Wills, Trusts & Estates Prof Blog

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

Monday, September 17, 2018

Article on One Last Request: Understanding Michigan's Funeral Representative Law

WayneSusan M. Strunk published a Note entitled, One Last Request: Understanding Michigan's Funeral Representative Law, 63 Wayne L. Rev. 729-750 (2018). Provided below is an abstract of the Note.

Most people give some thought to what they want to happen to their remains when they die. The discourse around death indicates that most  people assume that everyone has at least a right to direct the disposition of their body.

Michigan Public Act 57 of 2016 enables a person declarant to designate a funeral representative designee who is then entrusted with the authority to make decisions about funeral arrangements and the handling, disposition, or disinterment of the declarant's body after death. "This would include, but is not limited to, decisions about cremation, and the right to possess cremated remains of the decedent."

This Note contains a survey of ancient rituals concerning bodily disposition and religious practices. These historical trends developed a foundation for present practices and attitudes towards death, bioethics, and anatomical gifts. Michigan's funeral representative law offers greater autonomous freedom of disposition than the previously controlling Michigan law by providing individuals with peace of mind that a person they choose will take care of their final wishes. While the new law is a step in the right direction, this Note identifies points of the law which remain imprecise, offers solutions, and calls for reform. For example, it is unclear what fiduciary obligations a funeral agent owes and to whom those rights are entrusted. This Note also suggests the Michigan Legislature adopt certain provisions from other states' disposition laws. Other states address practical questions, such as: whether written instructions from decedent need to be followed; whether the decedent's wishes are financially reasonable; and whether decedent should only be allowed to leave instructions if decedent pre-paid for the requested funeral arrangements.

 

September 17, 2018 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Thursday, September 6, 2018

Article on The Latest 'Federal Movement' in the Food and Drug Law Arena: The Federal Right-to-Try or Rather Right-to-Know and Thus Request Investigational Therapies for Individuals with a Life-Threatening Disease or Condition

PillsRoseann B. Termini recently published an Article entitled, The Latest 'Federal Movement' in the Food and Drug Law Arena: The Federal Right-to-Try or Rather Right-to-Know and Thus Request Investigational Therapies for Individuals with a Life-Threatening Disease or Condition, Elder Law eJournal (2018). Provided below is an abstract of the Article:

Does the recently enacted Federal Right-to-Try Act provide improved access for the desperately ill? Will insurance companies provide reimbursement for a patient to undergo such investigational therapies? Is the manufacturer protected in terms of lawsuits? That is, does the patient relinquish the right to bring a legal action? Will physicians comprehend the pathway and advocate for their patients? Does this new law guarantee “any novel federal right”? The national state movement regarding Right-to-Try state legislation spurred the enactment of the Federal Right-to-Try (Federal Right-to-Try Act) legislation passed in 2018. Yet, even prior to the enactment of the Federal Right-to-Try law, the United States Federal Food and Drug Administration (FDA) has had mechanisms in place for those terminally ill who do not qualify for a clinical trial.

This article provides a Federal Primer on the Investigational Drug, Biologic and Device Process, details a similar national right-to-know movement in the food and drug law arena that led to federal legislation perhaps comparable to how the Federal Right-to-Try Act was enacted and includes a discussion about the state right to try movement which conceivably led to the enactment of the Federal Right-to-Try Act. There are more queries than unambiguous answers regarding the recently enacted Federal Right-to-Try Act. The federal law in essence could prove troublesome and confusing with both the state Right-to-Try measures due to, for instance, issues of national uniformity and preemption. Further, could the recently enacted Federal Right-to-Try Act ultimately be detrimental to the patient in terms of lack of adequate safeguards and perhaps a false unrealistic sense of hope?

September 6, 2018 in Articles, Death Event Planning, Elder Law, Estate Planning - Generally, New Legislation, Science | Permalink | Comments (0)

Monday, September 3, 2018

Aretha’s Lack of a Will Could Make Things Rocky for Heirs

ArethaEstate law experts expressed surprise but not shock that a wealthy person like Aretha Franklin would put off making a will until it was too late. Laura Zwicker, an attorney who specializes in estate planning but is not affiliated with the Franklin estate, says she sees it happen far too often. "People don't like to face their own mortality."

