Wills, Trusts & Estates Prof Blog

Funeral Homes For Pets--Nothing "Ruff" About It

Bob Walczyk owns two funeral businesses in Green Bay.  One home exclusively cremates humans, and one is for pets. Interestingly enough, when people come to the funeral home for humans, they question the price, but when people come home to the funeral home for pets, they will pay whatever it takes. 

Since the Walczyk's family launched Forever Friends, the pet funeral home, their sales have risen by 524%. Many others have similar businesses dedicated to memorializing pets.  There are approximately 700 such businesses nationwide--including funeral homes, crematories and cemetaries. 

Nobody has been able to point out exactly what demographic is responsible for the industry's financial boom, but some pet funeral directors believe it is baby boomers who become especially close to their pets after spouses die or children leave home. 

The growth in business could also be due to the growth in burial options for pets. A successful pet funeral business is based on mirroring a human funeral home.  

See There's Never Been a Better Time to Be A Dead Pet, Bloomberg Businessweek, Sept. 7, 2012. 

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.   

Cassini's Widow Sues Her Attorney

The widow of Oleg Cassini, Marianne Nestor Cassini, has brought suit against the attorneys that litigated a dispute over the her late husband's will. The story here begins with Cassini's first marriage. In his first marriage, he had two daughters, Antoinette Daria and Christina to his first wife Gene Tierney. When the first marriage ended, Cassini agreed in his divorce decree to divide his estate between his two daughters equally. When he died in 2006, his daughter "Christina filed a claim in Nassau County Surrogate's Court arguing tht she was entitled to 25[%] of her father's estate under the divorce agreement." However, this conflicted with Cassini's will, which breached the terms of the original divorce agreement. Ms. Cassini argued that the will superseded the divorce agreement and so it should control. In this case, the court agreed with Christina, and she was able to obtain $13 million from her father's estate.

Marianne Nestor Cassini appealed and filed a lawsuit against several parties including her attorneys from Putney Twombly Hall & Hirson and the firm itself. She also included Nachsin & Weston, which were the original attorneys to look at the case. Ms. Cassini sought $13 million in damages or what she would have received had her attorneys not committed malpractice. The basis of her claim resided on the fact that her attorneys did not seek to challenge Christina's claim on the fact that she filed after the statute of limitation had run. Some doubt that Ms. Cassini will win this dispute. Christina filed her claim about one year after the death of her father, which means that it was timely filed. Ms. Cassini is probably wrong about when the statute begins to run. The statute of limitations would not begin to run until Cassini had died. Even though his will was written to breach the divorce decree he could have changed it before he died.

See Abby Ellin, Fashion Designer's Widow Sues Lawyers Over Inheritance Dispute, ABC, Sept. 7, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.   

Students Loans After Death

Upon the death of a person with federally insured student loans, the payments on those federal student loans are waived. This means that the estate does not need to make any payments on the loans. In order to stop the payments, the executor of the estate might need to send a copy of the death certificate to the lender. This process can be complicated and it might take some time to complete the process. However, the important thing that a person needs to understand is that federal loans are discharged upon the death of the borrower. 

See Dave Ramsey, What Happens to Student Loans Debt After Death?, Fox Business, Aug. 28, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Katherine Jackson Requests Audit of Her Deceased Son's Estate

Katherine Jackson's lawyers submitted legal documents aimed at performing an extensive audit of Michael Jackson's estate. Her lawyer, Perry Sanders, expressed that they would like to see the details of where the money is going because the benficiaires should be able to see what their money is paying for. 

The legal documents request that ""...representatives John Branca, John McClain and counsel for the estate of Michael Jackson produce for inspection and audit all supporting documents for the Second Account Current and Report of Status of Administration and Petition....'"

Lawyers for Michael Jackson's estate object to the request because it is vague and ambiguous.  "all supporting documents" could include many confidential documents.  Most of the contracts that the estate has entered into are sealed because they contain trade secrets or other privileged information. 

Judge Mitchell Beckloff will rule on what documents the estate should hand over to Katherine Jackson. 

See Katherine Jackson Wants An Extensive Audit Of Michael's Estate, RadarOnline.com, Aug. 23, 2012. 

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.   

