Wills, Trusts & Estates Prof Blog

Top SSRN Downloads

Here are the top downloads from November 30, 2009 to January 29, 2010 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	231	Linton Family LLC and the Step Transaction Doctrine Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: December 2, 2009 Last Revised: December 1, 2009
2	188	A Beneficiary as Trust Owner: Decoding Section 678 Jonathan G. Blattmachr, Mitchell Gans, Alvina H. Lo, Milbank, Tweed, Hadley & McCloy LLP, Hofstra University - School of Law, Credit Suisse Private Banking, Date posted to database: November 25, 2009 Last Revised: November 26, 2009
3	122	The Core Nature of Fiduciary Accountability Robert Flannigan, University of Saskatchewan, Date posted to database: December 15, 2009 Last Revised: December 29, 2009
4	104	Pets Trusts: Fido with a Fortune? Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: December 6, 2009 Last Revised: December 6, 2009
5	99	Revisiting Dickman: Are Loans of Tangible Property Gifts? Joseph M. Dodge, Florida State University College of Law, Date posted to database: November 26, 2009 Last Revised: November 26, 2009
6	90	Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following a Divorce or a Marital Separation? Albert Feuer, Law Offices of Albert Feuer, Date posted to database: January 14, 2010 Last Revised: January 14, 2010
7	77	Policing the Good Guys: Regulation of the Charitable Sector Through a Federal Charity Oversight Board Terri Lynn Helge, Texas Wesleyan University School of Law, Date posted to database: November 24, 2009 Last Revised: December 6, 2009
8	60	U.S. Supreme Court Amicus Brief of Law Professors in Support of Respondents, Conkright v. Frommert, No. 08-810 Paul M. Secunda, Marquette University - Law School, Date posted to database: November 25, 2009 Last Revised: November 25, 2009
9	46	Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will Joseph Karl Grant, Capital University School of Law, Date posted to database: November 13, 2009 Last Revised: November 25, 2009
10	41	The Uniform Probate Code Authorizes Notarized Wills Lawrence W. Waggoner, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: November 13, 2009 Last Revised: December 13, 2009

Homestead Protection's Application to Forfeiture Resulting From Criminal Conduct

James Tawney (2010 J.D. candidate, Texas Tech University) has published his comment entitled Calling All Criminals, Our State Will Protect Your Crack House: Homestead Protection's Application to Forfeiture Resulting From Criminal Conduct, 2 Estate Plan. & Community Prop. L.J. 227 (2009).  

The introduction to the comment is below: 

As America continues to criminalize conduct, state courts struggle to hold on to the value that homestead protection represents.  At the same time, homestead protection becomes limited because of new laws prohibiting criminal conduct and the illegal use of property.  This comment addresses whether homestead protection should exempt property from forfeiture that has resulted from criminal conduct or illegal use of the property.  Upon addressing this issue, this comment justifies the need for states to adopt legislation that specifically allows forfeiture of the homestead.  To defend this assertion, Part III discusses the history and intentions behind both homestead protection and forfeiture of assets in America.  part IC examines cases highlighting the argument that states should not allow the seizure of a person's property protected under homestead exemption.  Part V focuses on case law holding that forfeiture law trumps homestead protection.  Part VI of the comment addresses how federal law applies to state homestead protection and why the federal courts allowed federal forfeiture statues to preempt state homestead protection.  In addition to the history of homestead protection and forfeiture, this comment uses case law to show that states must adopt legislation that prohibits the use of homestead protection as a defense against forfeiture resulting from criminal conduct. 

Celebrity Estate Planning Flubs Compiled Into a Book

Andrew W. Mayoras and Danielle B. Mayoras wrote the book Trial & Heirs: Famous Fortune Fights! ...and what you can learn from celebrity errors (Wise Circle Books 2009). 

The book's website claims that the book provides estate planning advice by showing the estate planning mistakes that high profile individuals have made.  According to reviews of the book on Amazon, the book is an easy read.  The following excerpt from an Amazon review summarizes some of the stories compiled in the book:

Jimi Hendrix died without a will, leaving his close brother Leon with nothing. Supreme Court Chief Justice Warren Burger wrote his own will, which at 176 words left out basic tax clauses that could have saved $450,000 in estate taxes. Princess Di relied on a "letter of wishes" to give away belongings, and her godchildren got shortchanged.

