Wills, Trusts & Estates Prof Blog

Inheritance Advice

In Death's certain. Taxes? Avoidable, USA Today, Aug. 24, 2007, at 4B, Mindy Fetterman provides advice on:

• How to make inter vivos gifts to reduce taxes (e.g., annual exclusion gifts, marital deduction, exemption equivalent gifts and estates, etc.), and
• How to manage an inheritance since "70% of all inheritances are frittered away in the first three years."

The Robert C. East Estate Battle Continues

Here is a brief overview of the fascinating case involving Robert C. East, a wealthy Texas man worth several hundred million dollars:

• East was unmarried with no known descendants.
• East's will left the entire estate to a family wildlife trust, the Robert C. East Management Trust.
• In late 2006, East's health started a downward spiral.
• In May 2007, some of East's relatives sought a court-appointed guardian.
• A fight ensued over who would have control over his vast holdings.
• Oscar Ozuna, East's ranch foreman since 2001, claimed that he had worked with East for decades and that East would have wanted him to be in charge.
• Ozuna had documents that East signed giving him a long-term employment contract at $11,000 per month, naming him as one of three officers of the Management Trust, providing Ozuna with a $500,000 "bonus" upon East's death, and naming the same people as his agents in a durable power of attorney.
• East's relatives, however, viewed Ozuna as an evil man who was exerting undue influence over East to sign these documents and/or that East was incompetent at the time he signed them.
• The court did not appoint a guardian but did name an attorney ad litem for East.
• District Court Judge Alex Gabert sealed the court documents regarding the attempt to have a guardian appointed for East.
• The San Antonio Express-News somehow obtained these court documents and published information about the fight over East's competence and the testimony of friends, family members, and doctors which contained considerable evidence of East's incompetency.
• The fight continued with what is called a "secret showdown" where in mediation the parties reached a tentative agreement to have Ozuna and the other two men banned from East's ranch.
• East's health was failing rapidly.  If East were to die before the agreement was finalized, the mediation would be void.
• On June 15, 2007, Judge Gabert signed an order approving East's will (a highly unusual and perhaps invalid action as Texas does not recognize the probate of a will of a living person), the settlement agreement, and other documents.  As a result, Ozuna received almost $900,000.  Ozuna and other other men agreed to drop all claims to East's estate, renounce their authority as agents under East's power of attorney, and resign as officers of the Management Trust.
• On June 18, 2007, East died.
• Less than two weeks later, the Attorney General of Texas notified the parties that a complaint had been filed about East's case because not all of the parties were present at the hearing in which Judge Gabert approved the settlement agreement.
• On August 22, 2007, Judge Gabert order the San Antonio Express-News not to publish articles about East if they contain information derived from the court documents, even if they were obtained properly.  Raising significant First Amendment concerns, the judge gave the newspaper five days to surrender any paper copies of the documents and to destroy electronic records.
• Lawyers for the newspaper's owner (The Hearst Corp.) are preparing a response to Judge Gabert's order.

For more information, see John MacCormack, Ranch foreman is inheriting legal fight, San Antonio Express-News, Aug. 23, 2007; John MacCormack, Judge demands paper return court documents, San Antonio Express-News, Aug. 23, 2007.

"Living Inheritances" Gain in Popularity

According to Mindy Fetterman, 'Giving while living' reshapes inheritances, USA Today, Aug. 24-26, 2007, at 1A:

"Giving while living" is becoming popular as more Americans decide to spread their money around while they're still here to see its impact. They're giving to children, grandchildren and others. They're paying for college educations and providing down payments for houses. They're setting up trusts and paying for vacations.

The article explains that even people of modest wealth are making greater use of inter vivos gifts, even to family members who actually earn more than the donors!

The article also points out how fewer than 25% of Americans actually inherit money (I think the author is using the term inherit to include both taking under intestacy and under a will).

Personally, I wonder whether the increase in gifting is due to a real desire to "see its impact" or because younger generations feel "entitled" to their elders' property and exert subtle (and sometimes not so subtle) influence to get free money early.

Will Estate Planners Join the "Thousand Dollar Bar"?

A recent report reveals that lawyers in several New York law firms (e.g., Simpson Thacher & Bartlett; Cadwalader, Wickersham & Taft; and Fried, Frank, Harris, Shriver & Jacobson) are now charging $1,000 per hour for their services.

I wonder if any estate planners have joined the ranks of these attorneys.