Article on Posthumous Reproduction

Cynthia E. Fruchtman recently published his article entitled Tales From the Crib: Posthumous Reproduction and Art, 33 Whittier L. Rev. 311 (2012).  The introduction from the article is below: 

Assisted Reproductive Technology (ART) allows for a multitude of choices for conception, ranging from artificial insemination to surrogate parenting after the death of a biological parent through the extraction of eggs and sperm from the deceased for procreative purposes. Nevertheless, there is sufficient societal stigma attached to infertility that some people may intentionally conceal their use of ART. Others simply may not realize the relevance of having stored sperm or ova or embryos as they make other life decisions. Therefore, people cannot be expected to volunteer information about their experiences with ART.

Consequently, it is incumbent upon doctors, lawyers, psychologists, and other professionals to explore and document the wishes of their clients or patients regarding posthumous reproduction. This documentation should be reviewed at every opportunity, especially when advising to advance health care directives (sometimes referred to as living wills), family or estate planning or divorces, or any other process in which procreation is, should be, or could be addressed.

$450,000 Rothstein Yellow Diamond

Kim Rothstein, the wife of the jeweler Scott Rothstein, is said to have hidden a rare 12.08 carat yellow diamond from federal authorities that is estimated to be worth about $403,012. That was the stone's worth when her husband bought it for her in 2008. Now, the diamond is said to be worth about $450,000. Mrs. Rothstein has also been accused of hiding more than $1 million worth of jewelry from federal law enforcement, including the yellow diamond.

See Tonya Alanez, Missing Rothstein Yellow Diamond Valued at $450,000, SunSentinel, Sept. 6, 2012.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Report From AICPA on the Uncertainty of Tax Law

Jeffrey A. Porter (Vice Chair of the AICPA Tax Executive Committee) recently testified before the U.S. House of Representatives Committee on Small Business. His testimony discussed the uncertainty of potential changes in our tax code and its effects on small business owners. Provided here is a link to his written testimony.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.   

CLE on the Basics of Estate Planning

The Real Estate, Probate & Trust Law Section of the State Bar of Texas will co-sponsor a 6.75 hr Live CLE via webcast, including a 3.5 hour ethics component, on January 25, 2013 entitled the Building Blocks of Wills, Estates and Probate. The course will cover a variety of topics, including:

• Basic Estate Planning 
• Elder Law Planning and Issue Spotting 
• Starting an Estate and Trusts Law Office
• Probate Procedures and Alternatives 
• Administration Issues

Clapton Places Painting For Auction

Eric Clapton, the legendary rock legend star, placed an abstract painting for auction and might be able to sell it for $19 million. The painting that he placed for auction is called "Abstraktes Bild (809-4)." While Clapton hopes to sell the painting for about $19 million, he could receive as little as $14 million. Regardless of what they sell the painting for, Clapton stands to make a profit because he purchased the painting for $3.4 million in 2001. 

See Eric Clapton Putting Abstract Painting Up For Auction, MSN, Sept. 13, 2012.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

Study on Paternal Age As Related To Schizophrenia and Autism

A recent study found that older men are more likely than young ones to father a child who could develop autism or schizophrenia because random mutations become more numerous as males get older. 

The study that tracked this finding was published online in the journal Nature.  It is the first study that provides scientific evidence for the increase in autism conditions. The study supports the argument that the increasing number of autism cases over recent decades is partially due to the increasing age of average fathers.

Experts noted that the finding was not a reason to forgo fatherhood later in life, but it may have some influence on reproductive decisions.  The study also contradicts the previous assumption that the mother's age is the most important factor in whether a child will have developmental problems.  

For more detailed information about how the study was conducted, please click here. 

See Benedict Carey, Father's Age Is Linked to Risk of Autism and Schizophrenia, The New York Times, Aug. 22, 2012. 

A Show About How Celebrity's Families Deal With Celebrity Estates

The Will: Family Secrets Revealed is a show on Investigation Discovery that details what happens to famous people's estates after they die.  The third season begins on Thursday, October 18 at 9 p.m. ET and it is set to feature stars such as Ritchie Valens, Jerry Garcia, Gary Coleman, and Tammy Wynette. For more details about each of these episodes, please click here.

See THE WILL: FAMILY SECRETS REVEALED Gets a Facelift For Season Three, Featuring Celebrity Stories and Famous Family Feuds, PR Newswire, Sept. 12, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.   

