Wills, Trusts & Estates Prof Blog

"The Layman's Guide to Suicide" Seeks New Publisher

Authors Rob Cummings and Tod Weston are seeking a new publisher for their very humorous (if you don't mind "dark" humor) book entitled The Layman's Guide to Suicide originally published in 1995 by Paladin Press.

The authors explain that "[n]othing is worse than an ill-planned, haphazard, last-minute suicide."  Here is a summary of the coverage of this book:

• Proper Suicide Etiquette  (what you don't know can hurt)
• Income-producing ideas (to help fund better Services)
• Fashion Tips for the big day (based on technique)
• A fill-in-the-blanks Suicide Note (with blame checkboxes)
• Tips on writing your own Epitaph (fun at the services)
• Fun and creative suggestions for your Eulogy
• Advanced Techniques (if you have the time and energy)
• 'Quickies for the Poor' (for those strapped for cash)
• A list of people and things to die for
• How to place the blame on others (and let them know!)
• How to have fun with your Will (we call it 'Will Power')
• Tips on making your Services memorable & exciting!
• Writing your own Epitaph (see some standouts below)
• How (and when) to write and send your own obituary
• What to do if you fail (and are capable of another attempt)
• Much, much more (many more things to consider)

This book grew out of the suicides of the authors' friends.  The authors believe that humor may act as a deterrent to actually committing suicide.

I don't know if this is correct but it has been proven that "laughing lowers blood pressure, reduces stress hormones, increases muscle flexion, and boosts immune function * * *.  Laughter also triggers the release of endorphins, the body's natural painkillers, and produces a general sense of well-being."  Therapeutic Benefits of Laughter, Holisticonline.com.  Perhaps Rob and Tod are on to something!

Enforceability of Charitable Gift Promises

Reynolds Cafferata (Partner, Rodriguez, Horii & Choi LLP; Lecturer, USC Gould School of Law) has recently published an article in The Journal of Gift Planning entitled Should Pledges be Enforceable? And Other Questions to Ask About Gift Agreements.

In this article, the author

explores both the harm and benefit that may arise from enforceable pledge agreements, and reviews the many issues that should be considered in drafting an enforceable agreement that serves both the donor and the charity. He proposes alternatives to enforceable pledges, including the statement of intent to make a gift and the revocable enforceable pledge.

Virtual Internship Program

The National College of Probate Judges and the Stetson University College of Law have created a Virtual Internship Program.

The intern will be assigned to do legal research for a probate judge at no charge.  The benefit to the Intern is the opportunity to work with a judge and receive useful feedback.  Professor Rebecca C. Morgan will coordinate at Stetson’s end and John N. Kirkendall (NCPJ President) will be the point of contact for the National College of Probate Judges.  At the conclusion of the internship, the probate judge will be asked to prepare an evaluation and the student may ask the judge to be a reference for use in job seeking at graduation. 

The National College of Probate Judges will also arrange for a suitable certificate to be presented to the student at graduation.

[The above information is adapted from an e-mail I received from John N. Kirdendall.]

Estate of George Galbraith

The possibility of significant litigation is brewing in Hawaii involving the testamentary trust of George Galbraith which is set to terminate in 2007.

Galbraith's will took effect in 1904 and disposed of his residuary estate in trust, with a number of fixed annuities to be paid to about 48 individuals, and then to their heirs. The will stated the trust is to continue for the longest duration permitted under Hawaii law. At the end of the permitted period, the remaining trust estate is to be distributed equally to those entitled to the annuities.

The poorly drafted will created much confusion over the ultimate disposition of the trust estate (which is valued in the millions). Over the years, the annuities beneficiaries have increased and live all over the world from Ireland to Australia and Hawaii, while the amount of the annuity payments essentially remained the same since 1905. Some speculators reportedly have been purchasing annuity interests from beneficiaries who may have no idea how much their interest may be worth. The strange thing according to some is that the current "beneficiaries" are not the holders of the annuity but rather the lawyers, trustee, and governments raking in fees and taxes.

For more information, see the unofficial site for news and background on the Estate of George Galbraith and its coming breakup.

New York Times Editorial Claims Civil Unions Inadequate

In an editorial entitled The Inadequacy of Civil Unions appears in today's (June 7, 2007) New York Times triggered by Connecticut’s recent recognition of civil unions as discussed earlier on this blog.

