Wills, Trusts & Estates Prof Blog

Organ Shortage in the United States and a Way to Reduce It

As an advisor to LifeSharers, I thought you may find the following article noteworthy.

According to David J. Undis, Guest opinion: Why won't UNOS reduce the organ shortage?, tucsoncitizen.com, Dec. 5, 2007:

The waiting list for organ transplants in the United States soon will hit 100,000 people. Most of these people will never receive a transplant. They will die waiting for one.

About 6,000 of them will die waiting this year. This is tragic. It is also unnecessary.

The United Network for Organ Sharing, which manages the national organ allocation system, has the power to implement a simple policy change that would save thousands of lives every year. UNOS identified this policy change 12 years ago, but it has taken no steps to implement it.

What is this life-saving policy change? UNOS should allocate organs first to people who have agreed to donate their own organs when they die. This would cause a dramatic increase in organ donation rates.***

So why hasn't UNOS implemented preferred status for organ donors? We don't know.***

At LifeSharers, we're trying to fill the void left by UNOS' inaction. We've implemented a grass-roots preferred status system.

If you want to donate your organs to other organ donors, and increase your chances of getting a transplant if you ever need one, please join us at www.lifesharers.org. Membership is free and open to all. If you don't have internet access, you can get an enrollment form by calling us toll-free at 1-888-ORGAN88. ***

Technology Allows Mourners to Pay Last Respects Online

The following is from Carolyn Y. Johnson, Internet allows deceased to go beyond the end of the line, S.F. Chron., Dec. 3, 2007, at E3:

When 92-year-old Ruben Edmond died this summer, not everyone could make it to Norfolk, Va., to say goodbye to the man whose family includes five children, 28 grandchildren, 29 great-grandchildren, and five great-great grandchildren.

So while some mourners streamed into the funeral home to pay their last respects, others - from North Carolina to Hawaii - watched streaming video of the ceremony online and visited a tribute page produced by the funeral home that helped organize Edmond’s last rites. ***

[F]orward-thinking funeral homes have embraced online features.

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

A Shocking Story of Suspected Elder Abuse at a Nursing Home

The following is from Scott Glover, A nursing home death, and a shocking phone call, LATimes.com, Dec. 19, 2007:

The day Rita Kittower buried her husband last month, the 83-year-old widow from Tarzana thought she had endured the worst life had to offer.

She had bade a tearful goodbye to her mate of 49 years, who had passed away in an exclusive assisted living facility in Calabasas. "He just stopped breathing," Kittower said she was told by a staff member. ***

Then came the anonymous phone call the day after the funeral.

A woman claiming to be an employee of the nursing home told Rita that her 80-year-old husband's death had been anything but peaceful. She said Elmore Kittower had been beaten to death by someone on the staff. ***

The suspect was arrested shortly after Kittower's death on suspicion of elder abuse, but the case was rejected by the district attorney's office. The suspect has denied any wrongdoing[.] ***

Elder Abuse in the U.S. and Possible Solutions

According to Tracy Breton, Response to elder abuse varies widely across U.S., projo.com, Dec. 16, 2007:

Every year, an estimated 2.1 million older Americans are victims of physical, psychological or other forms of abuse[.] ***

But the nation’s safety net for seniors is not nearly as good as it is for children.

A survey of all 50 states conducted by The Providence Journal over the past several months shows that even though most states have mandatory reporting laws for elder abuse, fewer than half of them have statewide, 24-hour-a-day hot lines to record complaints and offer immediate response. ***

If the Elder Justice Act — introduced in the U.S. Senate nearly six years ago — ever passes, it would provide hundreds of millions more in federal financing for adult protective services to the states — money to detect, investigate, prevent, prosecute and study elder abuse and to train more people who interact with victims.

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.

Offshore Trust CLE

The American Bar Association Section of Real Property, Trust and Estate Law and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast on January 15, 2008 entitled Transformation and Transparency: The Current State of the Offshore Trust.

Here is a description of the program:

The use of offshore trusts has risen dramatically in the last few years.  Several offshore jurisdictions go out of their way to make themselves more attractive to outside investors, and many investors see offshore trusts as a safety net.  But is the grass really greener on the other side? This teleconference and live audio webcast will examine the confluence of global events and the use of offshore trusts, including:

• How offshore trusts work
• Asset protection
• Reporting requirements and penalties
• U.S. attitude toward offshore trusts
• Non-U.S. perspective on offshore trusts
• Use for clients in civil law jurisdictions

Is the Bollea (Hulk Hogan) divorce a strategic move to shield assets?

