Wills, Trusts & Estates Prof Blog

Creating a Durable Power of Attorney

A durable power of attorney is a document that gives someone power over another person's financial affairs.  The benefits of, and advice for creating, a durable power attorney are discussed in a recent article.  The article stresses the importance of choosing a trustworthy agent and setting out the agent's powers.  Additionally, the article points out that effective planning ensures that the power of attorney will be effective under the varied laws of all states and countries where it may be needed, and not just the state where it is created.

For more information, see Deborah L. Jacobs, Putting Your Faith in a Power of Attorney, NY Times, May 9, 2009.

Special thanks to J. Barrett Shipp (The Law Office of J. Barrett Shipp, San Antonio, Texas) for bringing this article to my attention.

Top SSRN Downloads

Here are the top downloads from April 1, 2009 to May 31, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	92	Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright Deven R. Desai, Thomas Jefferson School of Law, Date posted to database: April 27, 2009 Last Revised: April 27, 2009
2	82	How the Rich Stay Rich: Using a Family Trust Company to Secure a Family Fortune Iris Goodwin, University of Tennessee, Knoxville - College of Law, Date posted to database: April 24, 2009 Last Revised: May 27, 2009
3	76	What is a Trust? Mark Leeming, University of Sydney - Faculty of Law, Date posted to database: April 16, 2009 Last Revised: April 16, 2009
4	63	Trust Law and the Title-Split: A Beneficial Perspective Kent D. Schenkel, New England School of Law, Date posted to database: January 23, 2009 Last Revised: February 9, 2009
5	44	The Fiduciary Duty of Departing Employees Robert Flannigan, University of Saskatchewan, Date posted to database: April 16, 2009 Last Revised: April 16, 2009
6	38	The Uniform Power of Attorney Act: New Solutions to Old Problems Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: May 2, 2009 Last Revised: May 26, 2009
7	32	Codification of Late Roman Inheritance Law: Fideicommissa and the Theodosian Code Joshua C. Tate, Southern Methodist University - Dedman School of Law, Date posted to database: April 11, 2008 Last Revised: February 11, 2009
8	30	Post-Mortem Sperm Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows Mary F. Radford, Georgia State University - College of Law, Date posted to database: April 13, 2009 Last Revised: April 28, 2009
9	17	Review of Federal Income Taxation of Estates and Beneficiaries Ronald H. Jensen, Pace University School of Law, Date posted to database: April 16, 2009 Last Revised: April 16, 2009
10	15	Fiduciary Accountability Transformed Robert Flannigan, University of Saskatchewan, Date posted to database: May 18, 2009 Last Revised: May 18, 2009

Failure to draft will contributes to attorney's suspension from the practice of law

On January 29, 2009, an Austin lawyer was suspended from the practice of law for three years, with the first year to be actively served with the remaining two years probated.

Here is a description of her conduct as found in Disciplinary Actions, 72 Tex. B.J. 406, 407-08 (2009):

An evidentiary panel of the District 9-A Grievance Committee found that in a civil matter involving the drafting of a will, [she] failed to draft the will, failed to keep the client reasonably informed about the status of the case, failed to refund any unearned fee, and engaged in legal work while administratively suspended from the practice of law. The panel further found that in a bankruptcy matter, [she] engaged in legal work while administratively suspended from the practice of law.

Funeral Home Lets Bodies Drip and Decay

A national funeral home corporation is under investigation for improper handling of mortal remains, including the remains of U.S. military personnel headed for Arlington National Cemetery, at the National Funeral Home in Falls Church, Virginia.   A former employee alleges that as many as 200 bodies and coffins were stored in an unrefrigerated garage on make shift gurneys and racks for weeks to months, dripping fluids on the floor as they decayed.  One witness stated that he saw naked bodies exposed in the garage. 

The corporation, SCI, operates over 1,700 funeral homes nationwide and has been under scrutiny for improper handling before.  Nationwide Funeral Home was under a three year probation for unsanitary conditions.  Multiple employees confirm the conditions.  

