Wills, Trusts & Estates Prof Blog

Twins, Unaware of Relationship, Marry in England

Earlier on this blog, I reported on the proposal to develop a registry of reproductive material donors.  Another reason for such a registry, is to prevent brothers and sisters from marrying each other before they realize their biological relationship.

The problem is also a concern in adoption situations.  As recently reported in Unknowing twins marry each other, CNN.com, Jan. 11, 2008, two British twins who were separated at birth, grew up apart, fell in love, and married.  It was not until later that they discovered they were related and the marriage annulled.  The article does not reveal how long they were together before discovering the truth.

Investment Adviser and Broker-dealer Industry Practices Report

According to SEC Publishes Text of RAND Report on Investment Adviser, Broker-Dealer Industries, 2008-1, Jan. 3, 2008:

The Securities and Exchange Commission has received and posted on its Web site the text of the RAND Corporation's final report on practices in the investment adviser and broker-dealer industries.

"The Commission has been anxious to receive RAND's study of the investment adviser and broker-dealer industries, and the nature of their relationships with customers. The report will assist the Commission's efforts to update our regulations to improve investor protections in today's new marketplace[.]"***

Following a March 2007 Court of Appeals decision that overturned a 2005 SEC rule permitting non-adviser broker-dealers to charge fees to investors based on account size, the SEC and RAND agreed that RAND would deliver its final, peer-reviewed report in pre-publication format on Dec. 31, 2007, three months earlier than the contract had originally required.***

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.

How boomer retirement plans may affect their children’s inheritances

The following is from Marshall Eckblad, Well-off Baby Boomers are likely to spend their kids’ inheritance, San Francisco Chron., Dec. 9, 2007, at E1:

The affluent Boomer crowd typically has plans for a fully funded dream retirement that lasts two decades or more. Having bankrolled kids through years of education and early adulthood, these Boomers feel less than obligated to pass along to their children much of their hard-earned wealth.

For those clients who do want to leave a sizable inheritance, financial advisers may need to lay out for them the difficulty of living an active and exciting retirement and also leaving wealth to their children.***

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

Should Composing and Printing a Will Take Less than Five Minutes?

According to David Beckman and David Hirsch (both in the firm of Beckman & Hirsch in Burlington, Iowa), a lawyer should be able to "[c]ompose and print out a simple will" in less than five minutes.  Only in that manner may the firm score a "1" in their test of digital tasks to ascertain the efficiency of a law office.  A score of "2" is awarded if it takes five minutes to one hour to prepare the simple will and the worst score, a "3," is given if it takes more than one hour.

See David Beckman & David Hirsch, Testing Your Tech, ABA J., Oct. 2007, 58, at 59.

I seriously query whether proper deliberation of the client's intent and the myriad of contingencies that must be considered when preparing a will could adequately be addressed in five minutes or less.

Financial Abuse of the Elderly

Suzanne E. Luna, (Attorney at Law, Law Office of Suzanne E. Luna, PC) has recently published her article entitled Financial Crimes Against the Elderly, Prob. & Prop., Jan./Feb. 2008, at 35.

Here is an excerpt from her article:

Financial exploitation of the elderly is rampant. Although many agencies and private caregivers are reputable and honest, a cottage industry has cropped up as the need to care for the elderly has increased at a staggering pace. The barriers to entry into this field are insignificant – a couple of sets of scrubs to look official, white nursing shoes, and a cell phone. Most nonmedical caregivers or “sitters” who help around the house with cleaning and meals do not make that much money per hour working for an agency, so there is a huge incentive for the entrepreneurial-minded among them to set up their own shops through which they can keep double the hourly rate without paying for such agency overhead as taxes and insurance. Many are legally unsophisticated, so taxes and insurance are not even considered necessary!

Judging Capacity of Older Adults in Guardianship Proceedings

Edie L. Greene (Professor of Psychology, University of Colorado at Colorado Springs) has recently published her article entitled Deciding to Let Others Decide; Judging the Need for Guardianship and Conservatorship, Prob. & Prop., Jan./Feb. 2008, at 47.