Earlier on this blog, I discussed the issues surrounding guardianship arrangements for John Graziano. Graziano was severely injured in a car accident with Terry Bollea’s son, Nick Bollea, at the wheel and is now fully incapacitated.

While the attorneys for John Graziano’s parents reached an agreement giving Debra Graziano guardianship over her son, new developments on this case center on Terry Bollea’s controversial divorce in light of the pending law suit.

Tamara El-Khoury, Lawyer: Is Bollea divorce a ruse?, sptimes.com, Nov. 27, 2007 reports that:

The divorce petition seeks a split of the couple's assets, including a Belleair mansion and Clearwater Beach home with combined assessed values topping $7.9-million. ***

[A] divorce could be one step the Bolleas could take to try to protect assets. That's because it could cut Terry Bollea's assets in half, [Kimberley Kohn] said.  ***

Hall of Fame Assistance Trust to Be Dissolved

According to Richard Willing, Ditka to dissolve fund after critical report, usatoday.com, Dec. 11, 2007:

Football Hall of Famer Mike Ditka said Tuesday that he will dissolve a charity that collected $1.3 million in its first three years and gave only $57,000 to needy ex-players.

Ditka's Hall of Fame Assistance Trust *** spent the bulk of its money — more than $715,000 — staging three golf tournaments from 2004 to 2006 to aid the charity. In 2005, the trust paid $65,000 in appearance fees to get former stars to play in the tournament. That was $8,000 more than the charity paid indigent players in its first three years.***

"There is nobody who has received one penny to administrate the trust," Ditka said. "The guys have done it all on their own." ***

But separate charities maintained by the union and the league gave away an average of $1.1 million a year from 2000 to 2005, USA TODAY reported. Because funds available exceeded the number of potential recipients, that figure includes $220,000 a year donated to youth groups and scholarships.

Alternative Minimum Tax Update

Earlier on this blog, I discussed legislation that had passed the House regarding the alternative mininum tax.

Yesterday (December 19, 2007), Congress approved AMT relief legislation and President Bush has indicated that he will sign the bill.

The following excerpts are from David M. Herszenhorn, Congress Averts Higher Tax Bill for Middle Class, NY Times, Dec. 20, 2007:

The tax reprieve postpones for one year only an expansion of the alternative minimum tax, a parallel tax system enacted in 1969 to prevent very wealthy investors from using deductions and tax shelters to avoid paying income tax altogether. The alternative tax has ensnared a growing number of middle-class Americans in recent years because the 1969 law was not indexed to inflation.

Without the fix by Congress, some 25 million filers would have had to pay the tax on their 2007 income, up from four million who paid it on 2006 income, according to the White House.* * *

The measure would increase slightly the amount of income that is exempt from the alternative tax. For individuals, that means the exempt amount increases to $44,350 in 2007 from $42,500 in 2006. For married couples, the exemption amount climbs to $66,250 from $62,550.

Passing of Prof. Neill Alford, Jr.

I have just learned that noted trusts and estates professor Neill Alford, Jr. died in Charlottesville, Virginia on October 20, 2007.
   

Here are some excerpts from his obituary:

He was a distinguished legal scholar and teacher, a loving husband, an imaginative father, a devoted grandfather, and a thoughtful son and son-in-law. He will be remembered for his integrity, unpretentious manner, keen mind, kindness and generosity, adventurous spirit, and good sense of humor. * * *
   

He joined the University of Virginia law faculty in the fall of 1947 and spent most of his career at Virginia, teaching there from 1947 to 1974 and from 1976 until his retirement in 1990. He was Doherty Foundation professor of law from 1966 to 1974 and Percy Brown Jr. professor of law from 1976 to 1990.

He was a gifted teacher whose lively law lectures were remembered vividly years later by former students. He taught courses including trusts and estates, international law, professional responsibility (ethics), legal history, tax law and insurance law. * * *

From 1974 to 1976, he was dean of the law school and Joseph Henry Lumpkin professor of law at the University of Georgia.

Is talking with person after death possible?