See Debra Cassens Weiss, Top Lawyers Bill $1,000 an Hour, ABA J. Law News Now, Aug. 22, 2007.

"Death at a Funeral"

A recently released movie entitled Death at a Funeral may have some estate planning overtones.

Here is a description of the movie from the IMDb.  If you have viewed the movie and would like to post a review, please submit it as a comment to his posting.

On the morning of their father's funeral, the family and friends of the deceased each arrive with his or her own roiling anxieties. The son, Daniel (Matthew MacFadyen), knows he will have to face his flirty, blow-hard, famous-novelist brother Robert (Rupert Graves), who's just flown in from New York--not to mention the promises of a new life he's made to his wife Jane (Keeley Hawes). Meanwhile, Daniel's cousin Martha (Daisy Donovan) and her dependable new fiancé Simon (Alan Tudyk) are desperate to make a good impression on Martha's uptight father--a plan that literally goes out the window when Simon accidentally ingests a designer drug en route to the service, leaving him prone to uncontrollable bouts of delirium and nudity in front of his potential in-laws. Then comes the real shocker: a mysterious guest who threatens to unveil an earth-shattering family secret. It is now up to the two brothers to hide the truth from their family and friends, and figure out how to not only bury their dearly beloved, but also the secret he's been keeping.

Inheritance Tax and Trusts English Style

Recent changes to the law governing inheritance taxes in England are detailed in Emma Simon, Inheritance tax: a question of trust, Telegraph, Aug. 22, 2007.  The article explains:

Changes introduced in last year's Budget made setting up and running a trust unnecessarily complicated and cumbersome. Amazingly, the Revenue has seen the light and simplified the process. * * *

Tax doesn't have to be complicated – but it invariably is, particularly when it comes to inheritance tax and estate planning. But in a rare move HM Revenue and Customs, last week announced plans to cut red tape and simplify the tortuous process many people have to go through when they are giving money or assets away.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

Fourth Edition of "Elder Law: Cases and Materials" Released

Earlier on this blog, I discussed the forthcoming release of the Fourth Edition of Elder Law: Cases and Materials, by Lawrence A. Frolik (Pittsburgh) and Alison McChrystal Barnes (Marquette).

This book has now been released and is available from LexisNexis.

Here is a description of this book:

The Fourth Edition of Elder Law integrates new developments in law and policy into the familiar framework of past editions. A mix of the specific and the general, the book examines the response of our society to an aging population, the legal rights of the elderly, and the legal, economic, and health challenges of the elderly. The authors use carefully edited classic and new cases, excerpts from the experts, and descriptive commentary to challenge and instruct students. Questions and problems provide the instructor an opportunity to query students and expand their understanding of the material.

The perspectives of legal practice and legislative development receive due attention in chapters that cover income and employment, housing and supportive services, nursing home quality and costs, substitute health and final decision making, and elders and crime. The broad scope of the book builds on foundational legal education in property rights, civil and human rights, and government action, while permitting the teacher the opportunity to supplement or expand upon the material.

A Teacher’s Manual provides the authors’ pedagogical insights and answers to the Questions. In addition, the companion Statutory volume, Elder Law: Selected Statutes and Regulations, includes all relevant statutes and regulations.

"The game of life is hard to play -- I'm gonna to lose it anyway"

A variety of interesting thoughts are presented in Reuters, Death and dying: When is it time to let go?, July 31, 2007:

• End-of-life issues top the list of ethical dilemmas hospitals face as medical progress enables doctors to extend an endangered life to the hard-to-determine point where they may actually only be dragging out death.

• These patients used to just die naturally, but now it might be doctors, hospital ethics committees or courts that decide if and when to let them. The more science discovers, especially about the brain, the harder it can get to make that decision.

• "Our technology is ahead of our morals," said Washington Hospital Center medical director John Lynch. "From an ethical point of view, we haven't learned when to use our technology.

• Even if further treatment is clearly futile, worried families can have difficulty accepting that a loved one in intensive care will not make it through * * *.

• "The two biggest manipulation tools that patients and family use are God and lawyers," said Nneka Mokwunye, director of the Center for Ethics at the Washington Hospital Center.  "They know that lawyers scare the bejesus out of doctors," she said, "and if the lawyers don't scare them, God will. If somebody says you must keep my loved one alive until God performs a miracle, they don't know how to respond to that."

• New research shows patients deemed brain-dead might still be conscious.

