Wills, Trusts & Estates Prof Blog

Texas lawyer disbarred for probate misconduct

The following is a description of the conduct which caused an Irving, Texas lawyer to be disbarred on June 2, 2008:

An evidentiary panel of the District 6A-B2 Grievance Committee found that [attorney's] great uncle executed a will naming [him] as independent executor. The will provided that the independent executor would serve without compensation. On Oct. 9, 2002, [the] great uncle died. Although he was administratively suspended, [attorney], as independent executor, hired himself as attorney to represent the estate. The employment agreement provided [that he] would be paid a legal fee of one-third the estate value for legal services rendered. As attorney for the independent executor, [he]neglected probate of the estate by failing to file an inventory and appraisement until a show cause order was issued. On [his] advice, the estate invested funds with another client of [attorney] that owed [attorney] attorney’s fees. On Aug. 1, 2006, [he] was removed as independent executor. The court found the fee charged by [him] as attorney was unconscionable and grossly excessive.

See Disciplinary Actions, 72 Tex. B.J. 216, 216 (2009).

Estate tax -- past and possible future

Robert Moshman (Writer and Attorney) has written an article entitled The Estate Analyst: "Plateau or Pinnacle", Jan. 28, 2009.

Here is a summary of the article:

The article overviews the past 8 years of the fabled estate tax repeal. It overviews the current state of the estate tax scheme, current and years past, 2001-2009. It also gives some practical advice for planners, while highlighting some of the possible changes that could happen in the coming years.

Potential problems with the Uniform Disclaimer of Property Interests Act of 2000

Adam Hirsch (William and Catherine VanDercreek Professor of Law, Florida State University College of Law) has recently posted on SSRN his article entitled Disclaimer Law and UDPIA's Unintended Consequences.

Here is the abstract of his article which is slated to appear in the April 2009 issue of Estate Planning:

The Uniform Disclaimer of Property Interests Act of 2000 (UDPIA) offers a Uniform law to define the rights of a beneficiary to reject (or disclaim) an inheritance. In prior articles, I have criticized various provisions of UDPIA on policy grounds. The present article identifies a number of instances where the Act fails to operate as it was intended to do. The legislative history of UDPIA reveals that as concerns (1) the formal requirements for executing a disclaimer, (2) the time limit for disclaiming, (3) the treatment of disclaimers of joint interests, (4) the right of an insolvent beneficiary to disclaim, and (5) the right of a beneficiary to disclaim following a judicial sale of inherited property, the drafters of the Act contemplated that it would operate differently from the way it actually does. The legislative history further suggests that the drafters' failure accurately to interpret the consequences of their own work product stemmed from time pressure, coupled with the complexity of the enterprise. But the upshot is that the plenary body of NCCUSL, voting to promulgate the Act, and local drafting committees, voting to adopt it, have relied on presentations and comments prepared by the drafting committee that misstate UDPIA's operation and thereby misled the Act's various electorates.

Gift Planning

Martin M. Shenkman (Member, Martin M. Shenkman, P.C.) has written a new article entitled The Practical Planner: "Gift Planning During Economic Uncertainty", Dec. 31, 2008.

Here is a summary of the article:

Gift planning is a substantial part of estate planning for many people. This article overviews some of the most popular techniques. It also contains changes to law, such as the gift exclusion increase from $12,000 to $13,000 in 2009. It also touches on some of new legislation that could have an impact on gift planning.

UK doctor to sell euthanasia kits

Dr. Philip Nitschke, the Australian doctor known as "Doctor Death," will start selling his euthanasia kits in the United Kingdom in May 2009 and internationally shortly thereafter.

His kit provides chemicals that the user mixes with barbiturates and when they change color properly, the user knows that a lethal mixture has been created.

The kits will sell for about USD $50.

Dr. Nitschke promotes the kits with online do-it-yourself euthanasia workshops.

For more details, see Jamie Doward,  'Dr Death' sells euthanasia kits in UK for £35, The Observer, March 29, 2009.

This is certainly an interesting business model in which your product is designed to cause no repeat business!  And, he better get payment upfront!

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

Retirement Benefit Planning

Alvin J. Golden (Ikard & Golden, P.C., Austin, Texas) has recently published his article entitled Selected Problems in Planning with Retirement Benefits: Community Property Issues and Creditor's Rights, 1 Est. Plan. & Comm. Prop. L.J. 169 (2008).