The editor concludes that a

law that allows civil unions but not marriage is preferable to denying benefits and recognition to same-sex couples. But no one should confuse it with equality.

Dr. Sidney Wanzer Lends Support to Dr. Kevorkian

Earlier on this blog, I reported on a New York Times editorial critical of Dr. Jack Kevorkian.

Dr. Sidney Wanzer, president of Compassion and Choices of Greater Boston, has written an article published yesterday (June 6, 2007) in USA Today entitled 'Dr. Death' served us all with time in prison in which he explains that supporters of Dr. Kevorkian claim that he

did all of us a service by pointing out what he thought was the right of a dying, suffering person to have autonomy over the manner and timing of death. In doing so, he brought this matter to the acute attention of the public in a way that no one had done before.

The latter is the important outcome. Kevorkian forced us to examine critically the need for new laws that will allow dying persons to end life in certain circumstances when this is the only truly compassionate treatment.  * * *

Without fearing abuse, we should permit intolerably suffering patients the right to exert this ultimate autonomy in choosing the manner of their dying. Oregon and three countries in Europe allow this, but we all should have that option.

Doctors shouldn't have to go to jail for acting compassionately.

Proposed Grantor Retained Interest Trusts Regulations

Today (June 6, 2007), the IRS issued proposed regulations to provide "guidance on the portion of a trust properly includible in a grantor’s gross estate under Internal Revenue Code (Code) sections § 2036 and 2039 if the grantor has retained the use of property in a trust or the right to an annuity, unitrust, or other income payment from such trust for life, for any period not ascertainable without reference to the grantor's death, or for a period that does not in fact end before the grantor's death."

A public hearing is scheduled for September 26, 2007.

See Fr. Doc. E7·11062 as posted by KPMG.

Recommendations to Prevent Gift Tax Avoidance

Mitchell Gans (Steven A. Horowitz Distinguished Professor of Tax Law, Hofstra University - School of Law) and Jay A. Soled (Professor, Accounting, Business Ethics & Information Systems and Director, Master of Accounting in Taxation Program, Rutgers University) have recently posted on SSRN their article entitled Reforming the Gift Tax and Making it Enforceable.

Here is the abstract of their article:

Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers' abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers' transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions.

Connecticut & the Anti-Lapse Statute

Jeffrey A. Cooper (Associate Professor of Law, Quinnipiac University School of Law) has recently posted on SSRN his article entitled A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute.

Here is the abstract of his article:

The Connecticut case of Ruotolo v. Tietjen concerns a will providing a bequest to a named individual “if she survives” the testator, language commonly employed in traditional estate planning documents. The named beneficiary did not survive the testator, raising the question of who should receive her “lapsed” bequest. Connecticut's “anti-lapse” statute drafted in 1821, provided that the beneficiary's surviving children would take the bequest unless the will effectively directed another result. The crucial question therefore was whether the affirmative condition “if she survives” negated operation of this default statute. The Connecticut Appellate Court, in a case of first impression, concluded that such words of survivorship failed to effectively negate application of the anti-lapse statute. The Supreme Court agreed, affirming the Appellate Court's opinion and sending shockwaves through the state's estate planning bar.

In this Article, I contend that the Appellate Court's opinion reached the wrong result, and that the Connecticut Supreme Court was unwise to embrace it. The judges of the Appellate Court adopted a widely-criticized minority rule without indicating, and perhaps without even realizing, they were doing so. The result potentially impacts the future interpretation of countless existing estate planning documents and leaves the Connecticut bar struggling to respond. In addition, the opinion casts a wider pall by according too little respect to the traditional role of estate planning attorneys in communicating their client's testamentary desires, while giving too much deference to the modern proposals reflected in the 1990 version of the Uniform Probate Code (hereinafter “the UPC”). While the case most directly impacts Connecticut probate practice, it implicates broader themes concerning the interaction between traditional estate planning principles and modern probate legislation.

Jurisdiction and the Non-Resident Executor

In the case of In re Estate of Davis, 216 S.W.3d 537 (Tex. App.—Texarkana 2007, pet. denied), an out-of-state individual who was appointed as an executor in Texas and who thereafter allegedly mismanaged the estate asserted that the Texas probate court lacked jurisdiction over him.