For more information, see Josh White,Family Asks Fairfax Prosecutor to Investigate Funeral Home, Washington Post, April 7, 2009; Josh White, 'I Never Could Have Imagined', Washington Post, April 5, 2009.  A Washington Post video is linked here.

Thanks to Lewis J. Saret (Moore & Bruce, LLP) for bringing these articles to my attention.

Astor Estate Update

I have posted multiple blogs on the trial of Mrs. Brooke Astor's son, Anthony Marshall, including here and here.

The following is an update on how the trial is progressing.  

• The 30+ wills and amendments that were executed by Mrs. Astor were placed in bulky binders on a tri-level cart in the court room.
• The last four weeks of trial have focused on Mrs. Astor's mental condition. 
• Now the trial is focusing on the time period during which Mrs. Astor executed the codicil giving her son full control of her residual estate. 
• The lawyer who helped Mrs. Astor execute a codicil just a month before she executed the codicil at issue was recently called to testify about Mrs. Astor's mental condition during the critical time period. 

See John Eligon, Focus on Astor's Many Wills, and a Lawyer in the Middle, NY Times, May 26, 2009.

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

Estate Planning Lawyer & Family Found Dead

Last month the body of William Parente, an estate planning attorney, was found with the bodies of his wife and his two daughters in a Baltimore hotel room.

Here is a time line of what occurred in this unfortunate case:

• Parente's investment business invested at least $20 million dollars over the last 20 years in high-yield bridge loans.
• Investors asked that their money be returned after the Madoff scam went public.
• The family traveled to Long Island to visit thier oldest daughter who was a student at Loyola. 
• Police say that Parente beat and asphyxiated his family and then took his own life. 
• Checks that Parente issued to investors shortly before his death bounced shortly after his death.
• FBI agents seized records related to Parente's investment business from his Manhattan office.

See Theo Emery, 4 Bodies Found in Maryland Hotel, The New York Times, April 21, 2009; Michael Amon, FBI raids William Parente's office, Los Angelos Times, April 29, 2009.

Estate Taxes in 2010

Under the Bush tax cuts of 2001, the estate tax was supposed to fully disappear for the year 2010 and resume in 2011.  Instead, President Obama is assuming that the 2009 tax levels will carry over for 2010. There are two sides, however, to the question about whether the estate-tax plan for 2010 should be changed.

• In opposition of change: Some members of congress, who may be motivated by self-interest and/or ideology, and the very small number of Americans who will potentially be harmed by the higher-than-expected tax rate.

• In favor of change: Those who feel the estate tax is a necessary source of revenue for a highly indebted nation and those who believe the super-rich, at the center of high-salary and big-bonus scandals, are to blame for the current financial crisis.

See David R. Francis, Tax the heirs of the rich (at least a few of them), The Christian Science Monitor, April 22, 2009.

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

Texas Probate Fee Survey results now available

Richard Bischoff (Attorney, El Paso, Texas) has recently compiled the results of his survey of how Texas probate lawyers charge for estate planning services.

The complete results of his survey are available here.

Here are some of key results:

• By a significant margin (73.4% to 26.6%), respondents charge for estate planning services on a flat fee, rather than hourly basis.
• The most common hourly fee is between $175-200 but almost 5% charge in the $400-500 range.
• The most common flat fee for an estate plan without tax issues is between $750-1000.
• The most common flat fee for an estate plan with tax issues is between $2,001-3,000.

Trusts -- Australian Style

Mark Leeming (Faculty of Law, Univ. of Sydney Law School) has written a new article entitled What is a Trust?, 7 Trusts Quart. Rev. 5 (2009).

Here is the abstract of the article from the SSRN version of his article:

A trust is a relationship, not a legal person, popular misconceptions (reinforced by statutory fictions) notwithstanding. The trust relationship is between trustee, beneficiaries, property and third parties. It interacts with other aspects of the legal system, notably, common law and statute. This article examines some aspects of how that interaction occurs. The first half addresses how common law has long recognised trusts, and focusses in particular on assignments of choses in action prior to the judicature legislation, with a view to assessing what the real impact of that legislation was. Conversely, the second half analyses how the equitable rules in the law of trusts accommodate prohibitions and restrictions at common law and in statute upon the trust property.

