Wills, Trusts & Estates Prof Blog

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

Wednesday, June 21, 2017

Article on Recent Texas Cases Impacting the Wills, Probate, and Trust Practice

Intestate-Succession-212x300Gerry W. Beyer recently published an Article entitled, Recent Texas Cases Impacting the Wills, Probate, and Trust Practice, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This article discusses recent judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

June 21, 2017 in Articles, Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Malpractice, Trusts, Wills | Permalink | Comments (0)

Friday, June 16, 2017

Another method for ante-mortem probate proposed -- The Commissioner's Model


Joe Savoie (Associate, Tekell Book Allen & Morris, L.L.P., Houston, Texas) has recently posted his innovative article on SSRN entitled The Commissioners' Model of Ante-Mortem Probate. Here is the abstract of his article:

Most jurisdictions within the United States follow the post-mortem model of probate, wherein a person of legal age and of sound mind distributes his or her estate upon death. The distributions, as intended by the individual, are set forth in his or her will only to be disclosed upon death. At such time, the individual's estate is distributed according to his or her wishes. Experience has shown, however, that in many cases the traditional probate system has failed to preserve the very interest it was designed to protect--the intent of the testator. This article discusses the problems associated with the post-mortem probate model and the techniques utilized to avoid it.

As an alternative to post-mortem probate, few states have enacted ante-mortem probate statutes that allow a testator to validate a will during his or her lifetime. This article discusses the current models of ante-mortem probate and their attempts to resolve the problems with post-mortem probate. The focus of this article is to advocate for a new method of ante-mortem probate, the Commissioners' Model, as an alternative to post-mortem probate. The Commissioners' Model addresses the unresolved issues and the problems with the current ante-mortem probate models. While the Commissioners' Model is not the ultimate ante-mortem probate solution, it demonstrates that ante-mortem probate deserves serious consideration and can eliminate the traditional problems of post-mortem probate.

June 16, 2017 in Articles, Estate Administration | Permalink | Comments (0)

Thursday, June 8, 2017

Rockefeller's Art Treasures to Be Sold at Christie's Auction

RockefellerChristie’s auction house announced they will be selling the impressive art collection of banker and philanthropist David Rockefeller. Rockefeller was the oldest living member of the Rockefeller family and the grandson of John D. Rockefeller, an oil magnate who was considered to have been one of the wealthiest Americans of all time. Rockefeller died March 20, 2017. His estate is selling over 2,000 objects, including modern art masterpieces, Chinese porcelain, American paintings, and European furniture. In 2013, Christie’s and Sotheby’s competed for the right to auction the collection. At the time, Christie’s was willing to guarantee more than $650 million for the collection. The proceeds from the auction will go to a number of charities Rockefeller supported during his lifetime.

See Katya Kazakina, Rockefeller's Art Treasures to Be Sold at Christie's Auction, Bloomberg Pursuits, June 6, 2017.

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

June 8, 2017 in Current Events, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, June 7, 2017

Who Controls How Voluntary Payments to IRS Are Applied?

IRSIn Estate of Beckenfeld v. Commissioner, the Tax Court held that a taxpayer can force the IRS to apply voluntary payments according to the taxpayers instructions. In this case, the IRS credited a husband’s estate with a payment clearly intended to apply to the wife’s estate. Part of the issue was that the check provided to the IRS was for the husband’s liabilities and included his social security information. The executor’s representative tried to argue that the husband’s estate was offering payment to satisfy the obligations of the wife’s estate. The instructions indicated that a check from the husband’s estate could only satisfy obligations arising from that estate.

See Kevin A. Diehl, Who Controls How Voluntary Payments to IRS Are Applied?, Wealth Management.com, June 1, 2017.

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

June 7, 2017 in Estate Administration, Estate Planning - Generally, Gift Tax, New Cases | Permalink | Comments (0)

Wednesday, May 31, 2017

Stranger Than Strangi and Partially Fiction

IRS_auditThe U.S. Tax Court, in Estate of Powell, recently held that cash and marketable securities transferred into a family limited partnership (FLP) under a power of attorney were includable in the decedent’s gross estate. The transfer was made about one week prior to death. There were unusual circumstances that made the decision less surprising, but the decision remains notable. In their discussion, the majority outlined a new analytical framework to prevent double taxation on an FLP interest and its underlying assets when there is an inclusion under Internal Revenue Code Section 2036(a). Practitioners advising clients regarding new or existing FLPs should be cognizant of Powell and engage in a pointedly holistic analysis of the FLP and the estate plan.

See N. Todd Angkatavanich, James Dougherty & Eric Fischer, Estate of Powell: Stranger than Strangi and Partially Fiction, Wealth Management.com, May 25, 2017.