The following is an excerpt from a deposition regarding defective construction of a high-rise condominium tower as reported in Jerry Buchmeyer, et cetera, 70 Tex. B.J. 561 (2007):

Q. (By Mr. Smith) Okay. Do you know when Mr. Reynolds passed away?

A. Not exactly, no.

Q. Okay. It was after — after you had talked to him?

A. Oh, yes.

MR. SMITH: Alright. Obviously …

Attorney, serving as trustee, suspended from practice of law

A Texas lawyer received a one-year, fully probated suspension from the practice of law because of his misconduct while serving as a trustee.

Here is a description of his conduct as reported in Disciplinary Actions, 70 Tex. B.J. 544, 545 (2007):

A panel of the District 14-B Grievance Committee found that in March 2004, the complainant filed suit seeking an accounting in connection with certain trusts for which [attorney] was serving as trustee. In June 2004, a default judgment was entered in favor of the complainant, and [attorney] was ordered to provide the complainant’s attorney with a full and complete accounting of all financial transactions relating to the trusts on or before July 14, 2004. [Attorney] failed to obey the order.

[Attorney] violated Rule 3.04(d).  He was ordered to pay $302.62 in costs.

Bigelow Analyzed

Prof. Wendy Gerzog (Professor of Law, University of Baltimore School of Law) has recently posted her article on SSRN entitled Bigelow: The Ninth Circuit on FLPs.  The article also appears in Tax Notes, Vol. 117, No. 12, 2007.

Here is the abstract of her article:

The article discusses the Ninth Circuit's recent Bigelow case. The issues on appeal were: 1) whether the Tax Court erred in its finding that there was an implied agreement of income retention from the property the decedent transferred to her FLP, and 2) whether the Tax Court erred in its holding that the transfer did not constitute a bona fide sale for adequate and full consideration, exempting it from section 2036.

Anna Nicole Smith Update

According to Jay MacDonald , You can accidentally disinherit your heirs, biz.yahoo.com, Dec. 4, 2007, Anna Nicole Smith may have accidentally disinherited her daughter, Dannielynn, by failing to update her will:

Although children have no legal right to inheritance throughout most of the United States, many states do provide protection against accidental disinheritance. Because she was born after the execution of Anna Nicole's will, Dannielynn will likely be considered a pretermitted child that was accidentally disinherited, and thus will likely inherit the bulk of Anna Nicole's estate.

[Note, however, that the express disinheritance provision in her will may prevent Dannielynn from taking via intestate succession.  See the prior discussion on this blog.

Here are the 7 ways to disinherit your kids which Mr. MacDonald discusses:

1. Failure to update a will
2. Faulty will
3. Stepparent succession
4. Ademption
5. Misunderstanding survivorship
6. Mirror-image grant
7. Failure to prepare a will

ABA Spring Symposia

The ABA Section of Real Property, Trust and Estate Law has announced that it will hold its 19th Annual Spring Symposia on May 1-2, 2008 at the Park Hyatt & The Fairmont in Washington, DC.

Using Technology for Charitable Purposes

According to Stephanie Strom, Foundation Testing Potential of Philanthropy via Internet, NYTimes.com, Dec. 13, 2007:

The Case Foundation is embarking on an effort to test the potential of citizen-led philanthropy via the Internet.
   

Starting at 3 p.m. on Thursday, readers of Parade magazine and members of the Causes section of the Facebook Web site can enter a contest to win a total of $500,000 and $250,000, for their favorite charities, provided by Case. ***
   

The foundation has also put money into developing ThinkMTV.com, a networking site aimed at increasing youth activism. And on its own site, casefoundation.org, it offers holiday gift ideas with charitable components, as well as links to the Causes and Parade sites. ***
   

Proponents say the Internet has been useful in attracting people to sign petitions and attend rallies and demonstrations, if not in generating big donations.***

Life Insurance CLE

The American Bar Association Section of Real Property, Trust and Estate Law, Young Lawyers Division and the ABA Center for Continuing Legal Education are sponsoring a teleconference and live audio webcast entitled The Basics of Life Insurance Planning on January 10, 2008.

Here is a description of the program:

This program will examine the use of life insurance in estate planning and provide strategies for maximizing its effectiveness. Topics to be discussed include types of insurance, ownership of insurance, and use of life insurance trusts.