The publisher's description of the book is as follows:

The highly publicized estate battles of celebrities cast a bright spotlight on the importance of having the proper estate planning. You'll have a front row seat in the courtroom while Trial & Heirs: Famous Fortune Fights! replays the "tabloid drama" and points out what went wrong in these riveting cases.

Special thanks to Alexandra Eaker (attorney) for bringing this book to my attention. 

Addressing the Dilemma of Applying Public Policy to Inheritance Issues

Christopher T. Elmore (2010 J.D. candidate, Texas Tech University) has published his comment entitled Public Policy or Political Correctness: Addressing the Dilemma of Applying Public Policy to Inheritance Issues, 2 Estate Plan. & Community Prop. L.J. 199 (2009). 

A portion of the introduction to the comment is below:

This comment posits that before deeming an inheritance provision invalid as against public policy, a court must point to specific legal authority upon which to infer its interpretation of public policy, rather than reaching into the amorphous cloud of public policy as applied to inheritance.  Additionally, the court must ensure that its application of public policy in all situations, regardless of the medium of the controversial provision.  

By providing a history of the power of testation and an analysis of the inconsistent application of public policy across the states, this comment will analyze the various definitions the courts have provided, as well as the Supreme Court's guidance to solving the dilemma.  It will also analyze the other proposed solutions to dealing with the dilemma, before reaching the ultimate conclusion that the courts must seek actual inferential authority before declaring a provision invalid.  If such provision is declared invalid, then it must be invalid regardless of whether it is found in a contract, will, trust, or other medium.

Ethics and Malpractice Issues for Medicaid Planning

Patricia F. Sitchler (CELA, San Antonio, Texas) has published her article entitled Cutting Edge vs. Over the Edge: Ethics and Malpractice Issues for Medicaid Planning, 2 Estate Plan. & Community Prop. L.J. 175 (2009). 

An excerpt from the article is below:

The ethical duties of an elder law attorney have many of the same requirements as any other practice of law.  The attorney must identify the client, determine the scope of the representation, communicate with the client, maintain client confidentiality, and provide diligent representation.  However, there may be additional considerations.  For example, the attorney must consider the ramifications of communicating solely with an agent when a client's capacity is in question, and identify any conflicts of interest that may arise when spouses and agents are involved in the legal consultations.  This chapter will examine some of the ethical duties specific to an elder law attorney.

Estate Tax Lapse Energizes Anti-Estate Tax Group

According to the Wall Street Jounral, the 2010 estate lapse has re-energized the the American Family Business Institute, a small business trade group that has worked toward repealing the estate tax since the early 1990's:

The gap in the tax . . . has generated a “quick emergence of interest” in the cause and AFBI is pitching permanent repeal as a way to create jobs . . . . In the past, the group has targeted Senate races with TV campaigns, but this time it plans to get involved in House races as well.

See John D. McKinnon, Small Business Group Vows Major Campaign to End Estate Tax, WSJ, Jan. 6, 2010.

ABA-RPTE 2010 Spring Symposia

The ABA Section of Real Property, Trusts & Estate Law is sponsoring the 2010 Spring Symposia in Philadelphia on May 6-7, 2010.

A summary of the program is below:

Whether you are specializing in estate planning or real estate law, are a general practitioner with a wide ranging practice or are a seasoned professional looking to refocus your practice, the Spring Symposia gives you the expertise you need to be at the leading edge of your practice.