The documents listed make no mention of the value of Aretha Franklin's estate, though it seems that a surprising aspect of the estate is the ownership of her songs. Though her records were played millions of times, she earned little in radio royalties from smashes like 1967′s “Respect” because such payments go overwhelmingly to the song’s author, not the performer. She only owned the rights to one of her major hits, that of "Think"

Kenneth Abdo, an attorney who specializes in probate law and has worked on the estate of Prince, who also died without a will, says the IRS will conduct an audit of her holdings, and the entire process could take years. Then the IRS will eventually take 40% of the estate's value over $11.2 million. Her entertainment lawyer seemed distraught that the process will be taken place entirely in the public eye after the diva spent years being such a private person.

See Andrew Dalton, Aretha’s Lack of a Will Could Make Things Rocky for Heirs, AP News, September 2, 2o18.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

September 3, 2018 in Current Events, Death Event Planning, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, August 30, 2018

Why It’s Smart to Plan Your Own Funeral—Now

Calla-liliesDeath is not a happy, pretty subject. Facing your own mortality can be one of the hardest trials you can face, but hesitating had the propensity to add stress and costs to those closest to you. Here are several reasons why planning your funeral now is an investment in your life.

  • Rising Costs
    • Planning and paying for your funeral now is a way to avoid the increasing costs of funeral expenses.
  • The Ability to Make Your Own Decisions
    • If you approach funeral planning as you would a financial or business decision, you will have the ability to decide for your family the important aspects of your final event.
  • To Lessen Future Family Conflict
    • While you can’t guarantee family members will abide by your choices, preplanning documents your wishes and provides a benchmark
  • To Reduce Financial Burden
    • Prepaying for your funeral and associated costs eliminates or reduces the financial burden on those left behind.
  • Preplanning is a Gift to Loved Ones
    • Planning a funeral is often left to grieving survivors, and the stress of getting that important even exactly right can just compound onto the mourning process.

See Candy Arrington, Why It’s Smart to Plan Your Own Funeral—and do it Now, Market Watch, August 29, 2018.

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

August 30, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Saturday, August 18, 2018

How America’s 88,000 Missing People Become Legally Dead

MissingAccording to a report in the Wall Street Journal, there are currently approximately 88,000 people that are actively missing. These people are somewhere in the legal limbo of dead and alive, and without a death certificate, the families of these individual are facing not only emotional trauma but potentially financial trauma.

A death certificate of a person is the literal key for many things, such as selling jointly-owned property, collecting social security benefits for minors, or collecting benefits from retirement plans. Life insurance policies may be especially tricky, as often of the pay outs are dependent upon the cause of death of the insured.

Attorney Beth Chapman who practices in Juneau, Alaska, Chapman has worked with the families involved in two “presumption of death” trials in regards to people who disappeared while engaging in outdoor activities. She says that it has been extremely emotional for her as an attorney to work on these case, but also that, “It is wrenching for families to go into court to seek a death declaration without a body.”

See American has 88,000 Missing Persons, and Some Families Need Them Declared Dead, Real Clear Life, August 17, 2018; see also Sara Randazzo, How America’s 88,000 Missing People Become Legally Dead, Wall Street Journal, August 17, 2018.

August 18, 2018 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Friday, August 17, 2018

Funerals are Becoming one Last Extravagant Display of Wealth

GoldOnce upon a time destination weddings were the only big occasion that was prevalent to show a person's wealth; now, destination funerals are becoming popular. The wealthy are dictating in their last wishes the desire for Rolls-Royce hearses, gold caskets, and other last "flairs" to show the world their prestige. “There’s a certain set of expectations about how you’re supposed to go out,” said Ted Klontz, chief executive officer of Klontz Consulting Group. “It’s become one last display of power and wealth.”

Where to be buried may also be seen as an extravagant expenditure. A crypt beneath New York’s Basilica of St. Patrick’s Old Cathedral is available for $7 million. It can hold nine caskets and 10 cremated remains and according to Frank Alfieri, who oversees the church's cemetery, three prominent families have already expressed interest.

Go big or go home.

See Olivia Carville, Funerals are Becoming one Last Extravagant Display of Wealth, Bloomberg, August 17, 2018.

