Wills, Trusts & Estates Prof Blog

Star Trek Urns and Caskets

"Death, the final frontier."

For the Trekkies among us, you may wish to consider a Star Trek urn pictured here or a Star Trek casket which will be available soon from Eternal Image.

Or, if you prefer burial, you may wish to consider the Star Trek casket inspired by the popular “Photon Torpedo” design seen in Star Trek II: The Wrath of Kahn.

Eternal Image also carries other urns and caskets "that celebrate the passions of life" including:

• The Vatican Library Collection
• The Precious Moments Collection
• The Major League Baseball Collection
• The American Kennell Club Collection
• The Cat Fanciers' Association Collection

Trust and Estate Resources Online

The American College of Trust and Estate Counsel (ACTEC) is now offering a useful Trust and Estate planning resource called the Tool Box.

Here is ACTEC’s description of this helpful resource:

The ACTEC Tool Box is a selected list of Web based resources and practice tools related to the field of trust and estate law. These resources are grouped initially according the type of source material[:]

• Primary Law and Government Sources
• Factual Research Resources
• Trust & Estates legal & practice materials
• Using The Internet For General Legal Research
• Technology in the Practice
• Trusts & Estates Blogs - not ACTEC created

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

You can read more about this topic on Neil's blog at PA Elder, Estate & Fiduciary Law Blog.

Are you happy as a law professor??

Prof. Paul Caron of the Tax Prof Blog reports that law professors are unhappy with their jobs.  See Why Are Law Professors So Unhappy? -- Part Two, Dec. 28, 2007.

In my opinion (and do you really care?), if a person is unhappy in his/her job, he/she should leave!  There are mass quantities of lawyers anxious to join the academic ranks as demonstrated by the huge number of resumes in the AALS Faculty Register.

Also, in my humble opinion, being a law professor is one of the absolute best jobs in the world.  Other than being on perpetual vacation (which is not a bad idea), being a law professor is one of the most enjoyable, fun, rewarding, and challenging positions imaginable.  About the only "down" side is grading hundreds of exams but since that occupies only a de minimus amount of time per year, it is not really worth worrying about it.  (Being a rock star, of course, also sounds pretty good!)

And then, teaching in the wills, probate, trusts, and property areas just makes things even better!!

About Altruism

The Le Van Company has recently posted on its website an article entitled Notes on Social Intelligence, discussing among other things the notion of altruism.

According to this article:

• Altruism is emotionally contagious: when we see an act of kindness, it typically stirs in us the impulse to perform one, too.***
• Altruism is a stronger impulse than our built-in bias for anger, jealousy, selfishness and envy. To feel with urges us to act for.***
• Social intelligence, according to Goleman, is a combination of social awareness and social facility.

Employee Benefits and the IRS

In Executives and Others Face Tough Tax Liability Unless Deferred Compensation Arrangements Are Timely Updated For New Internal Revenue Code Section 409A Compliance, IRS and Department Of Labor Issue Automatic Enrollment and Investment Guidance, and Agencies Release 2007 Form 5500 Annual Report, RPPT eREPORT (2007), Cynthia Marcotte Stamer (Attorney at Law, Cynthia Marcotte Stamer, P.C., Glast, Phillips & Murray P.C.) "provides updates on three very timely and important issues facing Employee Benefits attorneys and their clients today."

Advanced Estate Planning Strategies Course

The State Bar of Texas is sponsoring the 14th Annual Advanced Estate Planning Strategies Course on April 3-4, 2008 in Santa Fe, New Mexico.

The program will feature expert panel discussions on the following topics:

• Between the Deaths: Planning and Administrative Challenges
• Client Management Issues
• Income Tax Nuggets: Pre and Post Death
• Defective Grantor Trusts
• Multi-Jurisdictional Issues

Same-Sex Unions Now Legal in New Hampshire

As reported earlier on this blog, on May 31, 2007, New Hampshire Governor John Lynch signed legislation authorizing civil unions for same-sex couples starting in January 2008.

The following update is from Beverley Wang, Dozens of gay couples get civil unions at N.H. Statehouse, Boston.com, Jan. 1, 2008:

Dozens of gay and lesbian couples celebrated the arrival of civil unions in New Hampshire in the early moments of New Year's Day Tuesday, bundling up against below-freezing temperatures for a group ceremony as soon as the unions became legal after midnight.

Organizers said they checked in 37 couples for the outdoor ceremony on the plaza of the New Hampshire Statehouse -- the building where the law was voted in and signed in 2007. * * *

New Hampshire's civil unions law -- voted in by the Democrat-dominated Legislature early last year and signed by Democratic Gov. John Lynch in May, gives same sex couples the same rights, responsibilities and obligations of marriage in everything but name. New Hampshire is the fourth state in the nation to allow civil unions and the first to do so without a court decision or the threat of one. * * *

New Hampshire follows Vermont, Connecticut and New Jersey in allowing civil unions. Massachusetts is the only state that allows marriage. New Hampshire record keepers estimate as many as 3,500 to 4,000 civil unions will be performed this first year.