Attend this comprehensive CLE Symposia and see how RPTE can help you be a better lawyer. Maximize the value you receive from the time and money you invest in your continuing education. Attend the ABA Section of Real Property, Trust and Estate Law 21st Annual Spring Symposia in Philadelphia May 6 & 7, 2010 to:ƒ

• Hear leading experts discuss the latest legislative, judicial and regulatory developments, meet in small groups to exchange ideas with your peers ƒ
• Learn about today’s most important estate planning topics including: Congress and transfer taxes, captive insurance companies, and tips for success in IRS appeals
• Discover practical solutions to the significant real estate issues of the day including: trends and responses to the credit crisis, green buildings and law firm trends in the down economy ƒ
• Attend our Young Lawyers Institute: Practice Essentials, which will present two separate tracks for skills training in real property and trust and estate law ƒ
• Enjoy social events that will expand your network of valuable professional contacts

Thirteen Year-Old Boy Charged With Murdering Father is Primary Beneficiary of Father's Estate

A 13 year-old Wisconsin boy has been charged with shooting his father to death.  The father left almost his entire estate, valued at nearly $50,000, to the boy. The family claims that the boy suffers from autism, and a mental evaluation has been ordered.

If the boy indeed shot his father to death, this tragic story could turn into a "slayer statute" case. Slayer statutes prevent a killer from being a beneficiary of his victim's will.  The inheritance case may ultimate turn on whether the boy is found mentally competent.

See Channel 3000, Will Names Son Charged in Father's Shooting Death, Jan. 26, 2010. 

Special thanks to Melinda Gustafson Gervasi (attorney, Madison, Wisconsin) for bringing this to my attention. 

Don't Miss the 15th International Wealth Transfer Practices Conference

The IBA Individual Tax and Private Client Committee and supported by the IBA European Regional Forum and ABA Section of Real Property, Trust and Estate Law is co-sponsoring the 15th International Wealth Transfer Practices Conference in London on March 1 & 2, 2010.

A summary of the conference is below:

This is a 'must attend' event for international estate planners, tax and private client lawyers, advisors representing family-owned businesses, trust company officers, insurance specialists, in-house counsel working for trust companies and banks and compliance officers.

Topics include:

• Treaties: The Good, The Bad, and The Ugly I
•  beg your pardon I never promised you a rose garden: The international pre-nuptial agreement - myth or reality? 
• Trust vs. Foundation Private trust companies: friend or foe? 
• It's not cool to own your own Ferrari: planning with difficult assets 
• International Litigation: how to bust a trust, enforce or contest forced heirship and enforce judgments in different jurisdictions

The Importance and Emotional Impact of a Living Will

A recent New York Times article tells the story of one man's wishes regarding life-saving medical treatment.  The following excerpt captures the difficult situation that arose when the author disagreed with her father's decision:

I know what I want: I want to stop the insane cycle of hospitalizations and heroic life-saving treatments. It is not helping my father. He is getting sicker. He is dying. . . .

I am acutely tempted to answer, “Of course not — my father would not want heroic measures.” But I hesitate because I know it might not be true. 

Assuring that one's wishes regarding end-of-life treatment are followed is just one reason to have a living will.

See Alicia von Stamwitz,  An Ill Father, a Life-or-Death Decision, NY Times, Jan. 25, 2010. 

'Destroyed Community Property, Damaged Persons, and Insurers' Duty to Indemnify Innocent Spouses and Other Co-Insured Fiduciaries: An Attempt to Harmonize Conflicting Federal and State Courts' Declaratory Judgments'

Wiley E. Rice (professor of law, Saint Mary's University) has published his article entitled Destroyed Community Property, Damaged Persons, and Insurers' Duty to Indemnify Innocent Spouses and Other Co-Insured Fiduciaries: An Attempt to Harmonize Conflicting Federal and State Courts' Declaratory Judgments, 2 Estate Plan. & Community Prop. L.J. 63 (2009).  

Below are excerpts from the article:

Innocent fiduciary disputes generally, and innocent co-insured spouse actions in particular, generate a lot of conflicting rulings and outcomes within and between state and federal judiciaries.  More significant, even after state supreme courts have issued "definitive" innocent co-insured rulings, intra- and interstate court splits continue among state courts.  Similarly, intra- and inter-circuit conflicts exist amount the federal circuits.  Even more relevant, some legislatures in community property states enacted "innocent spouse" statutes.  Put simply, those statutes are designed to protect innocent co-insured spouses' insurable interests, after insured deviant spouses intentionally destroy community property.  Still, in light of those statutes, conflicting state and federal court rulings and declarations persist. 

. . . 