Here is the conclusion to her article:

All adults are presumed to possess capacity unless adjudicated otherwise in guardianship or conservatorship proceedings. This decision is ultimately a judicial one, though judges get significant input at these hearings from other professionals involved in the lives of older adults. Although all states have modified their guardianship statutes in recent years to define more precisely the bases for judgments of capacity and to include more specific and functional standards that emphasize a respondent’s ability to manage the tasks of daily living, differences linger among legal professionals in their judgments of older adults’ capacity and ability to care for themselves. Awareness of this situation can and should lead to increased dialogue among professionals about their common interest in protecting both the autonomy and the safety of older adults.

New Edition of "Questions & Answers: Wills, Trusts & Estates" Published

LexisNexis has recently released the Second Edition of the Wills, Trusts & Estates volume of its Questions & Answers series authored by Thomas M. Featherston, Jr. (Mills Cox Professor of Law, Baylor Law School) and Michael Hatfield (Professor of Law, Texas Tech University School of Law).

Here is the publisher's description of the book:

Understand better what you're learning in Wills, Trusts and Estates class and prepare effectively for exams by applying concepts as you learn them. This study guide includes 290 multiple-choice and short-answer questions arranged topically for ease of use during the semester, plus an additional set of 19 questions comprising a comprehensive "practice exam."

For each multiple-choice question, [the authors provide] a detailed answer that indicates which of four options is the best answer and explains thoroughly why that option is better than the other three options. Each short-answer question is designed to be answered in fifteen minutes or less. For these questions, [the authors provide] a thoughtful, comprehensive, yet brief model answer.

Try some sample questions from Q&A: Wills, Trusts and Estates.

Estate Planning with the IRS in Mind

John W. Porter (Attorney at Law, Baker Botts LLP), Stephanie Loomis-Price (Attorney at Law, Baker Botts LLP), and Charles E. Hodges II (Attorney at Law, Chamberlain, Hrdlicka, White, Williams & Martin), have recently published their article entitled Anticipating the Audit Call, Prob. & Prop., Jan./Feb. 2008, at 20.

Here is the conclusion to their article:

In sum, there are numerous protections of communications among advisors and between advisors and their clients. To best protect those communications from discovery or, if produced, from misinterpretation, it is important to understand the differences among those protections and to ensure that the communications are documented in the context of the broader goals of the client, such that both tax and nontax reasons for the transaction are clearly indicated. Keeping these protections in mind at all times can assist the estate planner in advising his or her client and in accomplishing the client’s goals. And, although privileges generally are thought to protect communications, anticipating that at some point the client might find it advantageous to waive these privileges and deliberately documenting communications that could be helpful in the event of a tax audit or dispute could be the linchpins for the client’s case.

Estate Planning for Pets Featured in San Francisco Chronicle

The following is based on Judy Richter, When Your Pets Are Your Heirs [titled online as Owners encouraged to care for pets' future in estate planning], San Francisco Chron., Dec. 15, 2007, at F1.

Leona Helmsley and many other less affluent pet owners make arrangements for their pets’ care after their death.

Colleen McAvoy, a San Mateo attorney who specializes in estate planning, proposes the following options for estate planning for pets:

• Leaving a pet to a designated beneficiary and listing alternates to that person
• Naming someone to inherit the pet and naming a trustee to administer money held in a pet trust
• Naming the pet’s new owner as the beneficiary of a trust and requiring the trustee to give the owner money from the trust as long as the owner cares for the pet
• Leaving the pet to an animal care group

Special thanks to Joel Dobris (Professor of Law, UC Davis 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.

Registry for Reproductive Material Donors?

According to William Heisel, Registry may track egg, sperm donors, LA Times, Jan. 3, 2008:

Troubled by the health history and backgrounds of some anonymous egg and sperm donors, leaders in the fertility industry have said in recent weeks that they would create a national registry to track donors and birth outcomes. * * *

Egg and sperm donors are for the most part anonymous. The Centers for Disease Control and Prevention requires fertility centers to provide detailed data on pregnancy outcomes: the number of attempts at pregnancy, the type of technology used, whether the treatment resulted in multiple fetuses.

