Wills, Trusts & Estates Prof Blog

Concerns About Privacy Arise In Digital Assets Debate In New Hampshire

As I have previously discussed, the state legislature of New Hampshire has introduced legislation that would give control of a person's digital assets to the executor of the estate. While this piece of legislation could help many people, it met with a great deal of controversy. In fact, "[a] majority of the House Judiciary Committee recommend that the house kill the bill." Recently, the house narrowly voted to give the bill's sponsor an opportunity to amend the bill to establish a study that would analyze the benefits and consequences of the legislation. 

Some of the legislators believe that the state should have no part in determining who should control a user's account and that Facebook and other similar websites should be able to contract with its users. Other legislators contend that there are privacy issues involved with digital assets. For example, would you as a Facebook user want the executor or a personal administration to sift through your personal Facebook messages or emails. As it currently stands only five states have legislation that addresses concerns with digital assets after death.

See Norma Love, Who Controls Your Facebook Page After Death? N.H. Lawmakers Examine It, Seacoast Online, Jan. 31, 2013.

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

Happy Groundhog Day!!

Best wishes for a Happy Groundhog Day!!

Article on What Happens To Social Media Assets Postmortem

Kristina Sherry (J.D. Candidate for 2013, Pepperdine University School of Law) recently published an article entitled, What Happens to Our Facebook Accounts When We Die?: Probate Versus Policy and the Fate of Social-Media Assets Postmortem, 40 Pepp. L. Rev. 1 (2012).

In the vast cyber-universe of millions of websites, billions of e-mails sent daily, and approximately twenty hours worth of amateur video uploaded to YouTube in the time it takes you to read this sentence —collectively sucking our psyches into digital excursions like baby pandas sneezing, small children shimmying to Beyoncé, and increasingly nonsequitur Internet memes—there are few things creepier than the dead Facebook friend. 

Yet, according to projections, more than 580,000 Facebook users will die in the United States this year, leaving just as many friends and family members wondering how to best handle a loved one’s persisting postmortem digital presence. Without third-party intervention, a dead Facebooker’s “profile” page will be frozen in time like a pixilated Dorian Gray, colored by iPhone photos, “pokes,” and “LOL!”s—possibly for an eternity. For some, a dead friend’s or family member’s abandoned profile might serve as a beautiful and appropriate reminder of its creator. But for others it might trend closer to a macabre eyesore in need of termination. 

Hillsborough Estate Listed for $100 Million

Christian de Guigne IV is selling a 47.4-acre estate in Hillsborough, California for $100 million.  Chrisian's grandparents built the house and it has been in the same family for 150 years.  The 16,000-square-foot Mediterranean-style home includes seven bedrooms, 8.5 bathrooms, a ballrom and a flower-arranging room.  There is also a servants' wing with four maids' rooms and two chauffers' rooms. The house is on a hilltop at the end of a 4,500-foot driveway and has views of San Francisco to the north, the Bay Bridge, the hills of the East Bay and the San Mateo Bridge.  

See Sarah Tilton, Bay Area Boom: A Large Hillsborough Estate--With Occupant--Lists for $100 Million, The Wall Street Journal, Feb. 1, 2013. 

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

Article on Informal Carers and Private Law

Brian Sloan (College Lecturer in Law, Robinson College) recently published his article entitled Informal Carers and Private Law Introduction, University of Cambridge Faculty of Law Research Paper No. 30 (2012).  The abstract from the article available on SSRN is below: 

This paper forms the introductory chapter of Informal Carers and Private Law (Hart, 2012), setting out the scope of the book and justifying its focus on private law.

Every day, large numbers of altruistic individuals, in the absence of any legal duty, provide substantial and essential services for elderly and disabled people. In doing so, many such informal carers suffer financial and other disadvantages. This book considers the scope for a "private law" approach to rewarding, supporting or compensating carers, an increasingly vital topic in the context of an ageing population and the need for savings in public expenditure. Adopting a comparative approach, the book explores the recognition of the informal carer and his or her relationship with the care recipient within diverse fields of private law, from unjust enrichment to succession. Aspects of the analysis include the importance of a promise of a reward from the care recipient and the appropriate measure of any remedy. In considering the potential for expansion of a "private law" approach for carers, the book addresses the fundamental and controversial question of the price of altruism. 

