Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, August 9, 2008

Division into shares does not prevent class gift

Texas_2 The testator’s holographic will gave his estate to “my nieces and nephews and to [his wife’s] nieces and nephews” and an unrelated person identified by name.

The will went on to direct division of the estate into 15 equal shares and stated that the nieces and nephews and the non-relative were each to receive one share.

The testator later wrote a holographic codicil which removed the non-relative and two nephews from the will.

The court construed these provisions as creating a class gift so that the nieces and nephews (other than the two nephews removed by the codicil) living at the testator’ death divided the estate.

Estate of Womack, No. 07-07-0446-CV, 2008 WL 2223196 (Tex. App. May 28, 2008).

August 9, 2008 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Top SSRN Downloads

Ssrn_2 Here are the top downloads from June 10, 2008 to August 9, 2008 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank Downloads Paper Title
1 243 A Guide to Starting Social Security Benefits
Richard L. Kaplan,
University of Illinois College of Law,
Date posted to database: August 4, 2008
Last Revised: August 4, 2008
2 158 Limited Liability Companies as Exempt Organizations
Bradley T. Borden,
Washburn University - School of Law,
Date posted to database: June 11, 2008
Last Revised: July 28, 2008
3 92 The Empty Promise of Estate Tax Repeal
Grayson M.P. McCouch,
University of San Diego School of Law,
Date posted to database: June 24, 2008
Last Revised: June 24, 2008
4 69 Compliance with Advance Directives: Wrongful Living and Tort Law Incentives
Holly Fernandez Lynch, Michele Mathes, Nadia N. Sawicki,
Harvard University, Center for Advocacy for the Rights and Interests of the Elderly (CARIE), University of Pennsylvania - School of Law,
Date posted to database: June 20, 2008
Last Revised: August 3, 2008
5 59 Like-Kind Exchanges of Personal-Use Residences
Bradley T. Borden, Alex Hamrick,
Washburn University - School of Law, Wachovia Bank,
Date posted to database: June 22, 2008
Last Revised: June 25, 2008
6 57 Probate Law Reform and Nonprobate Transfers
Grayson M.P. McCouch,
University of San Diego School of Law,
Date posted to database: June 24, 2008
Last Revised: June 24, 2008
7 42 Gift Tax Effects of Substituting a Lower AFR Note for a Higher AFR Note
Jonathan G. Blattmachr, Bridget J. Crawford, Elisabeth O. Madden,
Milbank, Tweed, Hadley & McCloy LLP, Pace University - School of Law, Author - affiliation not provided to SSRN,
Date posted to database: June 1, 2008
Last Revised: June 5, 2008
8 15 Open Adoption, Inheritance, and the Uncleing Principle
E. Gary Spitko,
Santa Clara University - School of Law,
Date posted to database: April 22, 2008
Last Revised: July 24, 2008
9 13 Illusory Consent: When an Incapacitated Patient Agrees to Treatment
Fredrick E. Vars,
University of Alabama - School of Law,
Date posted to database: July 17, 2008
Last Revised: July 17, 2008
10 11 Fathers of Conscience: Mixed-Race Inheritance in the Antebellum South
Bernie D. Jones,
Suffolk Law School,
Date posted to database: June 3, 2008
Last Revised: June 3, 2008

August 9, 2008 in Articles | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2008

Delaware modernizes pet trust statute

DelawareOn August 1, 2008, Delaware’s new pet trust statute (Title 12, § 3555) took effect.  Here is a summary of this legislation:

    • A trust for the care of one or more specific animals living at the settlor’s death is valid.
    • The trust ends upon the death of all animals living at the settlor’s death which are benefit by the trust.
    • The settlor may name a trust enforcer.
    • If the settlor did not name an enforcer (or if the named enforcer is unwilling or unable to serve), the Court of Chancery may appoint an enforcer.
    • A person with an interest in the animals may petition for the appointment or removal of an enforcer.  This interest cannot be merely a general public interest; the petitioner must have an actual interest in the specific animals covered by the trust.
    • Trust property may be used only for its intended use.
    • When the trust ends, any remaining property passes according to the terms of the trust.
    • The settlor (or other owner of the benefited animal) may transfer ownership of the animal to the trustee upon trust creation or thereafter.
    • If the intended owner disclaims, the trustee becomes the owner unless the trust provides otherwise.
    • The trustee must provide the animal with the care the settlor directs in the trust or, if the settlor did not provide instructions, the care that is reasonable under the circumstances.
    • The trustee may employ agents to provide care to the animal and pay for the care from the trust property.
    • The term “animal” is broadly defined to be “any nonhuman member of the animal kingdom.”  Plants and inanimate objects are not included.

