Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Monday, September 29, 2014

Estate Planning Documents: Location, Location, Location

Location, location, location

“Location, location, location” are three words we often associate with real estate; however, location very much surrounds the realm of estate planning. 

Besides drafting a will, it is critical that family members and close friends know where they can locate documentation after a loved one’s passing.  A will establishes directives for disposing of a deceased’s assets, but it may not disclose where those assets can be found.  Additionally, a will may be silent on a deceased’s wishes involving funeral arrangements or other important details.  If these documents cannot be found, you run the risk of having your wishes go unfulfilled.  Hence, it is crucial to not only have an estate plan in place, but to have it where it can be found. 

Although planning out the details of your after-life wishes may seem uncomfortable, think of it as planning for loved ones’ peace of mind.  When thinking of where to place this information for others’ future use, remember, “location, location, location!”

See Margaret S. Barr, Location, Location, Location re: Estate Planning Documents, The National Law Review, Sept. 28, 2014.

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

September 29, 2014 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, September 28, 2014

Estate Fiduciary Held Personally Liable for Unpaid Taxes

Tax1Under the Federal Priority Statute, an estate fiduciary can be held personally liable for unpaid tax liability owed to the IRS if the fiduciary instead uses estate funds to pay other debts. Marci McNicol was the executrix of the estate of Robert Reitano, and instead of paying the estate taxes, she distributed stock that had been owned by Reitano to herself. A case was brought against McNicol by the Department of Justice and a Massachusetts district court held her personally liable for the tax debt.

See Marshall Senterfitt & Mark Swirbalus, T&E Litigation Newsletter – September 2014 #1, JD Supra, Sept. 12, 2014.

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

September 28, 2014 in Estate Administration, Estate Planning - Generally, Estate Tax, New Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, September 27, 2014

Article on Iowans' Right to Direct Disposition of their Bodily Remains

Iowa legislature

Timothy J. Farmer (University of Iowa College of Law) recently published an article entitled, Don’t Die in Iowa: Restoring Iowans’ Right to Direct Final Disposition of their Bodily Remains (Sept. 2, 2014), Iowa Law Review, Forthcoming.  Provided below is the abstract from SSRN:

Iowa has long been a bastion of support for a decedent’s right to control disposition of her remains. In early 2013, the Iowa Supreme Court made an unprecedented move when it interpreted Iowa’s Final Disposition Act as entirely eliminating that right — even when a decedent repeatedly and incontrovertibly expresses her wishes. This Note argues that the Iowa Legislature did not intend this result, and proposes two modifications to the Act that can both facilitate the Act’s purpose and restore the decedent’s right to direct disposition of her remains. First, this Note proposes that the Iowa Legislature modify the Act to require funeral directors to provide their clients with resources that will help them ensure that survivors honor the client’s wishes regarding final disposition. Second, this Note proposes that the Iowa Legislature modify the Act to include a presumption, rebuttable by clear and convincing evidence, that the person entitled to control disposition of a decedent’s remains acts in accordance with the decedent’s wishes.

September 27, 2014 in Articles, Death Event Planning, Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Rules Concerning Copyrights and Estate Planners

Art1

It is critical that an estate planning practitioner have a working knowledge of the 1976 Copyright Act, because without such knowledge, the consequences to his or her client may be damaging and could wreak havoc with the intended disposition of the copyrights associated with the client’s creative works. 

The 1976 Act creates three impending pitfalls that an estate planner must consider when disposing of a client’s creative works and the related copyrights:

1. A Gift or Bequest of a Creative Work Does Not Transfer the Copyright.  In order to transfer the creative work and the copyright during the client’s lifetime or upon death, the client must specifically state that the copyright is being transferred with the creative work.  A gift or bequest of a creative work without a corresponding gift or bequest of the copyright will only pass the creative work to the donee or beneficiary.