Inheritance by Non-Marital Children

Browne Lewis (Visiting Professor, University of Pittsburgh School of Law) has recently published her article entitled Children of Men: Balancing the Inheritance Rights of Marital and Non-Marital Children, 39 U. Tol. L. Rev. 1 (2007).

Here the conclusion to her article:

In the current climate in the United States, marriage is not a requirement for procreation. A woman has various reproductive options. She can have a child from a non-marital sexual relationship or through the use of artificial insemination. Thus, the number of children being born out of wedlock has increased. Historically, non-marital children were not permitted to inherit from their fathers. The U.S. Supreme Court and various state legislatures have taken actions to expand the inheritance rights of non-marital children. Unfortunately, those procedures are complicated and require non-marital children to depend upon the affirmative actions of their parents. The UPA introduces a system that allows non-marital children to inherit from their fathers on mostly equal terms with marital children, but further improvements are needed to fairly treat non-marital children for inheritance purposes. My proposed system gives the probate court flexibility to balance the interests of the state, non-marital children, and marital children. This system addresses the proper inclusion of non-marital children in intestacy statutes, but would need to be uniformly adopted by the states to accommodate family mobility and promote fairness among the states.

Famous Quotes from Famous People

In Echoes of 2007, Est. Analyst (Jan. 2008), Robert L. Moshman is quoting some of the recently deceased celebrities:

“We don’t pay taxes. Only the little people pay taxes.” —Attributed to Leona Helmsley by her housekeeper. This quote was denied by Mrs. Helmsley, but it came to represent her attitude and the “greed is good ethic of the 1980s.***
 

“I am a Ford, not a Lincoln. My addresses will never be as eloquent as Mr. Lincoln’s. But I will do my very best to equal his brevity and his plain speaking.” —President Gerald R. Ford, died December 26, 2006.
 

“You can make a throne of bayonets, but you can’t sit on it for long.” —Boris Yeltsin (1931 - 2007).***
 

“I’ve always tried to go a step past wherever people expected me to end up.” —Beverly Sills
 

“It’s not what you gather in life, but what you scatter in life that tells the kind of life you’ve lived and the kind of person you are.” —Helen Walton, wife of Wal-Mart founder Sam Walton, died in 2007 at age of 87.***

Lack of Portability of the Estate Tax Exemption and Possible Solution

Mitchell M. Gans (Steven A. Horowitz Distinguished Professor of Tax Law, Hofstra University School of Law), Jonathan G. Blattmachr (Attorney at Law, Milbank, Tweed, Hadley & McCloy LLP)  and Austin Bramwell (Attorney at Law, Milbank, Tweed, Hadley & McCloy LLP), have recently published their article entitled Estate Tax Exemption Portability: What Should the IRS Do? And What Should Planners Do in the Interim?, 42 Real Prop. Prob. & Tr. J. 413 (2007).

Here is the editors' synopsis of their article:

This Article addresses the problem of the lack of portability of the estate tax exemption: if one spouse dies without using the exemption, it is lost, and the surviving spouse cannot retain it for later use. The authors trace the Internal Revenue Service’s response to this problem through four private letter rulings and conclude that the analysis used in the rulings is problematic because it could undermine enforcement of the Internal Revenue Code in other contexts. Instead, the authors propose a new approach to resolving the portability problem and recommend that it be implemented administratively so that taxpayers may employ it safely.

Circular 230 CLE

The National Constitution Center is sponsoring a live audio conference on January 16, 2008 entitled New Circular 230 Final Regulations: Keeping Up With the Changes.

Here is a description of the program:

The New Final Regulations for Circular 230 have arrived and Tax Practitioners are more at risk than ever before. Circular 230 applies to virtually all written tax advice: violating the new regulations results in severe financial penalties, disbarment or suspension of practice. Join us for a 60-minute audio conference where you and your colleagues will discover:

• What the New Final Regulations mean for your practice
• New requirements for tax opinions: What’s legal? What’s not?
• Procedures to ensure compliance with Circular 230
• Inquiries & the IRS Office of Professional Responsibility: How best to respond 
• New IRS Guidance on monetary penalties against practitioners and their firms for violating Circular 230 
• Best Practices for tax advisors: What you can and can’t do
• New standards for Tax Return Preparer Penalties: What to know now 

Taxes in 2008

In Tax Thresholds for 2008, Est. Analyst (Jan. 2008), Robert L. Moshman covers some estate-planning related tax facts for 2008:

TOP ESTATE TAX RATE: * * * the estate tax was repealed in 2001 but we are in the seventh year of an eight-year phase-out. The top estate tax rate remains at 45% this year and through 2009 and applies to estate assets in excess of $1.5 million.