Jacksons Accuse Concert Promotor AEG of Being Involved With Michael Jackson's Death

Concert promoter AEG is in the spotlight after confidential emails revealed their involvement in Michael Jackson's final days. The emails generally indicate that AEG demanded that the show go on despite their knowledge of Michael Jackson's weak state.  

Katherine Jackson and other family members sued AEG, blaming them for controlling and failing to supervise Dr. Conrad Murray.  AEG denies both accusations and assert that Murray was Jackson's personal physician and the only one responsible.  

In response to the published emails, AEG claims that they do not paint a complete picture.  AEG has gone even further to attack the Jackson family for leaking those emails to the media in spite of court orders prohibiting them from publicizing those court documents. 

Katherine Jackson and her legal team deny publicizing the emails.  Businessman Howard Mann, Katherine's business partner, claimed responsibility for disclosing the emails to media.  

Ultimately, the judge who hears the case will decide whether there is enough evidence for the case to go to a jury...if it even makes it that far.  

Just because AEG knew of Jackson's condition and encouraged him to perform anyways, they are not necessarily legally responsible.  Dr. Murray was the central figure, assuring managers of AEG that Michael was able to perform.  If the Jackson family can convince the judge that AEG was pushing Dr. Murray to get Jackson to perform at all costs, AEG could still be liable in part. 

While AEG may escape liability in this lawsuit, they are likely in serious legal trouble with a $17.5 million lawsuit by insurer Lloyds of London.  Lloyds of London issued an insurance policy to AEG to protect it in case Jackson could not perform and now they are claiming that AEG didn't fully disclose Jackson's medical condition when they took out the policy.  These emails that have been revealed indicate that AEG knew more than disclosed to Lloyds. 

See Danielle and Andy Mayoras, Is Promotor AEG Responsible For Michael Jackson's Death, Forbes, Sept. 10, 2012. 

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.  

Article Proposing Uniformity in Inheritance Rights of Adult Adoptees

Jackie Messler (J.D. 2012, Marquette University Law School) recently published her article entitled The Inconsistent Inheritance Rights of Adult Adoptees and a Proposal For Uniformity, 95 Marq. L. Rev. 1043 (2012).  The introduction to the article is below: 

In the areas of trust and will interpretation, states vary on how to interpret class gifts that include language such as “issue,” “heirs,” and “children.” This variance is one motivation for people to undertake drastic measures such as adult adoption. For example, Father and Mother set up a trust to benefit their children, X, Y, & Z. Z dislikes his siblings but has no spouse or children. Z wants to make sure his share of his parents' trust does not go to his siblings. Z adopts a good friend of his, T, who is an adult. Jurisdictions vary on how to interpret T's interest and vary on T's ability to benefit from Z's parents' trust. Some statutes only restrict an adult adoptee's ability to inherit from a third party when the testamentary documents specifically prohibit such inheritance. Other statutes set a strict age limit, disallowing an adult adoptee to inherit from a third party when they are adopted after age eighteen. Although the example illustrates one motivation for adult adoption, most times an adoption is a result of a close and loving relationship. The goal of the adoption is to make the person a genuine member of the family. As it stands, states do not uniformly treat adult adoptees as genuine members of the family. A default rule that uniformly recognizes the adoptee's inheritance rights generally aligns with the adoptor's motivation for the adoption.

There are several different theories on how to remedy this inconsistency. One solution would change the current definition and meaning of “family” in the law. The so-called “functional” approach attempts to define the familial relationship by actually looking at the nature of the relationship between parties. Another solution would allow people to designate a beneficiary at law, eliminating the need to turn to drastic measures, such as adult adoption. A third solution would be to pass a uniform law giving an adult adoptee the status of a natural child. Uniformity would help to fulfill the goal of undertaking the adoption in the first place--to take in the person as a genuine member of the family.

In this Comment, Part II will discuss the history of adoption and give a background on how adult adoption differs from “regular” adoption. Part III will discuss the different motivations parties would have for adult adoption, ranging from inclusion in a class gift to denying standing to collateral relatives who seek to challenge a testamentary disposition. Part IV compares the current inheritance rights of adult adoptees in Wisconsin, Illinois, Indiana, and Minnesota. Part V outlines solutions and proposals for solving the inconsistency of adult adoptees' inheritance rights across jurisdictions. Finally, Part VI concludes with a summary of the main issues and the proposals to remedy those issues.