2. Copyright Termination Rights Transfer Under Forced Heirship.  There is much uncertainty associated with transferring the client’s copyrights during the client’s lifetime or upon the client’s death, other than by will.  The ability to separate rights from the bundle and transfer them independently enables the creator to control the work’s exposure and profit as he or she may desire.

3. Transfers of Copyrights Other Than Those Made by Will May be Revoked.  Section 203 presents the opportunity for a creator’s surviving spouse and/or children and grandchildren to undo lifetime estate planning transfers if they do not endure to their benefit.  This interferes not only with the creator’s wishes regarding to whom the copyright devolves, but also with desire to avoid probate.  This highlights the need for revisions to Section 203 of the 1976 Act to bar transfers to testamentary substitutes from the right to termination by a creator’s surviving spouse, children, and grandchildren. 

See Michelle Bergeron Spell and Jodi C. Lipka, The Pitfalls Concerning Copyrights that Every Estate Planning Professional Needs to Know When Representing Authors and Artists, Herrick, Sept. 24, 2014.  

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

September 27, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Infamous Rifle Auctioned Online

AuctionThe executor for the estate of Charles Whitman, the infamous shooter in the deadly sniper attack at the University of Texas at Austin in 1966, sold the rifle used in the attack during the settlement of Whitman's estate. The gun was bought by a gun dealer in Wichita Falls, Texas. The rifle has been sold many times over the years and is now up for auction online. The current owner's identity has not been revealed.

See Emily Schmall, Associated Press, Rifle Used in Deadly 1966 Texas Rampage for Sale, WCAX, Sept. 25, 2014.

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

September 27, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Divided at Death

Gavel2

In Wilson v. Wilson, a divorced couple was at odds with each other over where to bury the ashes over their 23-year-old son, who was killed tragically in a car crash.  When he died, he left no will, and his parents were the co-personal representatives and sole beneficiaries of his estate.  They agreed to have his body cremated, but could not agree on what to do with the ashes. 

William, the father, petitioned the Florida probate court to declare the ashes ‘property’ to be apportioned between he and his ex-wife, Lili, as the beneficiaries of the estate under the probate code.  Lili did not want the ashes divided for religious reasons, and argued the ashes were not property and not subject to ownership by anyone.    

While courts have recognized that a person has the right to dictate what should be done with his own body when he dies, neither probate nor intestate succession statutes govern what happens to the body of a decedent.  This is because a person does not have a property interest in his own body while he is a live.  Hence, a decedent’s corpse has never been an asset of his estate when he dies.  In this case, the court held that the ashes were not property, and therefore could not be partitioned and divided between his parents. 

In an order appealed from in Wilson, the probate court had given the parents 30 days to try to reach an agreement about what to do and suggested that if they could not figure it out on their own, then the court might appoint a curator to make the decision for them.  Because there is no Florida law specifically governing the disposition of bodily remains, there is not much else the courts could do for them. 

See John T. Brooks and Jena L. Levin, May He Rest In Pieces? Wealth Management, Sept. 24, 2014.

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

September 26, 2014 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

Article on Testamentary Succession, New Technologies and Recodification

Mariusz.zalucki

Mariusz Zalucki (Andrzej Frycz Modrzewski Krakow University College) recently published an article entitled, Testamentary Succession, New Technologies and Recodification: On the Research that Needs to Be Conducted, Societas Et Iurisprudentia 2014, Vol. II No. 2.  Provided below is the abstract from SSRN:

In view of the fact that one of the main tasks of modern inheritance law is to connect the available legal structures with the shape of property relations existing in the society and to favour solutions which enable to make the most of the testator’s estate after his or her death, the author concludes that a research needs to be conducted to examine what consequences in this field of law follow, inter alia, from the wide availability of audio and video digital recorders, and what are legal consequences of registering the last will of the testator using such equipment, e.g. if in such context, can we call a videotestament a newly developing form of estate disposition. In this scope projects should search for connections between the above-indicated technical equipment and the possibilities of fulfilling the last will of the testator, to analyze if they may be useful for applying the principle of testamentary freedom present in inheritance law and to explain if the application of such equipment by the testator will facilitate or hinder the execution of testator’s will mortis causa.