But the CDC, which works closely with the reproductive technology society in gathering fertility data, does not keep track of individual donors' histories, diseases or other problems, nor does it link their names to outcomes.

A registry would work something like this: Donation agencies and fertility clinics would submit identifying information about donors and surrogates, including Social Security numbers and birth dates. That information would be linked to results of drug tests, sexually transmitted disease tests and genetic screenings. And all of that data would be linked to outcome information supplied by obstetricians.

Clinics would stay in touch with recipient parents to find out if children had developed any genetic abnormalities. All the information potentially would be available to agencies when a person applied to be a donor and to clinics when prospective parents went to them seeking to use a certain donor.

One of the estate planning issues that may arise if such a registry is created is that is would become easier for people to locate their biological parents.  Under the uncertain laws that exist in many states, the children born as a result of donated reproductive materials may be able to make claims to the donor's estates as heirs, pretermitted children, or as being included in class gifts to children or grandchildren.

Eli Broad changes his mind about donating his art collection

Financier billionaire Eli Broad decided to retain permanent control of his art collection in an independent foundation instead of donating it to museums.

According to Edward Wyatt, An Art Donor Opts to Hold On to His Collection, NYTimes.com, Jan. 8, 2008:

Coming on the eve of the opening, the decision is a potential embarrassment for the Los Angeles museum. It was widely criticized in 2001 for mounting a major exhibition of works from Mr. Broad’s collection without having secured a promised gift of the works, an act that is prohibited at many prominent art institutions because it can increase the market value of the collection. ***

[A]s his collection grew, and it became clear that no museum, the Los Angeles County Museum of Art included, would commit to placing a large percentage of the works on permanent exhibit. ***

Of course Mr. Broad also enjoys tax advantages by keeping much of his artworks in a tax-exempt foundation that lends the work out to museums. ***

Special Needs Trusts CLE

The National Constitution Center is sponsoring a live audio conference on January 30, 2008 entitled Keys to Effectively Administer Special Needs Trusts.

Here is a summary of the program:

Failing to properly administer a Special Needs Trust can result in the loss of important public benefits such as SSI and Medicaid. This can lead to legal pitfalls and a loss of trust assets for your client. How should you properly draft and administer a special needs trust to best fit your client’s individual needs? Join us for this 60-minute audio program where you will discover:

• Identifying & Preserving Public Benefits for Your Client
• Managing Special Trust Assets: Real Estate & Other Property
• Balancing Client Expectations and Trustee Limitations
• Preparing and Planning a Budget to Protect your Clients
• Changes and Trends in Special Needs Trusts you Need to Know

Too Close for Comfort?

The following is from Isabelle Duerme, Funeral Home Near Retirement Center Angers Seniors, AHN News, Jan. 3, 2008:

Senior residents of a local [Coeur d'Alene, Idaho] retirement center are protesting against plans to construct a funeral home right across the street.

Saying that the location of the proposed establishment would be a bit too much of a train, many older residents of the center signed a petition, showing the protest of about 100 residents of the Lake City Senior Center.

The petition is aimed to urge the City Council to revoke the permit issued to James Asper and Mary Hansen, of Aspen Funeral Home LLC, giving them the license to lease the building being eyed as the new funeral parlor. * * *

Unaware of the petition until informed, Mary Hansen said that the funeral home's location was chosen because it was suitable for the business' needs. She said that it was not because of its proximity to the senior center.

The Case of the Vengeful Will

The following will provisions are reported in Jerry Buchmeyer, et cetera, 70 Tex. B.J. 827 (2007):

A will recently probated modified the usual instruction to ‘pay all just debts and obligations.’ Instead, the will provided: ‘None of my debts and credit cards (to be) are to be paid. Let them all go bad and mail each creditor a death certificate.’

Among the instructions for his funeral were these: “I forbid that my ex-wife attend my funeral activities or any future things with the family! I personally hope her and her mother Rot in Hell. I want her to know publicly how much resentment I have for her.”

"The King" Would Have Been 73 Today

Had Elvis Presley lived, he would have celebrated his 73rd birthday today (January 8, 2008).