The court looked at a variety of factors such as the appointment of a resident agent to accept service of process, making trips to Texas, and petitioning the Texas court to be recognized as the independent executor, to demonstrate that there were sufficient minimum contacts with Texas to authorize Texas to assert jurisdiction.  The court also reviewed the facts and held that the assertion of personal jurisdiction did not offend traditional notions of fair play and substantial justice.

Moral:  A non-resident who serves as a personal representative in Texas should expect to be subject to the personal jurisdiction of Texas courts.

Exempt Status of Inherited IRA

In the case of In re Jarboe, 2007 WL 987314 (Bkrtcy. S.D. Tex. 2007), Mother died leaving her IRA to Son.  Several years later, Son filed for bankruptcy claiming that the IRA was exempt under Texas Property Code § 42.0021.  The bankruptcy trustee, however, asserted that the inherited IRA was not exempt because it “does not qualify under the applicable provisions of the Internal Revenue Code” as required by § 42.0021.

The court agreed with the bankruptcy trustee that the IRA was not exempt.  The trustee conceded that if Mother were the bankrupt debtor, § 42.0021 would exempt the IRA.  However, in this case, the debtor obtained his interest upon his mother’s death which means Son’s interest is in an “inherited” IRA.  The court recognized that no case in the Fifth Circuit had addressed the exempt status of an inherited IRA but was impressed with the reasoning of bankruptcy cases from other circuits which deny inherited IRAs exempt status.  The basis of the distinction is that inherited IRAs were not funded by the debtor and thus the policies behind exempting these accounts do not apply.  In addition, § 42.0021 requires that the account not just be called an IRA, but it must meet the technical requirements of 26 U.S.C. § 408 to qualify.  An inherited IRA does not so qualify for a variety of reasons such as the beneficiary being unable to roll over the IRA into another account or make further contributions to the account and having the ability to make withdrawals without penalty and being required to withdraw the entire amount within five years.

Accorrdingly, a person who receives an IRA from a person other than his or her spouse and who is concerned about its availability to creditors upon bankruptcy may wish to reinvest the proceeds in  assets which are clearly exempt.

New York Times Disses Dr. Kevorkian

In an editorial in today's (June 5, 2007) New York Times, the editor states:

Dr. Jack Kevorkian — a k a “Doctor Death” for helping chronically ill and terminally ill patients commit suicide — has emerged from prison as deluded and unrepentant as ever. Brushing aside criticism by other supporters of medically assisted suicide that his tactics were reckless and harmful to their cause, Dr. Kevorkian asserted: “I did it right. I didn’t care what they did or didn’t do. When I’m going to do it, I’m going to do it right.”

The irony, of course, is that he did it wrong, and in performing assisted suicides so badly, he besmirched the movement he hoped to energize. * * *

The fundamental flaw in Dr. Kevorkian’s crusade was his cavalier, indeed reckless, approach.

See Editorial, Dr. Kevorkian’s Wrong Way, NY Times, June 5, 2007.

Sir Benjamin Slade Finds Heir

Earlier on this blog, I reported how Sir Benjamin Slade, a wealthy Englishman, who owns an estate in England worth approximately $13 million was seeking an heir for his estate in the United States.  His estate includes a 13th-century manor house in Somerset.  Applicants needed to meet the following requirements:

• Cannot be a drug addict.
• Must have enough funds to pay $140,000 per year to upkeep the manor.
• Must be willing to invest $1 million to fix the stables.
• Must fix the driveway for an estimated $70,000.
• Cannot be a Communist.
• Must be heterosexual.

Sir Slade planned to run an Apprentice-style reality television show in which potential heirs spend time in the Manor and endure various challenges.  Sir Slade would then eject the losers with the phrase, "You're disinherited."  See Sarah Lyall, Seeking a Willing Heir, an Aristocrat Turns to America, NY Times, March 7, 2006.

I'm Really a Royal ran on the Discovery Channel in 2006.  After reviewing approximately 15,000 applicants, Sir Slade found an actual blood relative who turns out to be famous on his own -- rock singer Isaac Slade of The Fray.

According to Casey Schwartz, He Wants to Be a Millionaire, ABC News, June 1, 2007:

The meeting between Sir Benjamin Slade and Isaac Slade apparently went well. "He is a very successful, clever young man," said Sir Benjamin. "He doesn't drink, doesn't smoke, doesn't take drugs. They're all Christians in that band."