• About 15 percent of patients actually sign advance order for end-of-life care.

Acknowledgment:  The title quote is from Suicide is Painless, better known as the theme song from M*A*S*H.

A Star Trek Shelley v. Kraemer Interface?

In addition to wills, trusts, and estates related courses, I am also teaching first year Property this semester.  Today, we covered the Shelley v. Kraemer case regarding the United States Supreme Court's refusal to enforce racially restrictive real property covenants. After class, one of my students asserted that there was Star Trek Next Generation episode based on this case in which the names of the characters were adapted from this case.   If you have any idea of which episode this might be, please let me know.  TIA.

Leona Helmsley's $1.4 Million Mausoleum

Earlier on this blog, I reported on the death of Leona Helmsley.  According to Daniel Trotta, New York's Helmsley to rest in $1.4 mln mausoleum, Reuters, Aug. 21, 2007:

New York real estate queen Leona Helmsley will be lavishly laid to rest in a mausoleum worth $1.4 million -- more than the average Manhattan apartment. * * *

She will be entombed at Sleepy Hollow Cemetery north of New York City where more than 40,000 people including captains of industry and common immigrants are buried, said Phil Zegarelli, the mayor of Sleepy Hollow, population 10,000.

The wooded hillside with river views is the final resting home of industrialists such as Andrew Carnegie and Walter Chrysler as well as labor leader Samuel Gompers and writer Washington Irving, author of "The Legend of Sleepy Hollow."

"Green Burial" Book Published

Earlier on this blog, I discussed the "green burial" movement.  As a result, I was contacted by Mark Harris the author of a new book entitled Grave Matters: A Journey Through the Modern Funeral Industry to a Natural Way of Burial.

The following is from the press release for his most interesting book published by Scribner earlier this year:

By the time Nate Fisher was laid to rest in a woodland grave sans coffin in the final season of Six Feet Under, Americans all across the country were starting to look outside the box when death came calling.
   

Grave Matters follows a dozen such families who found in "green" burial a more natural, more economic and ultimately more meaningful alternative to the tired and toxic send-off on offer at the local funeral parlor.
   

Eschewing chemical embalming and fancy caskets, elaborate and costly funerals, they have embraced a range of natural options, new and old, that are redefining a better American way of death. Environmental journalist Mark Harris examines this new green burial underground, leading you into natural cemeteries and domestic graveyards, taking you aboard boats from which ashes and memorial "reef balls" are cast into the sea. He follows a family that conducts a home funeral and delivers a loved one to the crematory, another that hires a carpenter to build a pine coffin.
   

In the morbidly fascinating tradition of Stiff, Grave Matters details the embalming process and the environmental aftermath of the standard funeral. Harris also traces the history of burial in America, from frontier cemeteries to the billion-dollar business it is today, reporting on real families who opted for more simple, natural return.

For readers who want to follow their example and, literally, give back from the grave, an appendix details everything they need to know, from exact costs and laws to natural burial providers and their contact information.
   

Mark Harris is a former environmental columnist with the Los Angeles Times Syndicate. His articles and essays have appeared in the Chicago Tribune, E: The Environmental Magazine, Reader's Digest, Vegetarian Times and Hope. He is a member of the Society of Environmental Journalists. He lives with his family in Pennsylvania.

Lady Bird Johnson's Will Filed for Probate

On Monday, August 20, 2007, the will of Claudia "Lady Bird" Johnson was filed for probate.  She was the widow of the 36th United States President, Lyndon B. Johnson.  The complete will is available here.

Here entire estate "pours over" into the "Clauda T. Johnson Lifetime Trust."

According to Claire Osborn, Lady Bird Johnson's will leaves estate to daughters, American-Statesman (Austin, TX), Aug. 22, 2007, her two daughters, Lynda Johnson Robb and Luci Baines Johnson, will ultimately receive her estate.

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

Writing Opportunity for Law Professors

The following posting is from Raymond P. Camiscioli:

Legal publisher is seeking professors who teach in the areas of wills, trusts, estate planning and estate administration to write “Expert Commentaries” (E.C.) on recent cases, legislation and regulations pertaining to estates practice.

Each E.C. is approximately 4-5 pages, double-spaced. $300 per E.C.

This is a great opportunity to further enhance your standing (and your school’s) in the academic and law firm community while earning extra money writing on a topic you enjoy.  Please email your current C.V. to raymond.p.camiscioli@lexisnexis.com.