Gift Giver's Remorse

If you made gifts at the end of the year to avoid any changes in the gift tax exemption, you weren't the only one surprised when the fiscal cliff passed keeping the gift tax extension at the same level.  Most gifts may have been made in trust with some controls attached to them, but if you didn't do that, you might still be able to fix it with some advice from your estate planner.

If you transferred more than you now believe you should have and you cannot undo it, the bright side is that the assets you transferred will probably continue to appreciate in value and they are now out of your estate.

See Robert W. Wood, Buyer's Remorse? How About Year-End Gift Remorse!, Forbes, Jan. 29, 2013.  

Five Pitfalls Overlooked in Estate Planning

There are many different steps in the estate planning process, but too often these five areas in the estate planning arena are overlooked. Clients will be thankful if advisors take the time to address these five estate planning pitfalls. 

• Make sure legal documents are accessible 
• Request beneficiary designation forms
• Have your client evaluate the beneficiaries circumstances 
• Clients owning a business should formulate a succession plan
• Clients need to take the time to review and update their estate plan  

First, an attorney can be delayed in fulfilling a client’s wishes because he lacks access to important legal documents. Therefore, a client might want to keep important documents in places that are accessible to those who need them to prevent this delay. Not keeping documents accessible can cost heirs both time and money. Second, attorneys might want to evaluate assets outside of the estate. An attorney might consider requesting and updating their client's beneficiary designation forms . Not doing so can cause problems because a beneficiary form is honored regardless of the date. Third, clients might want to consider the beneficiaries' circumstances to make sure that their needs are met. For example, a beneficiary with financial problems would benefit from a spendthrift clause. Arranging to accommodate beneficiaries in advance can prevent future drama. Fourth, if your client owns a business, a well formulated succession plan can avoid disasters and save his business. Most importantly, regardless of a client's busy schedule he or she might want to make time to review and update his estate plan frequently to make sure it's current. 

See Erik Hartstrom, 5 Estate Planning Black Holes, Life Health Pro, Jan. 31, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention. 

CLE on Solo Estate Planning Practitioners Following The Passage of ATRA

The ABA Section of Solo, Small Firm and General Practice Division, Commission on Law and Aging, and Senior Lawyers Division will host a 1.5 CLE credit hour webinar entitled, The Solo Practitioner and Small Firm's Guide to the New Frontier in Estate Planning from 12:00 p.m. to 1:30 p.m. central standard time on Wednesday, February 27, 2013. Provided below is a description from the ABA website:

The American Taxpayer Relief Act of 2012 (2013) makes permanent the $5 million inflation adjusted estate tax exemption and portability (which permits a surviving spouse to use a prior deceased spouse's exemption). For the vast majority of Americans the federal estate tax is now irrelevant. This will change the face of estate planning (and for professionals the practice of estate planning) in dramatic ways. Planning that most clients have done needs to be evaluated and perhaps changed. The way wills are drafted will change. The use of life insurance and insurance trusts will never be the same. With the fear of the federal estate tax gone practitioners can no longer charge to the same degree for estate tax planning work. Efficiency and practice management are more important than ever to profitably serve fee sensitive clients. This webinar will explore the new estate planning paradigm and offer practical insights into how you can modify your documents and planning to work best in this brave new estate planning world.

Nickel From 1913 Will Likely Go For Millions

In Virginia, a rare nickel will likely earn more than $2 million for its owners. The coin apparently has an interesting past. The coin was minted in 1912 and illegally cast in 1913.  The coin was reportedly the product a man named Samuel W. Brown. Brown reportedly altered the dye for the five coins to add a false date. It was discovered in a car accident in 1962 that took the life of its owner,  George O. Walton. Walton was a coin collector and he purchased the coin in 1942 for less than than $4,000. Upon its discovery, one of Walton's heirs Melva Givens inherited the coin, coin collectors informed Givens that they believed that the coin was a fake. It was then forgotten for 30 years because Givens placed in the closet thinking that the coin was worthless.

