Wills, Trusts & Estates Prof Blog

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

Sunday, June 17, 2018

Court Reinstates Doctor-Assisted Suicide in California

CaliflagLast month Judge Daniel Ottolia of Riverside County Superior Court declared a state law allowing terminally ill patients will months or less to live to receive prescriptions to end their lives unconstitutional, but not on its merits. The judge ruled that it had been improperly passed during a special session of the legislature. The state appeals court overturned that ruling and reinstated the law by an immediate state, but gave opponents until July 2, 2018 to file objections.

The Life Legal Defense Foundation, American Academy of Medical Ethics and several physicians were among those who sued to have the law overturned, claiming that the law violates the equal protection and due process clauses of the United States and California constitutions. Proponents of the End of Life Option, law such as Kevin Díaz, national director of legal advocacy for Compassion & Choices, seeing the ruling of the Fourth District Court of Appeals in Riverside sees the stay as " [A] huge win for many terminally ill Californians with six months or less to live because it could take years for the courts to resolve this case."

The first state to allow physician-assisted suicide in America was Oregon in 1997. California's law went into effect on June 9, 2016. Vermont, Washington, Colorado, Washington D.C., and Hawaii all provide end of life option laws for terminally ill patients.

See Court Reinstates Doctor-Assisted Suicide in California, KVOA.com, June 16, 2018.

June 17, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, New Cases, New Legislation | Permalink | Comments (0)

Article on Note: Solving America’s Long-Term Care Financing Crisis: Financing Universal Long-Term Care Insurance with a Mandatory Federal Income Tax Surcharge that Increases with Age

LtcZachary Anderson recently published an Article entitled, Note: Solving America’s Long-Term Care Financing Crisis: Financing Universal Long-Term Care Insurance with a Mandatory Federal Income Tax Surcharge that Increases with Age, 25 Elder L.J. 473-507, (2018). Provided below is an abstract of the Article:

As America’s elderly population rapidly grows, the number of elders that will require Long-Term Care (“LTC”) will correspondingly increase. Many elders lack the financial resources to pay for such care, and existing government programs that currently pay for LTC are underfinanced. While solutions have been proposed, no proposed solution has solved the core issue: how will millions of elders pay for LTC? It is imperative that a viable LTC financing reform solution be introduced and implemented. This Note analyzes a few of the many proposed solutions, establishes a framework that a viable solution should satisfy, and finally proposes a financing solution that could solve the LTC financing crisis.

June 17, 2018 in Articles, Elder Law, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Saturday, June 16, 2018

Being an Executor is an Important and Often Risky Task

Will and testamentWriting out a will is often pushed back on a person's agenda, as well as updating it when important life changed occur. There are are potential risks that happen if you fail to do either of these, such as their assets and possession landing with a person that they never intended to benefit.

Another undertaking that is crucial is assigning an executor. Though when the person officially takes on the role who will already have passed, the job is an important one with several possible pitfalls. The person you designated should understand that it could be a time-consuming and highly demanding job - especially when performed correctly. Finding tax documents, insurance policies, bank accounts, debt records, paying off any bills, etc. could take up a huge chunk of time.

It's also important for the executor to correctly file the appropriate taxes for the estate as if this is not done timely the executor themselves could be billed for late fees and penalties. The courts have recognized that it is the responsibility of the person conducting the probate process to pay the taxes, so the law has been continuously upheld.

See Julian Block, When You Write Your Will, Don't Mess This Up, Market Watch, June 12, 2018.

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

June 16, 2018 in Estate Planning - Generally, Gift Tax, Income Tax, Intestate Succession, Wills | Permalink | Comments (0)

CLE on Estate Planning from A to Z

CLEThe National Business Institute is holding conference entitled, Estate Planning from A to Z, on Tuesday, June 26, 2018, at the Sheraton Wilmington South Hotel in New Castle, Delaware. Provided below is a description of the event:

Program Description

A Detailed Overview of the Estate Planning Procedure and Strategy

Do you have all the knowledge and skills you need to draft tailored testamentary documents and minimize taxable estate for each of your clients? This comprehensive course will become your ultimate guide to estate planning. You will receive tips, sample forms and answers to your most pressing questions to help you excel. Get the latest knowledge on effective will and trust planning techniques - register today!

  • Stave off conflicts of interest with a clear determination of who your client is from the start.
  • Get practical will and trust drafting skills to speed up the process and give the testator's last wishes power.
  • Minimize the taxable estate with effective tax planning techniques.
  • Explore the functions and mechanics of major trust structures - and make certain you choose the right tool for each job.
  • Make sure your remarried and unmarried clients know the default inheritance laws and help them make sure the right beneficiaries are assigned.
  • Help your clients make the tough medical decisions regarding long-term care, end-of-life and organ donation.

Who Should Attend

This basic-to-intermediate level seminar is designed for:

  • Attorneys
  • Estate and Financial Planners
  • Trust Officers
  • Paralegals
  • Accountants

Course Content

  1. Client Screening and Intake
  2. Key Elements of Effective Wills
  3. Basic Tax Planning
  4. Documenting Long-Term Care, Incapacity and End-of-Life Decisions
  5. Trusts 101
  6. Planning for Unmarried and Remarried Couples
  7. Ethical Considerations

Continuing Education Credit

Continuing Legal Education

Credit Hrs State
CLE 6.00 -  DE*
CLE 7.20 -  NJ*
CLE 6.00 -  PA*

Financial Planners – Financial Planners: 7.00

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 7.00 *

* denotes specialty credits

June 16, 2018 in Conferences & CLE, Death Event Planning, Estate Planning - Generally, Estate Tax, Gift Tax, Guardianship, Trusts, Wills | Permalink | Comments (0)

Friday, June 15, 2018

Tom Wolfe's Wife of Years to Inherit Majority of His Estate

WolfeAuthor Tom Wolfe passed away last month of an unidentified infection in New York City and his will was filed in Manhattan Surrogate’s Court on Thursday. The 12-page document revealed that the writer left all of his personal property to his wife of 40 years, Sheila, as well as "all my right, title and interest to any real property and any cooperative apartment used by me or my family as a residence…" He left the interests to his books to his two adult children, Alexandra and Tommy.