Dean John E. Cribbet dies

It is with a heavy heart that I report on the passing of Dean John E. Cribbet (University of Illinois College of Law) on May 23, 2009.  Although I visited with Dean Cribbet only a few times while studying at the University of Illinois as he was the Chancellor at that time, I found him to be one of the most amazing individuals I had ever met.

Here are some excerpts from Former UI Chancellor, Law School Dean John Cribbet dies at 91, University of Illinois:

Cribbet, chancellor of the Urbana campus from 1979-84, was a well-known legal scholar and pioneer in the field of property law. His books include the widely used "Cases and Materials on Property," a law textbook now in its eighth edition [GWB: This is the only book from which I've taught Property].

"John Cribbet transformed all that he touched - the university, the College of Law, and, most importantly, his students and colleagues," said Bruce P. Smith, the dean of the college and Guy Raymond Jones Faculty Scholar. "He was a legendary teacher and scholar in the field of property law. But he was also a terrific person. * * *

Former U. of I. President Stanley Ikenberry, who worked with Cribbet during his five years as chancellor, said: "John Cribbet represents the very best of the University of Illinois. He gave a lifetime of dedication and commitment, and was a person of great talent, great intellect and great character who helped both build and exemplify the greatness of the university." * * *

Colleagues say Cribbet's first love was teaching. A perennial outstanding faculty selection by students, he returned to the law school after resisting Ikenberry's efforts to stay on as chancellor and taught for 12 years before retiring in 1988. * * *

"Cribbet was born Feb. 21, 1918, in Findlay, Ill., a son of Howard and Ruth Cribbet. He earned his bachelor's degree from Illinois Wesleyan University in 1940, and enrolled at the University of Illinois College of Law.

In the summer of 1941, Cribbet interrupted his studies to enlist in the U.S. Army as a private. Over the next four years, he rose in rank and responsibility, completing his military career as a major and aide-de-camp for 8th Corps Commander Gen. Troy Middleton. Cribbet's distinguished service earned him the Bronze Star and Croix de Guerre.

Cribbet earned his law degree from Illinois in 1947. After a few months in private practice in Bloomington, Ill., he was recruited to the College of Law faculty by long-time Dean Albert J. Harno. Cribbet was an assistant professor from 1947-1951, associate professor from 1951-1953, and professor beginning in 1953. * * *

Cribbet was a well-known legal scholar, writing or co-writing numerous articles and texts. He also founded the University of Illinois Law Forum, now known as the University of Illinois Law Review, and served as its first faculty editor.* * *

Cribbet is survived by his wife, Betty, and daughters Pamela and Carol Ann and their families. The couple married Dec. 24, 1941.

A memorial service will take place Saturday (May 30) in the Max L. Rowe Auditorium in the College of Law in Champaign. The service will begin at 2 p.m.

Read News Gazette article - "Life Remembered: Ex-UI dean, chancellor John Cribbet a pioneer"

Read Chicago Tribune article - "John E. Cribbet, 1918-2009: Former U of I chancellor, law dean"

Evelyn A.J. Hall -- Update

I previously posted an update on the controversy surrounding the Jolika Collection at the M.H. de Young Memorial Museum in San Francisco.

Here is what has developed since the last post. 

• San Fransisco agreed to sell 76 pieces from the collection to resolve the inheritance dispute between the three Friede brothers.
• One of the brothers opposes the sale because he was not involved in picking the pieces, which he feels are not valuable enough to pay the debt owed him and another brother.
• The same brother is also opposed to a $3.7 million payment from his mother's estate to the museum that will promote the collection.
• The $3.7 million is currently being held by JPMorgan.
• This summer Sotheby's plans to auction ten of the works it was previously awarded as an unpaid creditor.

See John Cote, De Young selling tribal art as family squabbles, San Fransisco Chronicle, April 22, 2009; Kate Taylor, Art Collection Dwindles as Disputes Continue, New York Times, April 24, 2009. 