The current coins owners are four siblings from Virginia, the children of Melva Givens. Since the American Numismatic Association World's Fair of Money determined the identity of the coin, the Waltons donated the coin to the Colorado Springs Museum, who placed the coin on exhibit.

See Steve Skzotak, Nickel From 1913 Likely To Fetch Millions At Auction, ABC, Jan. 31, 2013.

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

Super Bowl of Charitable Giving

Even though the Baltimore Ravens and San Francisco 49ers have not faced off in the biggest professional football game of the year, the fans of Baltimore can already claim a small victory. The citizens of Baltimore are apparently more generous when it comes to charitable giving. According to The Chronicle of Philanthropy,"[p]eople in the Baltimore metropolitan area claimed a median charitable contribution of $2,683 in 2008, according to The Chronicle's  analysis of federal tax data. Based on that figure, residents in the Charm City gave roughly 4.8 percent of their discretionary income to charity that year." In comparison, the City of San Francisco only gave 30.9 percent of its residents of discretionary income. Of course, that's just when we take a look at the giving habits of the residents of the NFL cities. Head to head, the San Francisco 49ers' Foundation have given much more than the Baltimore Ravens' Foundation, a staggering $2.4 million to only $317,000.

However, if we were really counting numbers the champion would be the Atlanta Hawks. They are easily the most generous NFL city. Atlanta's citizens gave "5.9 percent of their income to charity."

See Emily Gipple, Baltimore vs. San Francisco: Who's Most Generous, The Chronicle of Philanthropy, Jan. 31, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Man Accused of Poisoning His Fourth Wife To Be Re-tried for Poisoning His Third Wife

A 59-year-old former Vienna funeral director, Robert Girts, has been charged with murdering his third wife and is now in jail accused of poisoning his fourth wife.

His fourth wife claims that she started feeling ill after Girts began bringing coffee to her workplace. Girts's murder convictions were twice overturned in the death of his third wife, who died after potassium cyanide was sprinkled on her pasta salad.  Prosecutors are preparing to retry Girts for a third time and based on the claim of his fourth wife, his bond was recently revoked at an emergency hearing in Cuyahoga County Common Pleas Court.

See Tue., 9:58am: Former Vienna Funeral Director Back in Jail, TribToday.com, Jan. 29, 2013. 

Art Critic's Daughter Wants Her Father's Art Work Returned to Her

Paul Westheim is a deceased art critic and his daughter is claiming that owners of a Manhattan gallery benefited from a deception involving German Expressionist works her father left in Berlin as he was fleeing Nazi persecution.  

Margit Frenk, his daughter, seeks the return of four paintings and $3.6 million for the fifth one ("The Violin") that the gallery sold.  She sued the Yris Rabenou Gallery, its owner and her husband, and their two sons in New York County Supreme Court.  

Yris Rabenou Soloman, the gallery owner, is executrix of the estate of Charlotte Weidler, an art dealer and one of Westheim's former friends.  Before Westheim fled to France, he gave his collection to Weidler for safekeeping.  After WWII concluded, Weidler led Westheim to believe that his collection was lost or destroyed in the war.  Weidler then took the works, that had in fact survived the war, to New York and fraudulently concealed them from Westheim until his death when she started selling the works.  When Weidler died, she bequeathed the Westheim works to Yris Rabenou Solomon and David Solomon.  Frenk is seeking a judgment declaring her the rightful owner of her father's collection and the proceeds from sale of "The Violin."

See Adam Klasfeld, Art Case Alleges WW II-Era Double-Cross, Courthouse News Service, Jan. 30, 2013. 

Kremen Fails to Prove Fraudulent Transfer

In Kremen v. Cohen, Kremen won a large judgment against Cohen for stealing Kremen's web domain sex.com.  Kremen then sued Stephen Cohen's cousin, Michael Cohen, for fraudulent transfers received from Stephen after Stephen fled to Mexico to avoid payment of Kremen's $65 million judgment against him.  

In that instance, Kremen loses to Michael Cohen on summary judgment.  In his quest to prove that Michael Cohen fraudulently transferred money to his cousin, the court says that he cannot get past summary judgment because he failed to prove the two Mexican companies were Michael Cohen's alter ego.