The article covers the following topics:

• General community property issues
• ERISA preemption and qualified plans
• Community property issues at death
• Aggregate versus individual asset theory
• The Bankruptcy Abuse Prevention and Creditor Protection Act
• Construction of state statutes

Article explains benefits of having a will and how to get one

A recent widely distributed AP article contains some excellent advice on why it is a good idea to have will.

Here are some of the benefits mentioned in Candice Choi, Don't let death steal your wishes: Write a will and take control, Lubbock Avalanche-Journal, March 29, 2009 at D2:

• Without a will, a person's property disposition desires expressed in other ways are unlikely to be legally binding.
• A person with a will can control "from the grave" how his or her property is used after death.
• A will may reduce family arguments.

The article also discusses a variety of ways (some good, some not-so-good) to obtain a will:

• Hiring an estate planning attorney.
• Using an online service.
• Doing-it-yourself.

Estate planning malpractice analyzed

Sharon B. Gardner (Partner, Crain Caton & James, Houston, Texas) has recently published her article entitled Project Runaway--One Day You're In As the Attorney and the Next Day You're Out!, 1 Est. Plan. & Comm. Prop. L.J. 111 (2008).

Here is an excerpt from the article's introduction:

This article traces the history of attorney liability in Texas as it relates to probate and trust lawyers.  After reviewing the general concepts of liability, this discussion will cover those claims unique to this area of practice.  This article will suggest ways to reduce potential liability in these often uncharted waters.  Also discussed is the viability of using arbitration agreements in fee arrangements in the context of legal representation.

The article further discusses a recent ethics opinion, requested from the State Bar of Texas by the author's law firm, regarding passing the cost of a legal malpractice claim defense to the underlying client in a way that is ethical when the claim is made by a third party.

Top SSRN Downloads

Here are the top downloads from January 28, 2009 to March 29, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	236	2008 Developments in Connecticut Estate and Probate Law Jeffrey A. Cooper, John R. Ivimey, Quinnipiac University School of Law, Reid and Riege, P.C., Date posted to database: February 21, 2009 Last Revised: February 21, 2009
2	159	Hurford: FLP Practice Pointers Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: February 11, 2009 Last Revised: February 23, 2009
3	90	Suggestions for the Treasury, the DOL, ERISA Plan Sponsors, Administrators, Representatives of Plan Participants and Potential Beneficiaries after Kennedy v. Plan Administrator of Dupont Savings and Investment Plan Albert Feuer, Law Offices of Albert Feuer, Date posted to database: February 19, 2009 Last Revised: March 7, 2009
4	73	Family Values and the Law of Inheritance Anne Alstott, Harvard University - Harvard Law School, Date posted to database: February 4, 2009 Last Revised: February 6, 2009
5	72	'To Be Human': A Psychological Perspective on Property Law Jeremy A. Blumenthal, Syracuse University - College of Law, Date posted to database: January 29, 2009 Last Revised: February 10, 2009
6	70	College Savings Plans: Not Just for Education Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: March 11, 2009 Last Revised: March 11, 2009
7	63	In Defense of Conservation Easements: A Response to 'The End of Perpetuity' Nancy A. McLaughlin, W. William Weeks, University of Utah S.J. Quinney College of Law, Author - affiliation not provided to SSRN, Date posted to database: January 24, 2009 Last Revised: February 9, 2009
8	50	Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice Miranda Perry Fleischer, University of Illinois College of Law , Date posted to database: February 25, 2009 Last Revised: March 20, 2009
9	48	Philosophical Foundations of Proprietary Remedies Lionel Smith, Quebec Research Centre of Private and Comparative Law, Date posted to database: February 20, 2009 Last Revised: February 20, 2009
10	45	A Unanimous ERISA Decision by the Supreme Court Raises Troubling Questions Albert Feuer, Law Offices of Albert Feuer, Date posted to database: February 2, 2009 Last Revised: February 9, 2009

Equal may not be fair

Many parents believe that dividing their estate equally among the children is a fair way to distribute their property.  However, this may not be the case.

The following excerpt is from Eileen Aj Connelly, With wills, 'equal' not always ' fair', Lubbock Avalanche-Journal, March 29, 2009, at D1:

Splitting assets evenly between siblings may seem like the equitable way to divide an estate * * *. But when issues like how much parents contributed to the education of one sibling or the caregiving role of another are factored in, what's fair may be quite different from an even split.

* * * [N]ever assume that after [parents] die, their children will work things out, especially when it comes to things like family heirlooms.