In honor of "The King," perhaps you will want to read his will.  You may also wish to use his will as a teaching tool and have your students evaluate his estate planning decisions.

But, remember that almost of your students were born after Elvis died so they may not even know who he is!  Perhaps your students would be more interested in whether rapper Chad Butler (aka "Pimp C") had a will when he died on December 4, 2007.

Fiduciary Accounting CLE

The New York City Bar is sponsoring a video replay entitled Everything You Want To Know About Fiduciary Accounting But Were Afraid To Ask! on January 11, 2008, in New York, New York.

The program will feature a panel of trust and estate practitioners and a fiduciary accountant and will include the following topics:

• The preparation of accountings
• The determination of form of accounting and appropriate proceeding
• The forms for judicial and informal accounting proceedings

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

Class Gifts and the Rule of Convenience

David M. Becker (Associate Dean for External Relations and Joseph H. Zumbalen Professor Emeritus of the Law of Property at the Washington University School of Law) has recently published his article entitled A Critical Look at Class Gifts and the Rule of Convenience, 42 Real Prop. Prob. & Tr. J. 491 (2007).

Here is the editors' synopsis:

One issue that affects the use of class gifts in estate planning is the determination of what event should fix the maximum membership of the gift. The rule of convenience is a default construction used by courts to close artificially the membership of a class gift when distribution must be made to a member of such class before the time in which the addition of members has become physically impossible. This Article takes a critical look at the rule of convenience and considers whether this default construction should be amended or rejected. After examining the rule, its applications, and underlying rationale, the author reviews and critiques other possible default constructions. The Article concludes with a recommendation of reform through a revision of the rule of convenience and the adoption of a more flexible default construction.

Creativity in Obituaries

In NPR’s January 4, 2008 Morning Edition, Ann Wroe, an obituary editor and writer for The Economist magazine, speaks about the way she approaches writing obituaries.

"It seems to me like an opportunity to get into dozens of very interesting lives and I find it endlessly fascinating, not in the least morbid[.]"***

For playwright Arthur Miller's obituary, Wroe discovered he had been a carpenter. "And somehow that little clue made me realize how beautifully crafted his plays were — that they were like the work of a carpenter putting together a house, if you like."***

"I find a mere chronology of a life really doesn't sum up that life for me," she says. "I want to get the texture and the sound and even the smell of someone ... get right inside the essence of that person."

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.

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

President Lincoln's Hearse

President Abraham Lincoln's hearse is currently located in Tallahassee Antique Car Museum.

One of my students, Savannah Meyer, recently visited this museum and has shared with me some of the pictures she took.  Follow this link for a PowerPoint presentation of the hearse.

Husband’s property transfer during marriage held fraudulent on wife’s marital rights

In Schoukroun v. Karsenty, No. 1689 (Md. Ct. Spec. App. Dec. 11, 2007), husband created a trust and designated his daughter from a previous marriage as its only beneficiary. He transferred three accounts into the trust immediately and thereafter designated the trust a beneficiary of two other accounts. These two accounts became transfer-on-death (TOD) accounts.

The court held that even if the husband did not act with fraudulent intent, his transfer of property during marriage constituted fraud on his wife’s marital rights because it was not complete, absolute, and unconditional. Therefore, the court decreed that the assets of the trust as well as the TOD accounts must be included in the husband’s estate for purposes of calculating the wife’s statutory share.

Special thanks to Matthew B. Bogin, Esq., for bringing this case to my attention.

Top SSRN Downloads

Here are the top downloads from November 7, 2007 to January 6, 2008 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank	Downloads	Paper Title
1	118	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
2	75	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
3	67	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
4	54	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
5	40	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

Patents for Tax Planning Inventions – An Update

In Proposal to Prohibit Tax Planning Patents - S. 2369, RPPT eREPORT (2007), Rana Salti (Attorney at Law, McDermott Will & Emery LLP) "keeps us up to date on the continuing saga of the patenting of tax planning devises. On November 15, 2007, legislation was introduced in the United States Senate that would prohibit the issuance of any patents for tax planning inventions."