Estate of Robert Brooks (owner of Hooters)

Robert Brooks, the owner of the Hooters restraurant chain, died on July 15, 2006 of a heart attack.  He is survived by his wife Tami, two blood children (Coby & Boni) and two stepchildren (Jerrett & Christi Oates).

Under the terms of Robert's will, Tami would receive $1 million per year for 20 years.  It appears, however, that Tami may claim the elective share (one-third of Robert's estate) which is likely to be greater than the $20 million to which she is entitled under the will.

See Observer, Financial Times, Aug. 20, 2007.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this development to my attention.

UMKC Suspends LL.M. in Estate Planning Program

According to the University of Missouri Kansas City's website:

Effective fall semester 2007, the Master of Laws (General) with Estate Planning Concentration program has been suspended. Applications are not accepted for and students may not enroll in the program at this time.

Temple University Seeks Trusts & Estates Professor

Temple University James E. Beasley School of Law has several openings for tenure track professors.  While Temple will be filling positions in a wide variety of fields, some of the strongest needs areas are trusts and estates, professional responsibility, and civil procedure.

Temple has a strong tradition of accessibility and diversity and they encourage applications from women, minorities, and others whose personal characteristics will further their tradition.

Contact: Professor Alice G. Abreu, Chair, Faculty Selection and Recruitment Committee, Temple University Beasley School of Law, 1719 North Broad Street, Philadelphia PA 19122.   E-mail: lawfsc@temple.edu . Fax: 215-204-2008.

The Green Burial Movement

Burials are a tremendous drain on natural resources.  According to Billie Grable, Plotting a Green Burial, MSN Lifestyle:

Each year, cemeteries across the United States bury an estimated 30-plus million board feet of hardwoods, 104,272 tons of steel, 2,700 tons of copper and bronze, and more than 1.6 million tons of reinforced concrete—all used to build the caskets, grave liners and vaults designed to “protect” your loved one from the elements of nature.

Casket manufacturers are listed on the EPA’s top 50 hazardous waste generators list due to chemicals such as methyl and xylene used in the protective finish sprayed on the caskets exterior.

To make burials more environmental friendly, you may wish to consider the following:

• Cremation -- Although generating air pollution and consuming power, cremation is probably more friendly to the environment than burial.
• Burial in eco-cemetery -- Burial in a biodegradable casket allowing the body to decompose naturally and return to nature fertilizing the surrounding landscape.
• No embalming -- Avoid embalming which contrary to popular belief is not legally required.

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

Leona Helmsley Dies

Leona Helmsley, the hotelier and real-estate tycoon, died yesterday (August 20, 2007) at the age of 87 in Greenwich, Connecticut.

She is well-known for a variety of things including a quote attributed to her, albeit perhaps erroneously, that "Only the little people pay taxes."

It will be interesting to see the disposition of her $2.5 billion estate.  She is not survived by a spouse or children but instead only by a brother, four grandchildren, and 12 great-grandchildren.

See AP, Hotelier Leona Helmsley dies at 87, USA Today, Aug. 20, 2007.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing her death to my attention.

Prof. Tate to Visit at Pennsylvania

Joshua Tate (Assistant Professor of Law, Southern Methodist University Dedman School of Law) will serve as a Visiting Assistant Professor at the University of Pennsylvania Law School during the Spring 2008 semester.

Ex-Wife Attempted to Hire Hitman to Kill Ex-Husband -- Court rules Ex-Husband must still pay spousal support

I know this case is a bit off-topic but I could not resist sharing it with you.

Here is what happened:

• Husband and Wife are married.
• Marriage falls apart.
• The spouses enter into a non-modifiable agreement during the divorce proceedings in which Husband agrees to pay monthly spousal support to Wife.
• Divorce finalized.
• Wife attempts to hire assassin to kill Husband.
• Husband discovers the planned "hit."
• Husband asks court to terminate his support obligation.
• Court says Husband agreed that the support would not be changed "regardless of the relative circumstances of the parties" and thus Husband still owes the support despite the fact that if Wife had successfully employed the assassin, Husband's death would have ended his support obligation.

See Richardson v. Richardson, 218 S.W.3d 426 (Mo. 2007).

"Time-Expired" Grave Site

The grave site of Barbara Sue Manire who died in 2005 and is buried in Highland Cemetery in Okemah, Oklahoma, includes the parking meter as shown in the photo showing when she "expired."