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

August 17, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, August 11, 2018

Adulting: Planning for Life When You are Least Expected to Live

Estate-planning-thinkstock-780x520Many clients that create an estate plan only plan on their inevitable death rather than a "worst case scenario." Catastrophes such as plane crashes, car wrecks, or other sudden life-ending events should be planned for, as well as catastrophes that do not end in death but rather incapacity or the inability to work.

Every individual over the age of 18 should have a power of attorney. A power of attorney grants your agent significant authority to act on your behalf. Obviously, you should choose an agent whom you implicitly trust. A health care proxy similarly appoints an agent to make medical decisions on your behalf in the event you are unable to express your wishes.

"Marriage to a person does not give you automatic authority to access their individual financial accounts. Living with your parents does not give you the right to access their accounts, nor can they access yours. In the event you do not have a power of attorney, your spouse and children are barred access to your individual assets, which they may need to survive. In the event an agent is not appointed, your family may be forced to request court intervention for the appointment of a guardian or conservator, which is an emotionally difficult and expensive process."

See Cori A. Robinson, Adulting: Planning for Life When You are Least Expected to Live, Above the Law, July 31, 2018.

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

August 11, 2018 in Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, August 6, 2018

Article on Postmortem Austerity and Entitlement Reform

SSReid K. Weisbord recently published an Article entitled, Postmortem Austerity and Entitlement Reform, Wills, Trusts & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This Essay proposes a novel policy of "postmortem austerity" to address the unsustainable, rapidly escalating cost of federal entitlement programs following the 2017 tax reforms. If Social Security and Medicare continue on their current path to insolvency, then they will eventually require austerity reforms absent a politically unpopular tax increase. This Essay argues that, if austerity becomes necessary, federal entitlement reforms should be implemented progressively in a manner that minimizes displacement of benefits on which individuals relied when saving for old age. A policy of postmortem austerity would establish new eligibility criteria for Social Security and Medicare that postpone the effective date and economic consequences of benefit ineligibility until after death. All individuals would continue to collect federal entitlements during life, but at death, wealthy decedents would be deemed retroactively disqualified from part or all of Social Security and Medicare benefits received during life. The estates of such decedents would then be liable for repayment of disqualified benefits.

August 6, 2018 in Articles, Current Affairs, Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, August 5, 2018

Your Money: How to deal With the Paperwork Scramble After a Spouse Dies

ProbateAmidst the anguish of mourning the loss of a beloved spouse, the stress can be compounded by the process and paperwork of changing the title of all the assets that were jointly owned to now having a sole owner. The process - probate - can by time-consuming, expensive, and public, which is why many people try to avoid it if possible.

Financial adviser David Demming out of Aurora, Ohio recommends that clients with simple family structures use “pay-on-death” or “transfer-on-death” designations on all assets, rather than the legal structure of an estate trust. “If you are not trying to control from the grave, you don’t need a trust,” Demming said.

If a family dynamic is more complex financial advisers recommend legally structuring assets in trusts, regardless of the total amount of your assets. This can be especially important for blended families and those with special needs. Qualified retirement accounts like IRAs and 401(k)s, pensions and joint life insurance policies come with varying sets of rules about how they are inherited by spouses.

See Beth Pinsker, Your Money: How to deal With the Paperwork Scramble After a Spouse Dies, Reuters, June 18, 2018.

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

August 5, 2018 in Current Affairs, Death Event Planning, Elder Law, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

Saturday, August 4, 2018

How do You Want to Die?

HeartNo one want to die too soon, but when asked, a person would want to die quickly and painlessly. Though an implantable defibrillator may extend the life of a patient with an increased risk of arrhythmia, it alleviates the "chance" of dying quickly. Instead, the patient lives longer but may end up passing away from congestive heart failure with the lungs slowly filling with fluids and can be physically agonizing.

Defibrillators offer many amazing benefits and they are highly effective. Studies have shown that they prolong life in a significant number of cardiac patients and the implantation procedure is safe. And defibrillators can, in theory, be compatible with a quick death: When a patient’s condition spirals downward, the patient can choose to deactivate the device, though rarely does a patient choose this option.

See Sandeep Jauhar, How do You Want to Die?, New York Times, July 28, 2018.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

August 4, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)