"While there isn’t an extensive breakdown of how much Wolfe was worth, probate paperwork indicates that his estate is valued north of $500,000." Wolfe's will also directed that he desired to be cremated.

Wolfe was a writer that captured the essence of the culture of America for 50 years, writing such books as The Bonfire of the Vanities, The Right Stuff, and The Electric Kool-Aid Acid Test.

See Ariel Zilber, Tom Wolfe's Will Reveals He Left the Bulk of His Fortune to Hife Wife of Years and Asked to be Cremated, Daily Mail, June 14, 2018.

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

June 15, 2018 in Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Book on Selected Statutes on Trusts and Estates, 2018

Statute bookMark L. Ascher & Grayson M.P. McCouch recently published a a book entitled, Selected Statutes on Trusts and Estates, 2018 ed. (2018). Provided below is some information about the book:

This casebook statutory supplement meets the needs of students in basic and advanced courses on wills, trusts, decedents' estates, fiduciary administration, and future interests, providing a compendium of essential uniform act provisions and official comments. It covers a wide range of topics, including: intestacy; wills; probate administration; nonprobate transfers; disclaimers; principal and income; prudent investments; perpetuities; trusts (including trust decanting and directed trusts); powers of appointment; and powers of attorney. The previous edition has been updated to include the recently-promulgated Uniform Directed Trust Act and related conforming amendments.

June 15, 2018 in Books - For Practitioners, Estate Planning - Generally, Guardianship, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Viral Photo of Nigerian Man Being Buried With $90,000 BMW SUV

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-06-15/590d1b7d-d20f-4253-aaa4-c72ba6328d50.pngA Facebook picture supposedly showing a Nigerian man being buried with a brand new BMW X6 SUV in a small village in Nigeria recently went viral. The story was picked up by several news stations and continued to be shared via social media. Upon further investigation, the picture and story most likely is not legitimate.

The picture was originally posted onto the account of Nigerian filmmaker and artist Zevi Gins. Several commentators appeared to be getting annoyed by the rumor of waste and selfishness the photo stirred up, saying such things as "this is a film that's being directed by Tchidi chikere." Also, it appeared that numerous people recognized in the picture were well known Nigerian actors and actresses.

See Gary Gastelu, Photo of Nigerian Man Allegedly Being Buried in New BMW SUV Goes Viral, Fox News, June 13, 2018.

June 15, 2018 in Current Events, Estate Planning - Generally, Humor | Permalink | Comments (0)

Article on NOTE: Uncle Sam Killed Grandma: How The Estate Tax Can Help Alleviate Medicare Uncertainty

Uncle samAlexander G. Karl recently published an Article entitled, NOTE: Uncle Sam Killed Grandma: How The Estate Tax Can Help Alleviate Medicare Uncertainty, 26 Elder L.J. 443 (2018). Provided below is an abstract of the Article:

In the United States, Medicare is the single largest purchaser of medical services. This government program is primarily used by the elderly population. The future of Medicare is murky as there are many obstacles hindering its funding. It is more important than ever to ensure funding for this governmental program. The funding for Medicare has been reduced, even though the aging baby boomer generation has caused an exponential growth in enrollment.

Wealthy individuals who are in similar health conditions as those who are Medicare beneficiaries are subject to the Estate Tax. This tax is calculated based on the estate's value before it is passed to its heirs. As more baby boomers age, there will be more deaths and more estates that are taxable. Reformation of the Estate Tax will generate more revenue and, due to its relationship with Medicare, can justifiably be used to fund Medicare.

This Note: surveys the history and functionality of Medicare and the Estate Tax. This Note: also analyzes the impacts of budget cuts. It suggests a congressional policy change that would allow the collected Estate Tax revenue to fund Medicare. To do so, the Estate Tax must be reformed in two steps: (1) lower the exclusion amount while raising the maximum tax rate; and (2) limit the Grantor Retained Annuity Trusts to prevent large transfers of untaxed wealth.


June 15, 2018 in Articles, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 14, 2018

Colleges Get Tax Reprieve in Push to Value Endowment Assets

EmoryAround 30 private universities across the country will be liable for a 1.4% endowment tax on net investment earnings for the fiscal year starting July 1, 2018. To fit the criteria to be responsible to pay the tax schools must have: more than 500 tuition-paying students and net assets of at least $500,000 per student. However, the Internal Revenue Service procured some guidance to the colleges: "they won’t be taxed on unrealized income from their billions of dollars in assets before the levy was approved," thus using a "stepped-up" basis for calculating the tax owed.

“That’s very good news -- it will give colleges and universities an important element of certainty as they prepare to implement the new tax,” Hamill said, senior vice president of the National Association of College and University Business Officers, the trade group that sought the use of the stepped-up asset values.

Two bills involving the endowment tax have been introduced into the House of Representatives: One that will completely repeal the tax, and another that will waive the tax payment for universities that  spend a quarter of their annual earnings on middle-class tuition relief.

See Janet Lorin, Colleges Get Tax Reprieve in Push to Value Endowment Assets, Bloomberg, June 8, 2018.

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

June 14, 2018 in Current Affairs, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

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)