Family Trust Companies

Iris J. Goodwin (Associate Prof. of Law, Univ. of Tennessee Knoxville School of Law) has posted her article on SSRN entitled How the Rich Stay Rich: Using a Family Trust Company to Secure a Family Fortune, Univ. of Tenn. Leg. Studies Paper 61 (Mar. 2009).

Here is the abstract of her article:

This Article is about family trust companies and the role they play in preserving great fortunes. A family trust company is a corporation formed to provide fiduciary services to a related group of people, in contrast to banking institutions established to offer similar services to a larger public. The province of the mega-rich (who remain very much upon the American landscape, the recent economic crisis notwithstanding), these entities have received scant attention from the academic bar. While family trust companies are not new, recent changes in the law in some states have made these entities far easier to create and to operate - much more accessible to wealthy families looking to preserve their fortunes far into the future. To appreciate the significance of the contemporary family trust company, however, we must not only attend to the particulars of these new rules, but we must also examine this entity in situ, as the very wealthy often employ it - as the centerpiece in a megawatt estate plan, the masterstroke in a series of aggressive planning techniques that potentially secure and indeed grow a fortune to benefit a family for untold generations to come. There is also a normative dimension to the family trust company and to those strategies that would employ it to secure the very wealthy in their fortunes. It has long been a commonplace of democratic theory that, while democracy is largely immune to some degree of material difference within a polity, intransigent, radical differences in means are problematic. For this reason, the dissipation of great fortunes has been viewed as salubrious in a democratic polity. For those concerned about the well-being of the American polity, it is then of some moment that, of late, the very wealthy and those who advise them in planning for the inter-generational transfer of assets have focused on this problem of dissipation as the last frontier in the preservation of great fortunes. And the platform that these families are using to redress this problem - their crowning implement - is the family trust company.

Probate and Divorce in Tennessee

In a student note, Hailey H. David discusses why Tennessee should adopt a broader statute for revoking provisions in favor of an ex-spouse or the ex-spouse's relatives in wills and will substitutes.  Hailey H. David, Note, The-Revocation-Upon-Divorce-Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach, 39 U. Mem. L. Rev. 383 (2009).  

Here are excerpts from the introduction of his note:

Couples frequently fail to appreciate the impact a divorce has on their individual estate plans until after one of the partners dies. Questions then arise, often from other family members, about whether the deceased partner would have intended for his or her former spouse to take certain assets, such as those apportioned by will, life insurance policy, retirement plan, trust, or other estate planning devices.

Part I of this Note discusses the history of the revocation-upon-divorce doctrine with respect to probate assets, specifically as applied to probate assets in Tennessee. Part I also compares the Tennessee provisions with those of the UPC and argues in favor of adding language to the Tennessee Code to revoke provisions in a testator's will in favor of a former spouse's relatives. Part II of this Note considers the application of the revocation-upon-divorce doctrine to will substitutes such as life insurance policies, retirement plans, annuities, and trusts under both Tennessee law and the UPC. This section also sets forth an argument to add language to the Tennessee Code which changes beneficiary designations from a former spouse or a former spouse's relatives to an alternate beneficiary or the decedent's estate when a decedent dies without having changed the beneficiary designation after his divorce. In sum, this Note explains why and how Tennessee should expand its revocation-upon-divorce statutes to more accurately reflect modern family life. 

Consenting to A Posthumous Child

In a student comment, Amanda Horner discusses the range of approaches for determining if a parent consented to a posthumous child and suggests a method for courts to adopt when making this determination.  Amanda Horner, Comment, I Consented to What?: Posthumous Children and the Consent to Parent After Death, 33 S. Ill. U. L.J. 157 (2008).

Here is part of the introduction to her comment:

The confusion over whether a person has properly consented to parent a posthumous child is clear. States require anything from the marriage of the parents prior to the decedents' death to a written consent form, signed and dated much like a will. This comment advocates enacting a bright line to determine parental consent; just as sexual intercourse leads to consent to parent a child, the court should establish a similar provision that determines the consent of a posthumous child just as readily. Specifically, Section II of this comment will briefly discuss the technology that allows for the conception of posthumous children. Section III will discuss the cases which have thus far attempted to decipher consent and current law in conjunction with posthumous children. Finally, Section IV will discuss which method the courts should adopt when determining consent.

