate tax, the carryover basis provisions suggest a sizable disposition to the spouse (or, perhaps, better yet, to a QTIP trust) to take advantage of the $3 million spousal increase in basis rule under Code § 1022.  Also, executors/personal representative should be specifically authorized to make such allocations of basis increase as they think best.

Keeping the "Fun" in "Funeral"

In Plan your Funeral, USA Weekend, May 11-13, 2007, at 12, Judy Mandell makes four keep suggestions for planning your own funeral:

• Be specific -- describe precisely what you want done when you die
• Consider cremation -- there are many cool disposition options upon cremation because so many things can be done with the ashes
• Plan a postmortem party -- invite your family and friends to a special party, cruise, or other activity
• Make a memory video -- leave personal messages to family and friends like Kirk did in the famous Tholian Web episode.

Sperm Donor Ordered to Pay Child Support

A Pennsylvania appellate court ruled in early May 2007 that a sperm donor who assisted a same-sex couple to conceive two children is responsible for child support.  Any interesting twist to this already fascinating case is that the sperm donor has recently died raising the issue of the liability of the estate for child support from the time of his death until the children reach majority in approximately a decade.

See Mark Scolforo, Court: Sperm donor must pay child support, The York Dispatch, May 10, 2007.

Special thanks to Neil Hendershot for pointing out this case.  You may read his detailed discussion of this case on his blog at Who's Your Daddy -- a Donor?.

Flexible Trusts CLE

The National Constitution Center is sponsored a live audio conference on June 1, 2007 entitled Keys to Drafting Flexible Trusts and Estate Plans. 

Here is a description of the program:

Estate Planning Attorneys can’t foresee what the future will bring for their clients. Estate Planners must be able to create flexible trusts and estate plans which protect your clients’ assets and their family’s welfare for years to come. Join us for a 60-minute, live audio conference where you and your colleagues will discover:

• Strategies for building flexible trusts which prepare for any situation
• How disclaimers and Trust Protectors provide much-needed flexibility
• Practical tips on sophisticated estate planning techniques
• Tax planning strategies: protect assets now and in the future