August 8, 2008 in New Legislation, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Statute prevents adopted adults from taking under will


The settlor created an inter vivos trust which terminated on the death of the his last surviving child at which time the trust property was to be distributed to issue of his children, and if none, to his heirs determined as if he had died at the time of trust termination.

He also created a testamentary trust with the same terms but without a the gift over.

At the time of termination, the only issue of his children were two adopted daughters of his son who had been adopted as adults.  Under Rhode Island intestacy law, there is no distinction between persons adopted as minors and those adopted as adults.  However, a statute provides that a gift in an instrument to children, issue, etc. of the adoptive parents does not include a person over the age of 18 at the time of adoption.

In Fleet Nat’l Bank v. Hunt, 944 A.2d 846 (R.I. 2008), the court held that the lifetime trust was distributable to the adopted children as heirs of the decedent but because they were not issue of their parent under the statute, the testamentary trust failed and was distributable to the decedent’s heirs determined as of his date of death.

August 8, 2008 in New Cases, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Extrinsic evidence of the testator’s intent was sufficient to construe “spouse” to include surviving spouse

New_jerseyIn its opinion in In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 944 A.2d 588 (N.J. 2008), the court affirmed a judgment finding the list of permissible beneficiaries of a discretionary trust which included the testator's children, their “spouses” and their issue included surviving spouses of deceased children.

The court agreed that the term “spouse” was ambiguous and that the probable intent of the testator could be ascertained by the use of extrinsic evidence including the testimony of the scrivener.

Although most of the testimony should have been excluded as mere opinion, there was sufficient testimony relating to the testator’s direct statements to sustain the judgment of the lower court when combined with evidence of the testator’s over all estate plan which included several other lifetime trusts.

August 8, 2008 in New Cases, Wills | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2008

Estate planning for minors

Minors_book_2Carmina Y. D'Aversa (estate tax attorney with the International Estate Tax Group of the Internal Revenue Service in Washington, D.C.) has published her book entitled Tax, Estate, and Lifetime Planning for Minors.

Here is a description of her book:

Numerous and often complicated issues are involved in estate planning for minor children, including taxation, education funding, insurance, and disability of a minor or a minor's caregiver. Tax, Estate, and Lifetime Planning for Minors focuses exclusively on the pertinent issues facing adults when planning for younger family members. Combining core legal concepts with practical wisdom, it is a handy desk reference not only for the seasoned practitioner but for the general or novice practitioner handling his or her first estate plan.

Tax, Estate, and Lifetime Planning for Minors brings together the knowledge and insights of fourteen experienced practitioners and law professors, including Jon J. Gallo, Christopher P. Cline, E. Paul Van Horn, Nancy E. Shurtz, Aen Walker Webster, Naomi R. Cahn and Cynthia L. Barrett. The book begins with a clearly written overview of pertinent Federal transfer and income tax principles. A separate chapter is dedicated to the increasingly significant death and gift taxes that may be imposed by the states. Subsequent chapters cover other important elements in planning for younger family members, including:


o    Selection of life insurance policies and irrevocable life insurance trusts

o    Funding education costs

o    Planning options for the daily care of a minor in the event of a caregiver's incapacity

o    Special needs trusts and planning for the disabled minor

o    Transfer of retirement benefits to minors

o    Special considerations for children born of assisted reproductive technologies

Relevant chapters categorize current state laws with the use of easy-to-read informational charts, whether covering state-by-state tax regimes, state-specific daily child care options for incapacitated caregivers, or state adopted provisions of the Uniform Transfers or Gifts to Minors Acts. Tax, Estate, and Lifetime Planning for Minors also examines the most significant non-tax considerations required when testamentary planning involves minor children.

This deskbook is written especially for the practitioner, and its discussion of the law is illustrated with helpful Practice Notes, sample language, and detailed notes and citations. The appendices include sample forms and disclaimers, tables, a Website resource listing, a client questionnaire, and drafting examples. The book's forms are also contained on an accompanying CD-ROM.

August 7, 2008 in Books - For Practitioners | Permalink | Comments (0) | TrackBack (0)

Perpetual dynasty trust CLE

Aba_cleThe 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 August 26, 2008 entitled Perpetual Dynasty Trusts: Tax Planning and Jurisdiction Selection.