Same-sex marriages may no longer be performed in California

Earlier today (May 26, 2009), the California Supreme Court by a 6 to 1 vote agreed with the citizens of California that same-sex marriages are banned because of Proposition 8 which was passed in November.

However, the court also held that the approximately 18,000 same-sex marriages that were entered into between the court's earlier ruling allowing same-sex marriage and the passage of Proposition 8 are valid.

Note that although same-sex couples may no longer marry in California, they may still enter into civil unions.

For more information, see John Schwartz, California Supreme Court Upholds Ban on Same-Sex Marriage, NY Times, May 26, 2009. 

"The Richest Man in Town" Recently Published

"In his new book The Richest Man in Town (Business Plus, 2009), [W. Randall] Jones has come up with a list of the 100 richest people by town in the largest cities in almost every states in the U.S."  Business Week, Who Are the Richest People In Town?, May 19, 2009. 

The author used the stories of these individuals to create his Twelve Commandments of Wealth, which are contained in the book for aspiring readers.

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

Intestacy in the United Kingdom

The benefits of dying testate in the United Kingdom are very similar to those in the United States.  These benefits and a brief discussion of intestacy rules in the UK are discussed in the article below.  One interesting characteristic of intestacy rules in the UK is that the surviving spouse of a decedent with children will receive a set monetary portion of the deceased spouse's estate, rather than a percentage, before the remainder of the estate is divided between the deceased spouse's children. 

See Emma Wall, The dangers of failing to write your will, Telegraph, May 8, 2009.

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

Should a fiance/financee have rights?

Under the law of most, if not all, states, the non-legal status of being someone's finance or fiancee gives that person no rights upon the partner's death or disability.

As described in William Wan, A Life Lost, a Plan Derailed, A Fiancee Left in Limbo, Wash. Post, May 25, 2009, this basic principle can cause considerable heartache.

Here are the basic facts of the situation describe in the article:

• Sgt. Michael Hullender (United States Army) was engaged to Kyle Harper (a woman).
• Michael and Kyle considered marriage but elected not to get married.
• Michael was killed in Iraq in 2007.
• Kyle was not notified of his death by the Army; instead, she learned about it from his parents.
• Because being engaged does not create a legally recognized relationship, the Army treated Kyle as if she was unrelated to Michael so she received no casualty pay, no grief counseling, and had no input into his burial.
• Problems developed between Kyle and Michael's biological family members.
• One survey revealed that about 25% of soldiers have non-spousal significant others.

Special thanks to Alfred Brophy (Reef C. Ivey II Professor of Law, University of North Carolina) and his student Elyse Nieves for bringing this article to my attention.

Frozen Body Storage Tour

Alcor is one of the businesses which provides (hopefully) life extension by the use of cryonics.  According to its website:

 The Alcor Life Extension Foundation is the world leader in cryonics, cryonics research, and cryonics technology. Cryonics is the science of using ultra-cold temperature to preserve human life with the intent of restoring good health when technology becomes available to do so. Alcor is a non-profit organization located in Scottsdale, Arizona, founded in 1972. * * *

Cryonics is a speculative life support technology that seeks to preserve human life in a state that will be viable and treatable by future medicine. It is expected that future medicine will include mature nanotechnology, and the ability to heal at the cellular and molecular levels. * * *

Cryonics is an attempt to preserve and protect the gift of human life. The purpose of cryonics is to maintain life, not reverse death.

Should your travels take you to Scottsdale, you may make tour reservations:

Alcor offers free tours of its Scottsdale, Arizona facility on Tuesdays and Fridays at 2 pm. Tours typically last from 30-60 minutes and include viewing of our operating room, cooldown bay, and Patient Care Bay. Your tour will include discussion of the history of Alcor, the cryopreservation process, and answers to your questions.

Happy Memorial Day

With the sincerest appreciation to all who have died in our nation's service.

Follow this link for detailed information on Memorial Day.