Where To Store Your Personal Treasures

Every person reading this probably has some form of treasure, a valuable personal item, whether it be jewelry or family photos. There a variety of options that a person can choose from when it comes to storing these valuable objects. Unfortunately, there is not a completely secure option to choose from. For example, if a person chooses to place his or her valuables in a safe-deposit box, there is always a risk that the bank's employees could misplace the owner's personal items or these items could vanish during bank mergers. In fact, this past year about $15 million in personal property went missing in safe-deposit boxes.

It is important to remember that unlike personal accounts, the contents of safe-deposit boxes are not insured by the FDIC. To prevent a loss that might occur, a person might want to consider purchasing home owner's insurance to cover the costs should the client's property go missing. On that note, a person might also want to consider getting his or her valuable items appraised, making an inventory of all of the items that a person places in the safe-deposit box, and taking photographs of items. A person might also want to consider placing items in waterproof containers before they place those items in a safe-deposit box. Finally, a person might want to continue paying his or her rent on time to prevent that person's items from reverting to the state.

In contrast to tangible items, some professionals think that home safes are perfect for important documents, such as wills. Experts strongly recommend that a person consider purchasing a safe and bolting it to the floor or wall for added security. 

See Rachel Emma Silverman, How to Make Safes Safer, The Wall Street Journal, Sept. 10, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.  

Judge Declines to Dismiss Lawsuit Against Ashley Furniture

The estate of Humphrey Bogart filed a suit against Ashley Furniture, claiming that the furniture store is using the late actor's name in the name "Bogart Blue," which infringes upon their rights to control the actor's namesake. Now, a federal judge has refused to dismiss the lawsuit against the furniture store meaning that this litigation will continue. The Vice President of Ashely Furniture, Lisa Adair, has argued that the company used the name Bogart in reference to the city of Bogart, Georgia, and not the famous actor. While the court has allowed the litigation to proceed, the attorney for Bogart's Estate has yet to provide any evidence to suggest that the furniture store's use of the late-actor's name "has caused consumers confusion, diluted trademarks or publicity rights, or was a deceptive trade practice but was moving the case along anyway."

See Furniture Today Staff, Lawsuit Continues Over Ashley's Use of 'Bogart' Name, Furniture Today, Aug. 30, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Lawyer Accused of Using Forged Durable Power of Attorney to Murder Her Father

A lawyer from Missouri has been charged with First-Degree Murder of her father while he was staying at his vacation home. The lawyer has pleaded not guilty to the charge. What makes this case interesting is that the the state has accused of the attorney of murdering her father by forging her father's durable power of attorney so that the doctors would have no choice but "'to deny him life sustaining medical treatment.'" The attorney, Susan Elizabeth Van Note, owns a firm in Kansas City, Missouri.

See Martha Neil, Mo. Lawyer Charged in Dad's Murder Accused of Using Forged Health Care POA to Deny Him Treatment, ABAJournal, Sept. 10, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention. 

Battle for Nate Dogg's Estate

A year has passed and the estate of Nate Dogg is still engaged in a dispute between his children and his mother and widow. In dispute here is about $200,000 in real estate and much more in the royalities from his music catalog. The problems here have occurred because Nate Dogg did not leave a will instructing how his estate should be ministered. The lack of a will has given Calvin the opportunity to take control over the estate. Recently, Calvin filed some paperwork to have Holmes added as the co-administrator. Nate Dogg's children are opposed to having Nate Dogg's wife, Layota Calvin, and his mother, Ruth Holmes, control the estate. The children have tried to name an attorney to become the administrator but their attempt failed.One of his daughters, Auncrane Hale, stated that all his mother and widow want are the money from the estate. He claimed that if they control the estate, they will not give the children any money at all.

See Cyrus Langhorne, Nate Dogg's Family Ignite Messy Battle Over Estate, "Grandmother is Only Involved - For The Money", Sohh.com, Sept. 3, 2012.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention. 