See Jay Adkisson, Kremen Failure to Prove Fraudulent Transfer, Forbes, Jan. 19, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

James Brown Trust Suit Dismissed

As I have previously discussed, there has been a continued dispute over James Brown's estate. That legal battle is over. The parties have come to an agreement with 50% of Brown's estate going to his trust, 25% of the estate going to Tomi Rae Hynie, Brown's spouse, and the other 25% to his heirs. 

In 2011, Jacquelyne Hollander, a partner who worked for Brown, filed a civil suit in federal court claiming James Brown did not intend for his children to receive his assets after his death. The suit named both the "James Brown I Feel Good Irrevocable Trust", and Attorney General Alan Wilson. Hollander was seeking the authority to distribute the trust funds because of her involvement in the trust setup. Unfortunately for Hollander, a court dismissed the suit preventing the distribution of his trust assets. The claim Hollander brought against the Attorney General stems from her account of the negative interactions she had with the Attorney General's Office over the years. She claimed she was treated badly and eventually disregarded all together. Due to politics, many attorneys have refused to represent her in the matter.

See Mike Gellatly, Suit looking to halt distribution of James Brown's trust dismissed, Aiken Standard, Jan. 24, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Founder of Turkey's Children and their Mother Never Receive Their Inheritance

As I have previously discussed, the sons of Ülkü Adatepe sent notarized letters to the Republican People's party (CHP) and Turkey's largest bank demanding that they deliver their grandfather's $1 million inheritance to them. The sons claimed that their mother's right were violated. The sons also claim that if the bank does not comply with their request then they will bring suit against the bank. The bank, through their CEO Ersin Özince, stated "the bank has so far acted in line with the will of Atatürk and made regular payments to Adatepe until her death." Özince further commented he believes the jurists will likely rule in favor with the bank. The CHP also stated that it was not sure about the demand the sons have made. The party's chairman, Adnan Keskin, stated that the party paid Adatepe regularly until her death.

See İş Bank Says Unable To Do Anything About Atatürk's Grandchildren's Demand, Today's Zaman, Jan. 2013.

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

Talent Agency of Tony Scott Files Creditor's Claim Against the Estate

When Hollywood Producer Tony Scott died, he had yet to pay his talent agent more than $1 million in commissions. So, the Talent Agency, CCA, has filed a creditor's claim against Scott's estate looking to obtain that lost revenue. Scott apparently owed CCA a total of $1,040,522, which is divided in the following manner: "$70,426 for 'Unstoppable', $450,000 for 'Man on Fire,' $110,096 for 'The Taking of Pelham 123,' $400,000 for 'Deja Vu,' and $10,000 for some video game project." It should probably come as no surprise to anyone that Tony Scott earned a pretty penny for his work on those movies. Scott committed suicide in August 2012 by jumping off an L.A. bridge.

See TMZ Staff, Tony Scott--Talent Agency Files $1 Mil Claim Against Producer's Estate, TMZ, Jan. 30, 2013.

Catch the Premiere of "Death: It's A Living" on CNBC

CNBC will premiere a documentary hosted by CNBC's Tyler Mathisen on the creation and the industry of drafting living wills. The show that will broadcast twice on January 31st. First 9:00 pm EST and then again at 12:00 AM EST. Provided below is a description on the event from CNBC:

Death isn't just a certainty -- it's an industry, where sympathy and profits go hand in hand. CNBC tells the fascinating story of the $17 billion-a-year "death care" business, which everyone confronts yet few understand. Did you know that casket sales rise during cold and flu season, or that a new breed of entrepreneurs can transport your cremated remains aboard a rocket ship? With a fast-paced and engaging approach, CNBC's Tyler Mathisen profiles the professionals who earn their living bringing people from here… to the hereafter. The documentary goes behind the scenes of the increasingly corporate-owned business of funeral homes, explaining a tradition critics say is commercially created and designed to pump up profits. It explores the huge rise in cremation and uncovers some unconventional ways to say goodbye, whether at sea or in space. CNBC follows a traveling salesman who peddles caskets, with new models that have been widened to keep pace with rising obesity rates. And it goes inside the strange business of cemeteries: real estate entities where the land, and new income, inevitably run out but the pricey promise to maintain every gravesite remains.