This article concludes by encouraging state and federal judges to apply more carefully settled, equitable doctrines to interpret insurance contracts and to award or deny innocent co-insureds petitions for declaratory relief.  Current and past courts have considered illusive public policy to interpret valid insurance contacts, and that practice helps to generate judicial conflicts. 

Trust Jurisdiction in Texas

Beneficiary sued Trustee for breach of duty in District Court.  District Court transferred the case to County Court at Law and issued an order removing Trustee from office, awarding damages, and granting other relief.  After a somewhat complicated lower appellate court decision, Trustee raised the issue of the County Court at Law’s jurisdiction for the first time when Trustee appealed to the Texas Supreme Court.

The Court agreed with Trustee that County Court at Law lacked jurisdiction and thus its judgment was void.  The Court began its analysis by explaining that subject matter jurisdiction cannot be waived and thus it was permissible for Trustee to raise the issue at this time.  The Court then studied Trust Code § 115.001 which grants district courts exclusive jurisdiction over trust matters except for certain situations not relevant to this case such as in counties where there is a statutory probate court.  The Court examined the Government Code to see if any other ground existed to permit County Court at Law to have trust jurisdiction and found none.  According, the County Court at Law’s judgment was void and it must transfer the case back to District Court.

Moral:  Except for the limited exceptions in Trust Code § 115.001(d), cases involving trusts are heard in district courts.

Carroll v. Carroll, 53 Tex. Sup. Ct. J. 245 (Tex. 2010).

New Digital Asset Planning Websites, But Beware of Potential Hazards

Adding to prior posts, the following is a list of previously unreported websites that offer assistance in sending parting messages or making one's digital assets available to loved ones after death:

• DataInherit
• Entrustet
• Parting Wishes
• My Last Email
• If I Die

While these websites have the potential to be very useful, they could also cause problems.  Aside from security concerns related to online data storage, at least one of these websites also offers do-it-yourself online will writing and drafting of other legal documents.  The following excerpt from Michael S. Rosenwald, Web sites let online lives outlast the dearly departed, Wash. Post, Jan. 25, 2010, points out a feature of one website that could also lead to potential problems:

With Deathswitch.com, if users don't respond to regular e-mails to confirm that they are still alive, the site gets increasingly worried about them, sending notes that nearly beg for a reply: "Please log on using the link below to demonstrate that you are still alive." If users don't respond within a set period of time, "postmortem" e-mails stored in their account are delivered.

The missives could be basic information, such as e-mail passwords sent to a girlfriend or banking data to relatives -- or more emotionally explosive notes that tell a spouse or friend what couldn't be said during life.

See Michael S. Rosenwald,Web sites let online lives outlast the dearly departed, Wash. Post, Jan. 25, 2010.  

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

Preliminary Estate Tax Action Taken in the Senate

According to the Wealth Strategies Journal, the Senate has taken the procedural steps necessary for putting HR 4154, an estate tax bill, on the Senate Calendar.  This could lead to bypassing the Senate Finance Committee entirely. The House approved the bill in December of 2009. 

See Marc Patterson, Estate Tax Update, Wealth Strategies Journal, Jan. 24, 2010; see also my prior posts here, here, and here.

Small Wealth Management Firm Succeeds During Financial Downturn

This month, The Trust Advisor Blog has featured two postings on Westwood Holdings Group, Inc. and its trust company Westwood Trust.  This Texas wealth management firm brought in $2 billion in new assets from Sept. 30, 2008 to Sept. 30, 2009 by actively seeking out new clients and using common trust funds, which have fewer associated charges and expenses for the client. 

The following regarding Westwood is taken from Jerry Cooper, Westwood Trust Shines Helping Advisor Pull In $2 Billion in New Accounts During Meltdown, The Trust Advisor Blog, Jan. 8, 2010:

When looking at Westwood it’s best to view Westwood in comparison to its peers. The quick take snap shot provided by Morningstar gives Westwood stellar financial grades. There are only three firms in the group which include Franklin Resources and T. Rowe Price that have “A” financial health ratings.