Article on Digital Asset Legislation

Tyler G. Tarney (Capital University Law School, J.D. 2012) recently published his article entitled A Call For Legislation to Permit The Transfer of Digital Assets at Death, 40 Cap. U. L. Rev. 773 (2012).  The introduction the article is below: 

 

“A quiet revolution is quickly coming to the probate and estate planning world.” The Internet has fundamentally changed the way society communicates and expresses itself, and there is now tremendous value lying in one's e-mails, social networking accounts, blogs, and other digital assets. Younger generations that embraced the Internet and created this value are getting older and confronting death. Unfortunately, the same technologies that are driving the digital age are creating new legal problems for estate planners. 

As society's online presence becomes increasingly complex, protection of online assets at death is an emerging concern. “[F]amily members, estate planning attorneys, and . . . service providers are increasingly grappling with what happens to [individuals'] digital information when [they] die.” “In one form or another, the right to pass on property to one's family . . . has been part of the Anglo-American legal system since feudal times.” Despite this growing value of digital assets, given the current state of the law, “[s]imply leaving cyber property in a will . . . is often going to be inadequate.”

The traditional understanding to keep unique, complex passwords for each account and to change them frequently becomes counterproductive and difficult to manage as the number of accounts rapidly increases. When heirs desire access but are not in possession of log-in information, service providers are “in exclusive control of the account content.” Without a remedy, heirs are forced to consult the provisions in the terms of use regarding the disposition of the account holder's account contents at death. However, the terms drafted by service providers are highly restrictive to maintain the privacy of their users.

Considering the current complexities in retrieving digital assets at death, legislation mandating transferability and timely compliance by service providers upon legally-recognized authorization of the decedent is necessary. Part II of this article underlines the value in digital assets and the policy concerns motivating service providers in drafting these restrictive terms, making the disposition of these assets at death so complex. Part III examines the solutions offered by state statutes, service providers, and the current market, and explains how these solutions are insufficient and shortsighted. Ultimately, Part IV explains why a uniform law permitting the transferability of digital assets upon legally-recognized intent is advantageous and how it resolves the competing concerns of account users and service providers.

 

Settlement Ends Litigation Over "Thriller"

John Landis, director of "Thriller," and George Folsey Jr., producer of "Thriller," sued Michael Jackson and his company in January 2009.  They claimed that Jackson still owed them money for work they did on the 14-minute "Thriller" video.

Landis also claimed that he owned at least 50% of the "separated rights' to the video, reasoning that this entitled him to "dramatic rights" derivations, including stage adaptations.  Before Jackson's death, Jackson made a deal with the Nederlander Organization to produce a musical version of "Thriller."  Landis believed that he would be due a cut of such a musical.  The production that Nederlander was going to be a part of never launched, and instead, the estate launched the Cirque du SOleil show, "Immortal."  

On Friday, the estate released a statement indicating that the estate reached a settlement with Landis and Folsey Jr. on their claims, so litigation over "Thriller" should be concluded.

See Michael Jackson Estate Settles Lawsuit Over 'Thriller' Video, eurweb.com, Sept. 4, 2012.  

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention. 

Convert Cash to A Life Insurance Policy

Many high net worth clients are more concerned with loss than gain when looking at asset protection and estate planning.  The focus is on loss due to the increased risk of litigation, decrease in earnings, stalled or negative investments, and the uncertainty surrounding estate taxes at the end of this year.  

To protect assets in this economic climate, it may pay to convert liquid assets into assets that are creditor-protected. In many states, including Texas, life-insurance is protected from creditors by statute.  These statutes allow an individual to convert exposed assets such as cash to assets protected by a death benefit.

There is more liquid wealth out there than there ever has been because people perceive the stock market and real estate market to be unstable.  Why convert the liquid wealth? A recent report on banks indicates that they remain at risk of imminent failure. Furthermore, in addition to being vulnerable to creditors, cash is producing next to zero returns.  

If individuals decide to convert cash to policies, the following are good policies to consider: "'full/high cash value in year one, No surrender charges or lagging cash value, a high death benefit to prove up the legitimate business purpose, ability to access cash value through policy loans and to collateralize, ability to allocate to a 'segregated account' that protects your client from real or perceived solvency risk of the carrier itself.'"

When looking to make this conversion, individuals should consider the timing, ensure that he or she is an insurable policy owner, and consult an attorney for details of his or her state's statute.  

See Ike Devji, Life Insurance as Asset Protection, LifeHealthPro, Sept. 1, 2012.