Can this industry, steeped in tradition and facing profound changes, reinvent itself for a generation that's demanding new ways to deal with the departed and celebrate their lives? Find out, in the CNBC original documentary, "Death: It's a Living," premiering on January 31 at 9PM ET/PT. 

Article on "Material Conflict of Interest" Language Added to the Texas Probate Code

Elizabeth R. Kopecki (St. Mary's University School of Law, J.D. expected May 2013) recently published her comment entitled Removal of Independent Executors: Examining the Standard in Texas After the Addition of "Material Conflict of Interest" To Section 149C of the Texas Probate Code, 44 St. Mary's L.J. 281 (2012).  The introduction to the comment is below: 

The State of Texas allows independent executors to operate with minimal court supervision so executors can administer an estate with as little cost and delay as possible. Executors, from time to time, abuse the limited court supervision and fail to manage estates appropriately. Fortunately, there are several particular circumstances enumerated in section 149C of the Texas Probate Code that allow courts to step in and remove executors who would otherwise cause injury to an estate and its beneficiaries. These enumerated grounds for removal facilitate the effective administration of estates in Texas by authorizing courts to remove executors who are not acting in the best interests of an estate. However, each additional ground for removal under section 149C increases a beneficiary's ability to challenge the actions of an executor and consequently delays settlement of an estate.

Since the adoption of section 149C to the Texas Probate Code in 1979, the grounds for removal have remained relatively specific. Recently, however, the legislature added another ground for removal: “material conflict of interest.” Arguably, this addition to section 149C will open the door to litigation because precisely what circumstances may give rise to a material conflict are not yet defined. Fortunately, courts outside of Texas have considered conflicts of interest in suits brought for the removal of executors and disqualification of administrators for several years now. Though no bright-line rule exists, there is precedent that Texas courts can rely on to determine the existence of a material conflict. However, the legislature can reduce the superfluous litigation this amendment will inevitably create by removing the material conflict of interest provision from section 149C. Alternatively, the legislature should add another section to the probate code that clearly defines the situations that give rise to a material conflict.

This Comment will address the issue as follows: Examined first will be section 149C safeguards prior to the material conflict of interest amendment. Next, the amendment will be considered along with the possible consequences and benefits of providing courts with another tool to remove an executor. This Comment will conclude with the proposal that the material conflict of interest provision be either removed from section 149C, or refined with a new section to fulfill the goals of the Texas probate system better.

Two Men in Wexford Accused of Forging a Will

In 1998, Matthew Hayes died in Wexford on Christmas day. The Wexford circuit court is now hearing allegations that Noel Hayes and William O'Leary forged his will, which left his entire 162 acre estate and money to Noel Hayes.  

In 2009, Charlie O'Leary pleaded guilty to his part in the alleged forgery and he was the first witness in the trial of his brother William and Noel Hayes.  He said that Noel Hayes and William came to his office just before Christmas in 1998, telling him that a distant relation was close to death.  He also said that, on Christmas day, he decided to help his friend Noel write a false will. Charlie testified that Noel had a check with Matthew Hayes' signature on it and that Noel had been practicing that signature a lot.  He went on to admit to the court that he wrote out the will and backdated it, while Noel signed Matthew Hayes's name on it and he and William signed as witnesses. The case is still ongoing.

See Two Accused of 'Complete Deception' Over Man's Will, RTENews, Jan. 17, 2013. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

The Price of Quoting Winston Churchill

 The Churchill family has a long history of taking copyright law to the extreme to demand excessive payments for use of Churchill's quotes.  Despite the fact that biographer Barry Singer had a good relationship with Churchill's heirs, when he went to write a book on Churchill, the family declared that he couldn't incorporate quotations unless he paid.  The heirs' going rate is 50 cents per word. Singer cut back on what he quoted, but he still had to pay for 3,872 words he used that included direct quotations from Churchill.  Ultimately, he ended up getting a slight discount. The family charged him £950 for those words which came out to be 40 cents per word. 

See Mike Masnick, Churchill's Heirs Seek to Lose The Future By Charging Biographer To Quote His Words, techdirt, Jan. 22, 2013.