Here is a description of this program:

In recent years, a “dynasty trust” has come to mean a trust that is designed to last for several generations or, in many jurisdictions, in perpetuity. When should you recommend a dynasty trust for a client?  What are the federal tax implications?  What jurisdiction is best, and can you actually chose the jurisdiction without your own jurisdiction interfering in that choice?  Creating a dynasty trust takes great care, and involves looking into these and other issues.  This panel discussion will cover selected issues with respect to perpetual dynasty trusts.

This program will cover:

·         The three types of dynasty trusts for federal tax purposes

·         The client’s ability to choose a jurisdiction for a trust

·         The ability of a court in the client’s state of residence to disregard that choice

·         Factors that a client should consider in selecting a jurisdiction

·         Whether an existing trust may be moved to a better jurisdiction

·         Ethical and practical concerns in creating a dynasty trust

·         The use of dynasty trusts by nonresident aliens

August 7, 2008 in Conferences & CLE, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2008

Transporter confinement beam fails – Scotty’s molecules scattered over wide area


On July 20, 2005, the actor James Doohan passed away at age 85. Mr. Doohan is well-known for his portrayal of the chief engineer, Scotty, on the Enterprise, a starship traversing the universe in the television and movie Star Trek franchise.
In 2007, some of Mr. Doohan’s cremains were sent into space but the rocket ship did not make it into orbit and crashed back to earth.  Several weeks later, they were found in New Mexico.  See Scotty's space-flight ashes found, BBC News, May 18, 2007.

On Saturday, August 2, 2008, another attempt was made to “beam up” Scotty.  Unfortunately, after about two minutes of flight, an anomaly (space euphemism for “blowing up”) occurred and Scotty’s ashes were scattered everywhere.

Here are some additional details from John Schwartz, Launch of Private Rocket Fails; Three Satellites Were Onboard, New York Times, August 3, 2008:

Elon Musk, an Internet entrepreneur, founded the company, known as SpaceX, in 2002 after selling his online payment company, PayPal, to eBay for $1.5 billion. The company, based in Hawthorne, Calif., has been hailed as one of the most promising examples of an entrepreneurial "new space" movement, and has 525 employees.

* * * Mr. Musk said, "It was obviously a big disappointment not to reach orbit" on the flight. He referred to the first stage of the launching as "picture perfect," but said, "unfortunately, a problem occurred with stage separation, causing the stages to be held together. This is under investigation."
The rocket was launched from the Kwajalein Atoll in the central Pacific at 11:34 p.m. Eastern time, after several hours of delays and one aborted launch attempt.

The first Falcon 1 launch, in March 2006, failed about a minute into its ascent because of a fuel line leak. A second rocket, launched in March 2007, made it to space but was lost about five minutes after launching. * * *

The rocket was also carrying the ashes of 208 people who had paid to have their remains shot into space, including the astronaut Gordon Cooper and the actor James Doohan * * *. The service is called an "Explorers Flight" by the company that arranges them, Celestis, Inc.

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

August 6, 2008 in Current Events, Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Lewis & Clark Law School seeks Trusts & Estates professor

The Lewis & Clark Law School in Portland, Oregon is currently seeking an Estate Planning/Wills & Trusts professor to start in Fall 2009.

Interested persons should send a résumé, references, a writing sample, and an indication of teaching interests to Doreen Corwin, Executive Assistant to the Associate Dean of Faculty, Lewis & Clark Law School, 10015 SW Terwilliger Boulevard, Portland, OR 97219.

August 6, 2008 in Faculty Positions -- Permanent | Permalink | Comments (0) | TrackBack (0)

When should a person start drawing Social Security?


Richard Kaplan (Peer and Sarah Pedersen Professor of Law, University of Illinois College of Law) has recently posted on SSRN his article entitled A Guide to Starting Social Security Benefits.

Here is the abstract of his article:

When a person should begin taking Social Security retirement benefits is a critical question for planning one's retirement. This article explains the various factors at play in determining the optimum starting point, including: longevity considerations; spousal implications, whether for a previously employed or a previously unemployed spouse; the impact of post-retirement employment; the availability of health insurance prior to Medicare eligibility for the worker and the worker's spouse; alternative sources of retirement income, including distributions from retirement savings plan assets and lifetime liquidation of nonretirement assets (and the pertinent income tax ramifications); and anticipated investment strategies.

Prof. Kaplan’s article also appears in the July/August 2008 issue of the Journal of Retirement Planning.

August 6, 2008 in Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)