ESTATE TAX EXEMPTION: We remain at $2-million estate tax exemption for 2008, the third and final year at that level before increasing to $3.5 million in 2009. This could be modified by new tax legislation during 2008, of course. * * *

GENERATION-SKIPPING TRANSFER TAX: Also unchanged. Both the tax rate and exemption for estates continue to apply to the GST tax, i.e., 45% and $2 million.***

STATE DEATH TAX: The state death tax credit had been phased out. State death taxes are treated as a deduction. The number of states with some form of death taxes (24) seems to have stabilized. Some of these states have “decoupled” from the Federal approach.

An Argument for Adopting the Harmless Error Rule for Non-Compliant Wills

Stephanie Lester (J.D. Candidate 2008, New York University School of Law) has recently published her article entitled Admitting Defective Wills to Probate, Twenty Years Later: New Evidence for the Adoption of the Harmless Error Rule, 42 Real Prop. Prob. & Tr. J. 577 (2007).

Here is the editors' synopsis of her article:

This article examines how strict adherence to Wills Act formalities can frustrate testator intent and lead to ad hoc judicial results when more lenient judges attempt to effectuate such intent despite noncompliance with these formalities. In advocating that United States jurisdictions should embrace the harmless error rule as an effective reform in the area of noncompliance with Wills Act formalities, the author re-examines Professor John Langbein’s 1987 Australian research on the effectiveness of the application of this doctrine. The author has performed empirical research in the Australian court systems to update the literature from Langbein’s earlier study and to examine how the application of the harmless error rule has fared in Australia over the last 20 years. After reviewing the relatively few instances of use of the harmless error rule in the United States, the author concludes that based on the success of the Australian model, United States jurisdictions should fully adopt this doctrine in the probate of noncompliant wills. 

More on Ken Kemper's Pet Trust

Earlier on this blog, I reported on three dogs, Buckshot, Katie, and Obu-Jet, that are benefiting from the estate of their deceased owner, Ken Kemper, worth approximately $800,000 ($400,000 in cash and a house in Hagerstown, Maryland).

CNN has posted a great video of an interview with the dogs' caregiver, Roy Grady, which includes views of the house and the dogs.  See Dogs live the high life, CNN.com, Jan. 1, 2008.

It is also interesting to note that, as Robert C. Young (Stewart, Plant & Blumenthal, LLC, Baltimore, Maryland) pointed out to me, Maryland is one of the few states that still does not have statutory pet trust legislation.  Accordingly, I would assume Mr. Kemper used a "traditional pet trust" which may be used in all states.

For more information about pet trusts and related matters, see Estate Planning for Pet Owners.

Another James Brown Update

Earlier on this blog, I brought you up-to-date with recent developments in the ongoing dispute over James Brown's estate.

Here is some additional information from AP, James Brown recordings locked in dispute, Yahoo! News, Jan. 1, 2008:

The legal feud over the estate of James Brown is stalling the release of the soul legend's final recordings, his longtime adviser said.

Brown cut an album in Los Angeles the summer before he died in December 2006, but the songs are not being released because of courtroom disputes about who should benefit from his legacy and music royalties, said attorney Buddy Dallas. There are also between 50 and 60 other previously recorded songs in vaults, Dallas said.

Brown's fourth son, Daryl, is one of five heirs trying to have their father's will voided because they say his former advisers — including Dallas — used undue influence to get the singer to create charitable trusts from which the advisers would profit. * * *

Dallas quit as an estate trustee in November but now is trying to retract his resignation.

Daryl * * * says he is not aware of any recordings done in California in 2006. * * *

But he said there are dozens of unreleased songs stored in vaults and on master tapes at Brown's Beech Island, S.C., estate.

Special thanks to Jeffrey A. Cooper (Associate Professor of Law, Quinnipiac University School of Law) for bringing this article to my attention.

Happy New Year!

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 for 2008,

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!!

2008 Arrives

Ken Kemper's dogs benefit from his will

Three dogs, Buckshot, Katie, and Obu-Jet, are benefiting from the estate of their deceased owner, Ken Kemper, worth approximately $800,000 ($400,000 in cash and a house in Hagerstown, Maryland).

The dogs live in the house with their caregiver, Roy Grady.  The dogs receive excellent care including once a week spaghetti dinners and top-notch veterinarian care.

The executor of Ken's estate is his Karin Anderson and she says that after the dogs die, she will donate the rest of Ken's property to an animal charity.

