Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, June 14, 2018

Article on Defective Catastrophe Clauses in Wills: Paths to Reform

BoomAdam J. Hirsch published an Article entitled, Defective Catastrophe Clauses in Wills: Paths to Reform, 52 Real Property, Trust and Estate Law Journal, Vol. 52, No. 3, Winter 2018. Provided below is an abstract of the Article:

This Article explores the problem of construing what I term “defective catastrophe clauses” in wills. Defective catastrophe clauses provide for the contingency that a beneficiary will die simultaneously, or in a common calamity, with the testator but neglect to allow for the possibility that the beneficiary will predecease the testator. The Article explores the extensive case law addressing this problem, spotlighting the most recent and ballyhooed case on point, Estate of Duke. The Article observes that this body of decisions reflects a tension between applying existing law, which fails to respond adequately to the problem, and employing one or another legal fiction to circumvent existing law. The Article argues that lawmakers should confront the problem head on by establishing a new default rule, ideally in the form of a statute, construing catastrophe clauses by implication to cover the possibility that the beneficiary will predecease the testator.

June 14, 2018 in Articles, Books, Death Event Planning, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Thursday, June 7, 2018

Book on An Estate Planner's Guide to Buy-Sell Agreements for the Closely Held Business, Third Edition

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-07/d72c8bb3-40bf-4b3b-8b8a-bfc6e56e5db0.pngLouis A. Mezzullo published a book entitled, An Estate Planner's Guide to Buy-Sell Agreements for the Closely Held Business, Third Edition (2018). Provided below is a summary of the book:

Providing comprehensive yet practical advice for designing effective buy-sell agreements to be used as both an exit strategy or as part of the succession or estate planning process, this book is accessible to practitioners with varying degrees of experience in the subject and includes invaluable sample agreements ready to customize to your client's planning requirements.

This guide supplies practical guidance for assisting owners of a closely held business in structuring arrangements to deal with the withdrawal of an owner from the ownership of the business. Author Louis A. Mezzullo explains the benefits of the buy-sell agreement from the perspective of each party that can have an interest in the agreement. Topics include:

  • Types of buy-sell agreements
  • Choosing the right type of agreement
  • Terms of a well-drafted agreement and important modifications that can be employed
  • Using a buy-sell agreement to set the value of an interest in a business entity for estate tax purposes
  • Tax consequences for both the entity and the departing owner
  • Special concerns when dealing with family-owned businesses
  • Valuing closely held businesses, and more

Includes downloadable sample buy-sell agreements for a C corporation, an S corporation, and a family-owned business, plus optional provisions for an LLC operating agreement.

June 7, 2018 in Books, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Tuesday, June 5, 2018

Article on Introduction to THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD

Jennifer E. Rothman recently published an Article entitled, Introduction to THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard University Press 2018), 256 pages, considers the opportunities and risks that today’s right of publicity laws pose. The right of publicity has become a negative force―suppressing speech, blocking otherwise lawful uses of copyrighted works, forcing commercialization of the dead, and stripping people of ownership of their own identities. But this need not be so. The right of publicity has an important and powerful core insight that originated with the right of privacy―that we should have some control over how others use our names and likenesses.

Rothman shows how the right has lost its way. Rothman contends that the right got off track when it transformed from a personal right, rooted in the individual (the "identity-holder"), into a powerful intellectual property right, external to the person, that can ` sold or taken by a nonidentity-holding "publicity-holder." The wrong turns by the right of publicity have been driven and continued by a host of mythologies that have sprung up surrounding both it and its predecessor, the right of privacy.

The first part of the book uses extensive archival research to debunk the common, though erroneous, stories about the two rights. The second part develops how today’s right of publicity came to be understood as an intellectual property right, different in nature from the right of privacy. In this part of the book, Rothman challenges the common justifications for having an IP-like right of publicity that is separate and apart from a right of privacy. In the final part of the book, Rothman tackles the three most pressing challenges posed by today’s right of publicity―its threat to individual ownership and control of one’s own identity, its threat to free speech, and its conflicts with copyright law. Rothman concludes by providing a number of recommendations for putting the right of publicity back on course.

THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD has been called the “definitive biography of the right of publicity” (Jack Balkin, Yale Law School), and an “important and informative study.” (Rebecca Tushnet, Harvard Law School).

Note: The downloadable document is an excerpt of the Introduction to the book. The complete work is currently available from Harvard University Press and other book sellers.

June 5, 2018 in Articles, Books, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, April 24, 2018

Book on Wills, Trusts, and Estates, Tenth Edition

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-24/d1241ed4-94b9-4188-b872-29f3e7db1ed7.pngRobert H. Sitkoff and the late Jesse Dukeminier recently published a book entitled Wills, Trusts, and Estates, Tenth Edition. This updated edition features a new section on digital wills, trust decanting, as well as updated and expanded coverage relating to wealth and income inequality.

Special thanks to Rachael Wisner for bringing this article to my attention.