September 25, 2014 in Articles, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Murder Suspect Ordered to Return Father's Estate

Gavel2

When Susan Van Note was charged with murdering her father, authorities discovered that it had only been four months after she was appointed the personal representative of her father’s Missouri estate. 

The Missouri Appeals court said Tuesday that Van Note could be held in the Clay County Jail until she repays at least part of her father’s estate.  The appeals court noted in its eight-page opinion that, as the estate’s personal representative, Van Note had “made numerous distributions of property to herself including real property, personal property, and cash,” and then she had “sold several of the pieces of real property she had distributed to herself during that time.”  Court records estimate Van Note’s father’s estate to be at least $1.6 million. 

It is alleged Van Note shot and stabbed her father’s companion Sharon Dickson in October 2010.  Her father was also shot in the attack, but survived and was transported to the University Hospital in Columbia.  The next day, Van Note showed hospital officials a durable power of attorney document giving her the authority to make her father’s health care decisions, and she said he preferred death rather than being kept alive by medical intervention.  Once life support was withdrawn he died.  Prosecutors later charged Van note with forgery for that document and with first-degree murder.  Her trial is set to begin next February. 

See Bob Watson, Court Upholds Order for Murder Suspect to Return Part of Father’s Estate, News Tribune, Sept. 24, 2014. 

September 25, 2014 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0) | TrackBack (0)

Settlement of an Estate

ChecklistIn addition to working through estate planning considerations and decisions, and drafting documents such as wills and trust instruments, the estate planning process also includes the actual settling of the estate. Here are some of the steps included in the settlement process that puts the plans into action:

  • All assets in the deceased person's home are collected and cataloged
  • The collected items are appraised
  • Funeral arrangements are made
  • The surviving pets are placed in a new home
  • The bills of a surviving spouse have to be paid
  • Will and trust beneficiaries are notified
  • The will if filed with the probate court
  • Creditors make claims and are paid
  • Estate tax returns are filed if needed
  • Assets are distributed to the indicated beneficiaries
  • A closing letter is received from the IRS
  • The estate is officially closed

See Braden Lammers, What's an Estate Settlement Officer Do, Business First, Sept. 8, 2014.

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

September 25, 2014 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Dividing Art in Contentious Times

Art1

During divorce proceedings or when a family member leaves behind a large estate, some of the most contentious fights that erupt are over the artwork.  “I’d put it in the same category as child-custody battles,” says family attorney Suzanne Landers.  “It takes far longer to decide who gets what painting or sculpture than it does to divvy up houses, cars or even money.” 

However, there are a few basic principles on how to decide (peaceably and equitably) who gets what.  For divorcing couples, the first step is to develop a detailed list of all the art bought before and during the marriage.  Art bought or obtained before the marriage, or acquired after the couple has separated or filed for divorce is not considered marital property and belongs to the same spouse who purchased it originally.   It may also be a good idea for couples to hire an appraiser.  Artworks may then be divided equally by value, or other assets can be made part of the bargaining—the house, the vacation home, etc. 

Decisions about art should be ingrained within the estate planning process.  Like houses, art that passes at death receives a step-up in value for tax purposes.  Sometimes collectors will sell art to help cover the cost of estate taxes.  By placing the art in a tax-exempt charitable remainder unitrust, the collector can receive distributions from the sale for the rest of his or her life, taxable as ordinary income, allowing the collector to avoid a 28 percent capital-gains tax.  When the collector dies, remaining distributions go to a designated charity.  If an art collection is donated to a nonprofit, the gift can be made all at once or in installments. 

See Daniel Grant, Tips for Dividing Art in a Divorce or Death, The Wall Street Journal, Sept. 21, 2014. 

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

September 24, 2014 in Estate Administration, Estate Planning - Generally, Gift Tax, Trusts | Permalink | Comments (0) | TrackBack (0)