Britany Spears' conservator forces fan website to close

Jordan Miller operates two websites (www.BreatheHeavy.com and www.BritneyRes.com) devoted to his "inspiration," Britany Spears.  Britany's conservator, Jamie Spears, has requested that he close the websites because Mr. MIller is using her name and image for financial gain without her consent.

Mr. MIller has posted an extensive discussion of why he believes his actions are allowable (the money he makes from the websites is used to support website expenses) and that Jamie's actions are in response to Mr. Miller's opposition to Britany's conservatorship. 

Anna Nicole Smith's body disposition judge accused of elder abuse

 Judge Larry Seidlin who gained fame as the presiding judge over the hearing to determine the proper disposition of Anne Nicole Smith's body, is now under investigation for elder abuse.

Here are some details from Bob Norman, Judge Larry Under State Investigation After Elderly Abuse Complaint, New Times (Broward-Palm Beach), March 26, 2009: 

[T]he judge now faces a complaint of elderly abuse from the niece and caretaker of the elderly woman he has already been accused of financially exploiting.

Corine Kasler, who is in town visiting 83-year-old Barbara Kasler, says she filed a complaint against Seidlin on the state's Elderly Abuse Hotline today, saying she is "shocked" by the treatment her aunt has been given by the former judge, whom she describes as "evil." The new allegations include failing to feed and medicate Kasler for an extended period of time and endangering her health with poor care.

State investigators are already on the case and today are questioning witnesses at the Marine Towers on Las Olas in Fort Lauderdale, where both Kasler and Seidlin live. * * *

The judge was the subject of an elderly exploitation investigation last year by the Miami-Dade State Attorney's Office after this New Times article revealed the judge had convinced Kasler to give his family some hundreds of thousands of dollars worth of gifts. Seidlin and Kasler were neighbors at the Marine Tower condos in Fort Lauderdale.

Assistant State Attorney Howard Rosen cleared Seidlin of wrongdoing, saying that Barbara Kasler willingly gave the gifts to Seidlin's family members, including his young daughter, Dax, his wife, Belinda, and her parents, Barbara and Oren Ray, who also live in the same building.

FLP victory for IRS -- but, taxpayer made it easy

On March 26, 2009, the Tax Court decided Estate of Jorgenson v. Commissioner, T.C. Memo 2009-66.  In this case, the court held that all assets of a family limited partnership were included in the decedent's estate -- a big victory for the IRS.

To read an excellent discussion of this case, see David Shulman, Estate of Jorgensen v. Commissioner: IRS wins another Family Limited Partnership Case due to the Taxpayer Doing Everything Wrong, South Florida Estate Planning Law Blog, March 27, 2009. 

Yale fights to keep Night Cafe

Yale graduate Stephen Carlton Clark, the founder of the Baseball Hall of Fame, left the Van Gogh painting entitled Night Cafe to Yale.

Now, a descendant (Pierre Konowaloff) of the original owner (Ivan Morozov) claims that the property was improperly taken from Ivan by the Russian government during the Communist revolution.

According to Ed Harris, Yale fights to keep Van Gogh masterpiece, Evening Standard, March 25, 2009:

The university says Mr Konowaloff has claimed ownership and has said he wants title transferred to the Russian state and to receive compensation. Mr Konowaloff claims the Soviet nationalisation of property was illegal, so title never passed from his great-grandfather, according to Yale.

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

AALS Section on Trusts and Estates Call For Papers for 2010 AALS Annual Meeting

Trusts and Estates law was for centuries a fairly stable, if dusty, body of doctrine. Over the past few decades, however, striking changes in the economic, legal and social landscape have prompted an explosion of new doctrinal developments. Major trends in banking and tax law – including the gradual elimination of Glass-Steagall, which resulted in mergers of investment and commercial banking institutions and increased competition for trust business, and the Economic Growth and Tax Relief Reconciliation Act of 2001, which is set to expire next year -- spurred the development of dynasty and domestic asset protection trusts and significant changes in fiduciary duty law governing trustees’ management and investment duties. Banks’ demand for more predictability in law helped jump start a trend away from common law and toward codification, which produced the Uniform Trust Code and increasingly detailed revisions to the Uniform Probate Code. Cultural changes and scientific and medical advances caused states to grapple with their conception of family relationships, and with treatment of end-of-life issues.