See AP, 3 Md. dogs enjoy $800,000 inheritance, Yahoo! News, Dec. 29, 2007.

Special thanks to Jeffrey A. Cooper (Associate Professor of Law, Quinnipiac University School of Law) for bringing this article to my attention.

For more information about pet trusts and related matters, see Estate Planning for Pet Owners.

Hugh Massingberd, aka Massivesnob, Dies

On December 25, 2007 at the age of 60, Hugh Massingberd, one of the world's greatest obituary writers, died of cancer.

Here is an excerpt from his obituary as provided in The Times, Dec. 27, 2007:

To outward appearance there was no stouter opponent of the classless society than Hugh Massingberd. Nicknamed “Massivesnob” by Private Eye, he edited for 15 years from the late 1960s such monuments to the feudal system as Burke’s Landed Gentry, Burke’s Royal Families of the World and Burke’s Peerage, Baronetage and Knightage. Then, as obituaries editor of The Daily Telegraph from 1986 to 1994 he gave prominent coverage to the lives of fainéant aristocrats and blimpish military men.

Yet though his fogeyish reverence for English tradition, and those families who had moulded it, was genuine, his was not an uncritical eye. While at Burke’s publications, he had enlivened what were customarily rather moribund and respectful tomes with a piquant seasoning of anecdote gathered from centuries of lordly eccentricity and dissipation. * * *

It has somehow become accepted wisdom that those obituaries printed during Massingberd’s subsequent eight-year tenure revolutionised the genre. This is to overstate the case. Certainly they were more lively, and often more caustic, than had been the case in the Telegraph of old. * * *

Where he differed from other obituary writers was in the latitude he was given to indulge his novelistic delight in the foibles of the human condition — sometimes to the point of self-parody, often to the frustration of Hastings — and in the almost inexhaustible fund of knowledge he had accumulated over the years about the antecedents and proclivities of the nobility and squirearchy (as well as those of minor showbusiness personalities), which he was now able to display to advantage.

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

Top SSRN Downloads

Here are the top downloads from November 1, 2007 to December 31, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	340	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	96	The Fiduciary Accountability of Ordinary Employees Robert Flannigan, University of Saskatchewan, Date posted to database: October 15, 2007 Last Revised: December 19, 2007
3	74	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
4	68	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
5	61	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
6	48	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
7	32	Conservation Easements: Perpetuity and Beyond Nancy A. McLaughlin, University of Utah - S.J. Quinney College of Law, Date posted to database: December 12, 2007 Last Revised: December 12, 2007

James Brown Update

The saga surrounding the estate of James Brown, who died last year on Christmas Day, continues.

The following is from AP, James Brown's Children Challenge Will, Dec. 30, 2007:

Five of James Brown's children say their late father's will should be invalidated because his former advisers used undue influence to get him to create charitable trusts that the advisers would profit from, according to court documents filed this week.

The children were largely left out of the financial portion of the will, which leaves the bulk of the soul singer's money to trusts set up to educate Brown's grandchildren and needy kids.

Atlanta attorney Louis Levenson said the children discovered earlier wills drafted by their father that cast doubt on whether he truly wanted to leave his estate to charity.

"There was sporadic indication that Mr. Brown intended to benefit some charities, but the circumstances surrounding the making of these documents have always been clouded in mystery," Levenson said.

Five Brown children are challenging the will in Aiken County Probate Court. They claim Brown's longtime advisers Buddy Dallas, Alford Bradley and David Cannon convinced the soul singer to create the trusts so the advisers would profit from managing the two charities after Brown died.

Dallas denied the allegations and called attempts to void the will "an act of desperation."

"No one told James Brown what to do," Dallas said, adding that if he were going to use his influence to benefit himself, "I would have just influenced him into giving me something."

Special thanks to Neda Jahansouz and Sara Hudman (J.D. Candidates, Texas Tech University School of Law) for bringing this article to my attention.

Kindness Pays Off for Luby's Waitress

Walter "Buck" Swords died in July 2007 at 89 years of age.  The terms of his will were recently released and Melina Salazar, a Luby's waitress, learned that she is the recipient of a $50,000 bequest and a 2000 Buick automobile.

For approximately seven years, Melina had regularly waited on Buck at a Harlingen, Texas Luby's cafeteria.  Melina "did her best to put on a smile and tend to the every need of her most loyal and cantankerous customer" even though he was, in her words, "kind of mean." 

Melina says she made certain his food was hot and smiled even though Buck made demands upon her and even swore at her.

It does seem, however, that Buck certainly did appreciated Melina's kindness.

See AP, Man leaves $50,000, car to waitress, Dec. 28, 2007.

Special thanks to Sara Hudman, Melanie Casner, and Rickie Cayton (J.D. Candidates, Texas Tech University School of Law) as well Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this story to my attention.