April 24, 2018 in Books, Books - For Practitioners, Books - For the Classroom, Estate Planning - Generally | Permalink | Comments (0)

Thursday, April 19, 2018

Updated Statutory Supplement on Uniform Trust and Estate Statutes (Selected Statutes) 2017-2018 Edition

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-19/01c9f89d-0d26-4ecb-b85c-7976ef9cfe35.pngThomas P. Gallanis has recently published his new statutory supplement entitled Uniform Trust and Estate Statutes (Selected Statutes) 2017-2018 Edition

This statutory supplement is ideal for use in basic and advanced courses in wills and trusts and for practitioner reference. The 2017-2018 edition includes the updated text and official comments of the Uniform Probate Code, Uniform Trust Code, and more than a dozen other acts relating to the field of trusts and estates, including the Uniform Trust Decanting Act, Revised Uniform Fiduciary Access to Digital Assets Act, Uniform Powers of Appointment Act, Uniform Principal and Income Act, Uniform Prudent Investor Act, Uniform Custodial Trust Act, Revised Uniform Anatomical Gift Act, Uniform Prudent Management of Institutional Funds Act, Uniform Parentage Act, Uniform Premarital and Marital Agreements Act, Uniform Health-Care Decisions Act, Uniform Simultaneous Death Act, Uniform Transfers to Minors Act, Model Marital Property Act, Model Protection of Charitable Assets Act, and the amendments to the Uniform Fraudulent Transfer Act which is now renamed the Uniform Voidable Transactions Act. The book includes relevant provisions of the Restatement Third of Trusts and Restatement Third of Property, as well as selected prior versions of sections of the Uniform Probate Code and Uniform Principal and Income Act. The book is ideal for teaching basic and advanced courses in wills and trusts. It is also ideal for practitioner reference.

April 19, 2018 in Books, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, April 17, 2018

Book on Grappling with Legacy: Rhode Island’s Brown Family and the American Philanthropic Impulse

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-17/63f9602a-e872-4b9c-962d-0286986dfa4b.pngSylvia Brown published a book entitled, Grappling with Legacy: Rhode Island’s Brown Family and the American Philanthropic Impulse (2017). Provided below is a summary of the book:

"This is a fascinating and intellectually honest work about a remarkable family that has played a major role in the history of Providence and Rhode Island. Sylvia Brown has made a tremendous contribution in writing this wonderful book. It is clearly a labor of love, and we should all be grateful to her for it."

- Vartan Gregorian, President of Carnegie Corporation

of New York, former President of Brown University

"A splendid work of history---an honest, clearly written, and solidly based account of the private and public lives through four centuries of one of America's most important and fascinating families."

- Gordon Wood, Pulitzer Prize for History, Alva O. Way University Professor and Professor of History Emeritus at Brown University

What fuels a family's compulsion for philanthropy? Self-interest? A feeling of guilt? A sense of genuine altruism? Charitable giving is such an intrinsic part of American culture that its story deserves to be told, not in a dry, academic tome but through the tale of a colorful, multifaceted family.

Since 1638, the Browns of Rhode Island have provided community leaders in one of the nation's most idiosyncratic states. In the 18th century, they excelled at maritime commerce, were pioneers of the American industrial revolution, and adorned their hometown of Providence with public buildings, churches, and a university. In the 19th century, they pioneered the modern notion that universities can be forces for social good. And, in the 20th century, they sought to transform the human experience through great art and architecture. Over three hundred years, the Browns also wrestled with society's toughest issues-slavery, immigration, child labor, the dispossessed-and with their own internal family tensions.

Author Sylvia Brown tells the story of the ten generations of Browns that came before her with warmth and lucidity. Today, in an era of wealth creation and philanthropic innovation not seen since the Gilded Age, Grappling with Legacy provides fascinating insights into a unique aspect of America's heritage.

April 17, 2018 in Books, Estate Planning - Generally | Permalink | Comments (0)

A Tangled Legacy

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-17/528647e5-6b96-4104-a82d-22a9c28ee6f9.pngSylvia Brown, in her recent book, Grappling with Legacy, closely examines the relationship between money and meaning. Brown is an 11th-generation heir descending from the famous Rhode Island family after which Brown University is named. Brown uses her platform to analyze the philanthropic impulse while examining her own roots and her family’s wealth accumulation. The ultimate question she seeks to answer is whether charitable giving is motivated by altruism, guilt, or self-interest.

See Thomas M. Kostigen, A Tangled Legacy, Financial Advisor, April 2, 2018.

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

April 17, 2018 in Books, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, March 14, 2018

New Casebook Published: Wills, Trusts, and Estates: The Essentials

AReid Kress Weisbord, David Horton, Stephen K. Urice have recently published their new casebook entitled Wills, Trusts, and Estates: The Essentials.