The AALS section on Trusts and Estates issues a call for papers that evaluate and critique these and other trends and developments in Trusts and Estates Law. Those chosen will present papers at the 2010 AALS Annual Meeting in New Orleans during a program entitled Changing Times, Changing Law: Evaluating Legal Trends in Trusts and Estates Law. To encourage greater participation and attendance, some preference will be given to academics who have not previously presented at the AALS Annual Meeting. Please submit papers by August 24, 2009 to Melanie Leslie at Leslie@yu.edu.

Anne Nicole Smith -- More evidence against her psychiatrist

Earlier on this blog, I discussed that on March 12, 2009, Howard K. Stern (Anna Nicole Smith's partner and attorney) and her two doctors (Sandeep Kapoor and Khristine Eroshevich) were charged with 8 felonies which include a variety of drug related offenses including "prescribing, administering or dispensing a controlled substance to an addict."

Recently released photographs show Khristine Eroshevich snorting a white substance which could be cocaine. These pictures may be significant circumstantial evidence that Eroshevich was using drugs which could lead to homicide charges.

See Lawyer: Cocaine Scandal Photos Of Anna Nicole’s Doc a Prescription For Prison!, Radar Online, March 25, 2009. 

Open-Air Cremation

Many followers of the Hindu religion desire to have an open-air cremation rather than being cremated in a traditional crematorium. 

The ability of a person to have an open-air cremation is currently being debated in the United Kingdom.  Here are the basic facts of the case:

• Kumar Ghai wants to assure that his desire to have an open-air cremation is carried out.
• The Newcastle City Council indicated that it would not permit his son to dispose of Kumar's body in this manner claiming that it would violate the 1902 Cremation Act which requires cremation to be performed in a crematorium.
• Kumar has appealed to the English High Court.
• Kumar claims that the Cremation Act breaches his human rights and discriminates against him on the basis of race and religion.
• There is evidence the open-air cremation have been performed before with the authorities turning a blind eye to the practice.

For a detailed discussion, see Jerome Taylor, The Big Question: Why do Hindus want open-air cremation, and should it be allowed?, The Independent, March 25, 2009.

If confessing on deathbed, be sure you are going to die!

James Brewer recently had a stoke and thought his days on this earth were few.  Accordingly, to "cleanse his soul," he confessed to a murder he committed over 30 years ago.

However, his estimate on his remaining days was wrong.  Instead of dying, he recovered and had to figure out what to do.  He and his wife sold everything they owned and fled.  But, later he surrendered to police and may now face the death penalty.

The "back story" is this -- he was arrested for killing a man in 1977 in Tennesee.  He thought that the man (Jimmy Carroll), his neighbor, was trying to seduce Dorothy, his wife.   He jumped bail and fled to Oklahoma where he and Dorothy began a new life which appears to have been a good one.

See Kunal Dutta, Stroke victim's 'deathbed' confession to 32-year-old murder proves premature, Independent World, March 24, 2009.

Estate planning to protect the family vacation home

William S. Forsberg (shareholder, Leonard Street and Deinard) has recently published his article entitled The Family Vacation Home: Keeping It in the Family is Hard to Do -- It's More About Cooperation Than Planning!, Prob. & Prop., March/April 2009, at 41.

Here is the conclusion of his article:

The family vacation home is often a cherished asset, and, if it is well managed and maintained, it can provide generation on generation with invaluable enjoyment and lasting memories.  Keeping it in the family, however, requires forethought, planning, and some well-heeled management and cooperation skills--especially the later.

The techniques discussed in the article include:

• fee simple transfers
• holding the vacation home in trust
• holding the vacation home in an entity (partnership, FLP, S or C corporation, or LLC)

Deferring estate taxes under IRC § 6166

Kimberly Leach Johnson(partner, Naples office, Quarles & Brady LLP) & Amalia Levit Todryk(associate, Milwaukee office, Quarles & Brady LLP) have recently published their article entitled Planning for the Payment of Estate Taxes for Illiquid Estates Owning Real Estate -- The Code § 6166 Deferral, Prob. & Prop., March/April 209, at 33.

Here is an excerpt from their article:

A client with a taxable estate that consists largely of an interest in a closely held business that owns real estate needs to plan for liquidity or arrange the assets to take advantage of the Code § 6166 election to defer the payment of estate tax. * * * During these tough economic times and with the possibility the a new administration will increase estate tax rates and lower the estate tax exemption, advisors need to work with their clients to plan for the payment of estate taxes.  Borrowing money from a bank is not the option it used to be.  Code § 6166 is a tool that clients can take advantage of with proper planning.