May 31, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, New Cases | Permalink | Comments (0)

Thursday, May 25, 2017

The Estate Planning Enchiridion

NV-PeoplesBranchThe Estate Planning Enchiridion of Rushforth, Lee & Kiefer, LLP, contains up-to-date news on both trust and estate legislation in the great state of Nevada. Assembly Bill 314 passed both houses and is expected to be signed into law by the Governor shortly. This bill serves to clarify a number of Nevada laws relating to trusts and estates including clarifications in the probate code, court jurisdiction, and creditor’s claims against nonprobate assets. Assembly Bill 239 is expected to become effective in early October. This bill declares the law in respect to a decedent’s digital assets; this includes access to online financial sites and social media. Assembly Bill 413, if passed, would revise Nevada law dealing with certain electronic documents, including electronic wills. But, while not dead, Bill 413 has stalled in the Assembly and its passage is questionable.

See Layne T. Rushforth, Estate Planning News: Law Updates, Estate Planning Enchiridion of Rushforth, Lee & Kiefer, LLP, May 23, 2017.

May 25, 2017 in Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

Tuesday, May 23, 2017

Michael Jackson's Estate Poised for Suit

502536-michael-jackson-617-409Both Lifetime and Netflix have soon-to-be-released movies with Michael Jackson as their centerpiece. While it may be unthinkable to release a cinematic depiction of the beloved pop star absent his unique music balancing the soundtrack, the networks would be better off without. Neither program has been officially authorized by Jackson’s estate. Given this, there are attorneys waiting on the sidelines to see if either film uses any unauthorized materials. The estate representatives have not seen the movies as of yet, so no action is currently underway. This circumstance may change by Monday.

See Michael Jackson Estate: Hey, Lifetime & Netflix...Make Your Movies, Just No MJ Tunes, TMZ, May 22, 2017.

May 23, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Film, Music | Permalink | Comments (0)

Monday, May 22, 2017

New Mexico 2017 Legislative Report

Land splitThe 2017 New Mexico Legislature considered over 1000 bills and 43 Constitutional Amendments during its sixty-day session. Two bills of some interest that were approved by both Houses were the Uniform Fiduciary Access to Digital Assets Act (UFADA) and the Uniform Partition of Heirs Property Act (UPHPA).

UFADA is designed to extend the traditional power of a fiduciary to manage tangible property to include management of an individual’s digital assets. The act would allow fiduciaries to manage web domains, computer files, and virtual currency. It still restricts access to texts, email, and social accounts without prior consent from the client.

UPHPA is designed to protect family wealth from real estate speculators. A devise of property that creates tenants-in-common leaves each tenant with the power to force a partition of the property. Occasionally, speculators will purchase a small amount of an heir’s property in order to file a partition action and force a sale. The speculator will then purchase the property at a severe discount, depleting the family’s wealth in the process. UPHPA provides beneficiaries with certain rights in order to prevent this practice.

The Governor has a limited time period to act on most of the legislation approved during the recent session.

See John W. Anderson & Mark Anderson, NMBA Legislative Report, New Mexico Bankers Association, March 20, 2017.

May 22, 2017 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Legislation, Technology | Permalink | Comments (0)

Sunday, May 21, 2017

Roger Ailes's Estate Under Pressure

18-roger-ailes.w710.h473Roger Ailes, former Fox News chairman, died this past Thursday. While this is certainly a tragedy for his family, the tumultuous times for his estate will not end soon. Two former Fox News hosts, Andrea Tantaros and Julie Roginsky, have lawsuits pending against his estate. According to Debra S. Katz, an employment and civil rights attorney, the lawsuits will continue to move forward. She believes that Ailes’s estate will now be more likely to seek quick closure of the suits as Ailes is no longer able to defend himself in court. 

Tantaros’s lawsuit alleges that Ailes made repeated, inappropriate sexual comments to her involving speculation regarding sexual contact between other employees at the station. Roginsky alleges that Ailes made explicit comments about her dating and sex life and would insist that she give him a kiss while sitting so that she would have to bend down. Both women claim their refusals of Ailes’s advances negatively impacted their careers at Fox.

Prior to his death, Ailes denied all wrongdoing and dismissed the complaints as unfounded. The fact that Ailes is unable to personally refute the women’s claims may hint that his estate will be much more willing to settle the lawsuits as quickly as possible.

See Lisa Ryan, What Will Happen to the Sexual-Harassment Lawsuits Against Roger Ailes?, The Cut, May 18, 2017.

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

May 21, 2017 in Current Events, Death Event Planning, Estate Administration | Permalink | Comments (0)

Saturday, May 20, 2017

10 Tips for Tumultuous Tax Times

RK_Post_-_Death_and_Taxes_1024x1024The only things that ever seemed to be certain were the inevitability of death and the persistent and ever-present burden of taxes. Now, taxes are coming into question (sort of). President Trump and the Republican-dominated congress are expected to change the laws concerning estate and gift taxes. Unfortunately, for estate planners, neither the extent nor the scope of these changes are actually known. John O. McManus, founder of an estate planning firm in New York, has some helpful strategies to deal with the uncertainty. McManus’ friendly tips push flexibility in planning and he says these strategies work in both the long and short term, and are beneficial for the mass affluent as well as the ultra-wealthy.

See Karen Demasters, Fidgety About Tax Reform? Here Are 10 Things Estate Planners Can Do Now, Private Wealth, May 12, 2017.

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

May 20, 2017 in Current Events, Death Event Planning, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (0)