And that's not all he has going for him.

"I showed him all the cows, and he was very handy with the animals, actually," Sir Benjamin said. "His grandfather was a cowpoke."

Perhaps Isaac Slade is fated to inherit Maunsel House. According to Sir Benjamin, Isaac "looks like some of the portraits of the ancestors." Nevertheless, the competition isn't over yet.

"I'm going to see all these relatives in America, have a bit of fun first," Sir Benjamin said. "There's a party for 150 Slades in Maryland on the Fourth of July. I'm determined to go."

Special thanks to Prof. Joel C. Dobris of the University of California -- Davis for pointing out this development.

Dr. Jack Kevorkian Speaks Out

As reported earlier on this blog, Dr. Jack Kevorkian was released from prison on June 1, 2007.

Dr. Kevorkian has wasted no time in speaking out on his views of physician-assisted suicide.  In an interview yesterday (June 3, 2007), he

let loose a rush of fierce words about a nation that did not pass any new laws allowing assisted suicide while he was in prison. Again and again, he called the government “the tyrant.” He called the public “sheep.” He called some of his harshest critics “religious fanatics or nuts.” * * *

Mr. Kevorkian also criticized the existing Oregon law — and other proposed legislation, including a bill being considered in the California Legislature this week — as not going far enough. Most proposed laws require ill people to administer the lethal drugs themselves, which Mr. Kevorkian said would exclude people unable to move or swallow on their own and in need of a physician’s direct help.

See Monica Davey, Kevorkian Speaks After His Release From Prison , NY Times, June 4, 2007. 

Anna Nicole Smith Case Triggers Collateral Lawsuits

As reported earlier on this blog, DNA evidence proved that Larry Birkhead is the father of Anna Nicole Smith's daughter, Dannielynn.

Now, Larry Birkhead is suing his attorney, Debra Opri.  According to AP, Birkhead sues attorney in Anna Nicole Smith baby fight, CNN.com, June 3, 2007, he

claims that Debra Opri offered to represent him for free during a paternity dispute involving the baby because the publicity would benefit her career. * * *  Birkhead's lawsuit accuses Opri of depositing at least $865,000 owed to him for an unnamed project into an attorney client trust account against his wishes. After Opri refused to turn over the money, Birkhead fired her * * *

Birkhead filed his lawsuit a few days after Opri sued him for not paying for her legal services.

Cemeteries -- Vacation Spots for the Living?

Some cemetaries are already tourist destinations such as the Normandy American Cemetery and Memorial pictured to the right.

According to Patricia Leigh Brown, In Need of Income, Cemeteries Are Seeking Breathing Clientele, NY Times, May 25, 2007:

Historic cemeteries, desperate for money to pay for badly needed restorations, are reaching out to the public in ever more unusual ways, with dog parades, bird-watching lectures, Sunday jazz concerts, brunches with star chefs, Halloween parties in the crematory and even a nudie calendar.

Laurel Hill, the resting place of six Titanic victims, promotes itself as an “underground museum.” The sold-out Titanic dinner, including a tour of mausoleums, joined the “Dead White Republicans” tour (“the city’s power brokers, in all their glory and in all their shame”), the “Birding Among the Buried” tour, and “Sinners, Scandals and Suicides,” including a visit to the grave of “a South Philly gangster who got whacked when he tried to infiltrate the Schuylkill County numbers racket.”  * * *

The new cemetery tourism — a subterranean version of the History Channel — is also a means of developing brand loyalty in the wake of what Joseph Dispenza, president of the historic Forest Lawn in Buffalo, calls a “diminishing customer base” [caused by more people choosing cremation].

Trusts for Wild Animals

Estate planning for pet owners is gaining in popularity and is discussed in detail here.

It has recently been reported that the state and federal officials are considering establishing a trust for wild grizzly bears and gray wolves in the Montana, Idaho, and Wyoming area.  Funding for the trust would come from Congress, states, corporations, and nonprofit organizations.

It is hoped that the trust corpus could reach $100 million so that the income would be adequate to fund hiring biologists, purchasing radio collars, and other expenses.

For more information, see AP, Grizzlies, wolves could get trust fund, CNN.com, May 18, 2007.