Westwood’s market cap is only $268 million while the market cap of T. Rowe Price is $14 billion and Franklin’s is $25 billion. So for a small company being managed efficiently they have done quite well in comparison to their peers. Westwood is also accorded a “B” rating in profitability from the Morningstar analysis. fer agent or fund supermarket fees that are normally part of a mutual fund fee structure.

See also Jerry Cooper, Westwood Trust’s “Common Trust Funds” Emerge as Bellwether Business Model for Advisors, The Trust Advisor Blog, Jan. 22, 2010.

Blog ranked #21 among blogs edited by law professors

The Wills, Trusts, & Estates Prof Blog ranked #21 in number of visitors and page views among blogs edited by law professors with publicly available SiteMeters for 2009.

To all my readers, I greatly appreciate your support and contributions.

Court to Hear Joe Jackson's Request for Monthly Allowance from Son's Estate

This week the Los Angelos Superior Court judge presiding over the probate and administration of Michael Jackson's estate will conduct a hearing on Joe Jackson's request for a monthly allowance from his son's estate.  The estate opposes the monthly allowance of $15,000 because Joe Jackson was not dependent on his son nor was he included in his son's will.

See Reuters, Jackson Estate Opposes Allowance for Father Joe, Jan. 22, 2010.  Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this to my attention. 

Also, for a picture gallery of art commissioned by Jackson, including the painting pictured here, see Telegraph.UK, Michael Jackson art: paintings by David Nordahl and portraits and sculptures by other artists.

ABA offering free web seminar for Law Students: Ensure the Pet's Continued Care

The ABA is offering complimentary web-cast registration for law students for the seminar entitled Ensure the Pet's Continued Care: Advising Your Clients about Planning for Their Pet's Care which will be held on February 2, 2010.

Law students may register by following this link: http://www.abanet.org/rpte/eCLE/programs/2010/RP0TPT/reg-student.html.

Debunking Texas' Community Debt Myth

Tom Featherston (The Mills Cox Chair of Law, Baylor University) and Allison Dickson (J.D. 2007, Baylor University) have published their article Marital Property Liabilities: Dispelling the Myth of Community Debt, 73 Tex. B.J. 16 (2010). 

The following is the introduction to the article:

The time has come to debunk a myth that has pervaded Texas court decisions and legislation for more than 40 years. We must all face the truth. Once and for all: There is no such thing as “community debt.”

This article gives a brief overview of the basic tenets of Texas marital property law and discusses the legislative scheme for handling marital liability debts. Importantly, it addresses the source of the mythical concept that is community debt and identifies existing statutes that perpetuate the community debt misnomer. Finally, this article calls for Texas courts and the Legislature to incorporate current law into opinions and legislation so as to eliminate confusion among practitioners and the public alike.

Tennessee Woman Charged with Death of Two Husbands, Will Missing

The following is a summary of a Tennessee woman's "trail of death," which involves death by cattle stampede, a missing will, and multiple murder allegations:

• Raynella Dossett Leath's first husband died in 1992 from what seemed to be an accidental domestic cattle stampede, suspicious at the time for insurance fraud reasons. 
• Mrs. Dossett Leath was later charged with attempted murder in a bizarre set of facts surrounding a love child of her first husband.  She was found guilty of lesser charges and served probation time.
• Shortly after completing the probation, Mrs. Dossett Leath's second husband, whom she married six months after her first husband died, was found dead with a gunshot wound.
• Mrs. Dossett Leath cremated the body of her second husband the day after his death, despite allegations that he wanted to be buried and owned a burial plot near his parents. Meanwhile, a missing will and deeds meant that Mrs. Dossett Leath would inherit all his property.
• Mrs. Dossett Leath was eventually charged with murdering her second husband, whose body contained unprescribed painkillers and sedatives.  The resulting trial ended with a hung jury and a second trial began earlier this month.
• Meanwhile, the charges against Mrs. Dossett Leath prompted a re-investigation into the death of her first husband, which revealed suspiciously high morphine levels and minor injuries from the stampede.  In 2006, Mrs. Dossett Leath was charged with the murdering her first husband and a trial will start in August.

See Shaila Dewan, Tennessee Woman Accused in Trail of Death, NY Times, Jan. 23, 2010.