Comment Reminder

Do you notice that when you post a Comment, it does not appear?  Do you post it again and again?  Then, after a while, do you notice that it suddenly appears?

This is not aberrant behavior. Instead, it is by design because comments on this blog, as well as all other blogs in the Law Professor Blog Network, are moderated.  This means that a comment will not appear until the blog editor approves the comment.  This requirement is imposed because the blog editor may be held liable for the publication of comments under the theory of publisher liability. Because of publisher liability concerns, the Law Professor Blogs Network does not allow automatic comment publishing.

I do not receive an automatic notice that someone has posted a comment.  I do check on a regular basis but if you want to get you comment posted faster, please send me an e-mail simply stating you have posted a comment.

Back to School

For many of us, today marks the first day of Fall semester.  I hope you had a most enjoyable and productive summer.

As you are probably aware, this blog attempts to serve as a central site to locate and explore comprehensive materials to enhance your teaching of courses that address intestate succession, wills, trusts, estate administration, non-probate assets, planning for disability, and other matters pertaining to estate planning.  A wide range of materials are presented including reference, practical, academic, scholarly, pedestrian, historical, current, etc.

I encourage you to make suggestions and recommendations for materials to be included on this blog.  Unless otherwise requested, I will acknowledge your contribution in my blog entry.

Also, have you recently:

• published a book or article?
• made an interesting presentation?
• received a noteworthy appointment?
• accepted a position at a different school (permanent or visiting)?

If yes, please consider submitting a summary of the book, article, activity, etc. and I will be post it to this blog.  I am sure your colleagues would be interested -- I know I am!!

Best wishes,

Gerry

P.S.  For my non-law professor readers, I also encourage you to submit items which you think may be of interest to blog readers.  Your input and readership are greatly apppreciated.

Intestacy and the Posthumously Conceived Heir

Joseph H. Karlin (J.D. Candidate, Temple University Law School) has recently published his Comment entitled "Daddy, Can You Spare a Dime?": Intestate Heir Rights of Posthumously Conceived Children, 79 Temp. L. Rev. 1317 (2006).

Here is an excerpt from the article's introduction:

This Comment addresses the legal issues concerning the intestate heir rights of posthumously conceived children. Part II of this Comment presents a brief overview of current law in the area of posthumous conception, including recent court decisions, model code provisions, and state intestacy statutes. Part III discusses public policy considerations involved in balancing the rights of posthumous children against other stakeholders regarding inheriting from deceased parents and receiving social security survivor's benefits. Part III also examines how the current state intestacy statutes and the Social Security Act might be interpreted by state and federal courts, and it presents a proposal for legislative action to improve certainty in this area of the law. Finally, Part IV presents a conclusion of the issues raised in this Comment.
   

This Comment proposes that U.S. legislatures and the drafters of model intestacy codes should redraft the current laws in light of the uncertainty created by the holdings of the recent state and federal cases regarding posthumous conception. More specifically, this Comment advises that all state legislatures should pass specific legislation directed at balancing the rights of posthumous children against other stakeholders. Also, this Comment recommends that the drafters of the Uniform Probate Code, Uniform Parentage Act, and Restatement (Third) of Property: Wills and Other Donative Transfers should revise the relevant sections to clarify rights of posthumous children. Finally, this Comment suggests that Congress should clarify the intent of the Social Security Act to address the posthumous conception situation.

Top SSRN Downloads

Here are the top downloads from June 20, 2007 to August 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	233	Taxing Privilege More Effectively: Replacing the Estate Tax with an Inheritance Tax Lily L. Batchelder, New York University School of Law, Date posted to database: June 18, 2007 Last Revised: July 30, 2007
2	175	Erickson: A Primer on FLPS Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: July 21, 2007 Last Revised: July 21, 2007
3	106	Fiduciaries Kenneth M. Rosen, University of Alabama - School of Law, Date posted to database: July 17, 2007 Last Revised: August 13, 2007
4	55	Tax Aspects of Contractual Intimacy: The Estate and Gift Tax Treatment of Powers of Attorney Bridget J. Crawford, Pace University - School of Law, Date posted to database: June 25, 2007 Last Revised: August 15, 2007
5	28	Anna Nicole Smith and the Right to Control Disposition of the Dead James T.R. Jones, Louis D. Brandeis School of Law, Date posted to database: June 28, 2007 Last Revised: August 2, 2007
6	27	Davenport: Res Judicata Applied Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: June 25, 2007 Last Revised: June 25, 2007