2008 Changes Affecting Special Needs Trusts CLE

The University of Texas School of Law and the Wealth Management and Trust Division of the Texas Bankers Association are presenting a CLE entitled 2008 Changes and Trends Affecting Special Needs Trusts on January 31 and February 1, 2008.

Course topics will include:

• Special Needs Trust Overview 
• Protecting and Maximizing Public Benefits 
• Estate Planning For The Incapacitated Family Member
• Court-Created Trusts Including the 142 Trust Statute
• The Changing Face of the Traditional Special Needs Trust 
• Amending the Special Needs Trust
• Advising Trustees on Trust Distributions in Desperate Circumstances: When Every Call is an Emergency
• Sustainable Home Care Plan:  Is it an Oxymoron?
• Housing, Housing, Housing: Ownership, Occupancy, Maintenance and Expansion

Estate Planning for Pets Featured in Wall Street Journal

In Good Boy, Wall St. J., Dec. 17, 2007, at R6, Rachel Emma Silverman discusses the fundamentals of planning for the care of a person's pet animals upon disability and after death.

Here are a few excerpts from the article:

Lawyers say they are increasingly creating pet plans for their clients, as more pet owners want to make sure their animals are cared for after the owners are no longer able to do so themselves. * * *

A pet trust * * * allows you to set out specific funds for your pet's care, name a caregiver who handles the pet's care, and a trustee who manages the funds and makes sure the pet is taken care of. (Naming different people as caregiver and trustee allows for checks and balances.) Provisions in a trust are generally enforceable by a court. When the pet dies, money in the trust goes to end beneficiaries, typically a family member, friend or charity. Make sure to name alternate caregivers and trustees in case your first choices can't, or won't, serve in the role. * * *

Lawyers also recommend setting up power-of-attorney documents that specifically allow your appointed agent to make financial decisions regarding your pet if you become incapacitated.

For additional information on estate planning for pet owners, see Estate Planning for Non-Human Family Members.

Elder Law and Guardianship CLEs

The State Bar of Texas is sponsoring the following seminars in Dallas at the Cityplace Conference Center:

• Advanced Elder Law Course 2008
  March 6, 2008
     
• Advanced Guardianship Course 2008
  March 7, 2008

Course highlights include:

• Expert Panels Discuss Public Benefits and Finance Issues
• Seven Strategies to Stay at Home Longer
• Attorney Ad Litem Certification
• Examining the Medical Expert Witness in a Guardianship Case
• ABA Enhancing Capacity Guidelines

Top SSRN Downloads

Here are the top downloads from October 17, 2007 to December 16, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	284	Federal Tax Update: Important Developments in Federal Income, Estate & Gift Taxation Affecting Individuals - August, 2006 to August, 2007 Samuel A. Donaldson, University of Washington - School of Law, Date posted to database: October 19, 2007 Last Revised: October 19, 2007
2	87	Introducing the Law of Nonprofit Organizations and Philanthropy David A. Brennen, University of Georgia School of Law, Date posted to database: October 3, 2007 Last Revised: November 27, 2007
3	87	The Trustee's Duty to Inform Thomas P. Gallanis, University of Minnesota Law School, Date posted to database: October 10, 2007 Last Revised: October 17, 2007
4	79	The Fiduciary Accountability of Ordinary Employees Robert Flannigan, University of Saskatchewan, Date posted to database: October 15, 2007 Last Revised: October 15, 2007
5	74	The Section 67 Question: Are Fees for Investment Advice Fully or Partially Deductible by Trusts? James Loebl, Valparaiso University - School of Law, Date posted to database: October 16, 2007 Last Revised: November 6, 2007
6	61	Dealing with Postdeath Events Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: November 8, 2007 Last Revised: November 8, 2007
7	55	Shrinking Boomer Social Security Retirement Benefits Francine J. Lipman, Chapman University - School of Law, Date posted to database: November 16, 2007 Last Revised: November 21, 2007
8	53	Valuing Art in an Estate Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: November 8, 2007 Last Revised: November 8, 2007
9	42	Taxation of the New Era 'Family Unit' Lester B. Snyder, University of San Diego School of Law, Date posted to database: November 9, 2007 Last Revised: November 13, 2007
10	33	An Attempt to Legislate? Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: October 3, 2007 Last Revised: October 26, 2007