This casebook provides a unique platform for teaching Trusts and Estates as an accessible, engaging area of the law. As its title implies, Essentials covers only the core legal doctrines and does so in a concise, straightforward format that focuses on practical application rather than theory. The organizational structure of each chapter facilitates student learning by providing: (1) a clear explanation of the doctrine in plain English, (2) an excerpt of relevant statutory authority where applicable, (3) an illustration of the doctrine through a carefully-selected judicial opinion, and (4) an application of the doctrine in a problem set. Each judicial opinion is followed by a series of questions, as well as narrative answers to each question. The problem sets, which are heavily emphasized, simulate the practice of law in a realistic T&E setting.

 Here are the key features of the book:
  • Makes a challenging course uniquely accessible. Plain English explanation of legal doctrine at the beginning of each section helps ensures students have a basic foundation of substantive knowledge, allowing the professor to focus classroom discussion on applying the doctrine.
  • Delivers well-edited judicial opinions in a format that allows students to achieve mastery of the materials before entering the classroom.
  • Emphasizes problem-solving through detailed problem sets that allow students to apply newly learned legal doctrine to real-world situations.
  • Offers concise, yet comprehensive coverage. All core Trusts & Estates topics are covered in fewer than 650 pages.
  • Provides enough content for a 4-credit version of the T&E survey course, and yet, it is easily adaptable for 2-credit and 3-credit versions.
  • Is accompanied by extensive teaching materials, including a 300+ page Teacher’s Manual and hundreds of PowerPoint slides for classroom use.

March 14, 2018 in Books | Permalink | Comments (0)

Tuesday, March 6, 2018

Harper Lee’s Will, Unsealed, Only Adds More Mystery To Her Life

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-06/8f0d7fa7-f801-45e1-9e56-daa7aa4dc4f9.pngHarper Lee, author of “To Kill a Mockingbird,” left behind a trail of unanswered questions when she died in her sleep two years ago at age 89. One lingering query was why the renowned author had decided to publish another book 55 years after her masterpiece was released following a seemingly dry interim. Are there, perhaps, other unknown works that remain unpublished? And if so, who has the rights to these potential literary giants? The answers to these questions may go unanswered for some time.

Lee was an incredibly private person and disfavored the spectacle of the press. The will she signed on February 11, 2016, just eight days before her death, was successfully sealed after Lee’s attorney convinced a probate judge that making the will public might lead to the harassment of the beneficiaries. The New York Times, unconcerned with Lee’s desire for privacy, filed suit to have the will made publicly available. Archie Reeves, The New York Times’s lawyer, commented: “It’s a public record, and the press and the public have a right to public records.” Fortunately for Lee and her family, the will is absent much detail as it leaves a majority of her assets to a trust: “It is not an uncommon will, and it is typically what we term a pour-over will where anything in the estate goes over to the trust and they don’t have to disclose the terms of the trust,” said Sidney C. Summey, a trusts and estates lawyer in Birmingham.

See Serge F. Kovaleski & Alexandra Alter, Harper Lee’s Will, Unsealed, Only Adds More Mystery To Her Life, The New York Times, February 27, 2018.

Special thanks to Felix B. Chang, Associate Professor at the University of Cincinnati College of Law.

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

March 6, 2018 in Books, Books - Fiction, Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (1)

Friday, March 2, 2018

Wills Road Map: Practical Considerations in Will Drafting, 3rd ed. 

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-03-01/8be0ed7e-627e-4976-9c74-492387f50c40.pngSteve R. Akers, Bernard E. Jones, & R. J. Watts, II, with 3rd edition update by Casey A. Barthel, recently published a book entitled, Wills Road Map: Practical Considerations in Will Drafting, 3rd ed. (2018). Provided below is some information about the book:

Wills Road Map: Practical Considerations in Will Drafting began life as the well-known paper “Anatomy of a Will” from the TexasBarCLE seminar “Building Blocks of Wills, Estates and Probate.” Intended for both general practitioners who occasionally prepare wills for their existing clients as well as for experienced estate planning attorneys, Wills Road Map brings together legal concepts from wills, probate, and trust law to provide expert guidance in properly assembling a will.

Featuring a basic discussion of estate tax planning, with a focus on various state law issues, Wills Road Map also addresses principles that can affect the will beyond the language of the will itself. Other subjects include doctrines affecting the validity of the will and a review of the legal significance and effect of numerous specific wills provisions.

The new third edition of Wills Road Map reflects legislative changes from the regular session of the Eighty-fifth Legislature, as well as case law changes. Other updates include a new discussion about digital assets and revised sample wills. Finally, the third edition adds the following:

  • Client intake questionnaires
  • Self-proving affidavits
  • Access to over 20 TexasBarCLE articles of interest in the digital download
  • A will execution ceremony checklist

The Wills Road Map: Practical Considerations in Will Drafting Digital Download is included with purchase and may also be purchased separately. The digital download contains the entire book as a hyperlinked and word-searchable PDF file. All tables of contents, cross-references, and indexes are linked to substantive text within the file. Texas and federal case and statute citations are linked to online versions in the Casemaker Web Library.

March 2, 2018 in Books, Books - For Practitioners, Books - For the Classroom, Estate Planning - Generally, Wills | Permalink | Comments (0)