Saturday, July 26, 2014
Shelly Kreiczer-Levy (College of Law and Business, Ramat Gan, Israel) recently published an article entitled, Intergenerational Relations and the Family Home, Law & Ethics of Human Rights, Vol. 8 Issue 1, 131-160 (May 2014). Provided below is the article’s abstract:
This article examines the issue of intergenerational cohabitation in the family home. Its primary purpose is to demonstrate that current analysis of internal conflicts in the home is lacking, both in terms of identifying the parties’ interests and characterizing the tensions involved. It focuses on a specific three-way conflict between two parents and their adult child and identifies each of their points of view: one parent who wants the adult child to move out, one parent who wants to continue to share her home with the adult child, and the adult child who wants to remain in the home.
The article builds on rich multidisciplinary literature on the meaning of the home. This focus sheds new light on the conflict in two significant manners. First, the disagreement between the parents is characterized as a struggle between two conflicting visions of the home. Each of these visions reflects a different perception of the home, the family, and intergenerational commitments. Second, the focus on the home allows lawyers to acknowledge the position of the adult child, whose interest is completely not sufficiently taken into account in the conventional analysis.
Courts are accepting wills composed on computers, smartphones and even webcams as valid legal documents. Yet an increasing number of disputes are headed to court involving wills left on digital devices.
Celebrity restaurant owner, Daniel Yazbek, initiated the trend for accepting informal digital wills. Yazbek, who ran the $3 million Toko and Tokonoma Japanese restaurant empire wrote will.doc before his holdiay travels. On his way to the airport, he told his business partner that there was a will on his computer incase anything went wrong. Mr. Yazbek committed suicide, and following his death, his brother took their parents to court, arguing will.doc should be upheld despite the fact that it did not possess all necessary legal requirements. In 2012, Justice Michael Slattery of the NSW Supreme Court deemed the will to be valid because there was a strong showing that Daniel created it and intended it to be his final wishes.
Since then, a Queensland court upheld a will typed in the “notes” app of an iPhone before he took his own life. In Victoria, recordings on a webcam were accepted as well.
In all of the aforementioned cases, it was deemed the authors had prepared the documents and they showed clear testamentary intentions. “These cases are setting a precedent that a will doesn’t have to be a traditional written document on a piece of paper.”
See Rachel Olding, Being of Sound Mind and Pixels: Wills In the Digital Age, The Sydney Morning Herald, July 26, 2014.
After Donna Honaker was murdered in her home in Ohio, her estate brought suit to collect the assets that her husband would have inherited under more normal circumstances. The husband, Royce Honaker, has been charged with Donna’s murder, partly based on the 911 call he placed telling authorities he had just killed his wife. Royce did not fight the estate, but rather stated from the beginning that he wanted his portion to go to his four children. A county probate judge has given Royce’s court appointed guardian settlement authority in the case. Donna’s estate includes three real estate properties, a $105,000 life-insurance policy, and two bank accounts. Royce will maintain ownership of his pension and four vehicles.
See Ed Runyan, Estate of Killed Woman Finalized in Trumbull Probate Court, Vindy, July 23, 2014.
Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.
Avi Z. Kestenbaum has written a review on Karen J. Sneddon’s article entitled, Memento Mori: Death and Wills. Provided below is an introduction to the review:
While the process of estate planning should, by its very nature, include the contemplation of our mortality and personal legacy, it often doesn’t. In fact, despite modern society’s general fascination with death and affinity for all things macabre—like zombies and vampires—the personal estate-planning process and documents, such as wills, often are designed to avoid the direct mention of death. This fascinating article delves deeply into society’s changing feelings throughout history regarding the topic of death and our personal reflections when facing it. Moreover, the article advocates a greater emphasis on properly contemplating, reflecting on and embracing the concepts of death and our personal legacies during the estate-planning process, while using candid language regarding death, which will, in turn, make the estate-planning process more of a transformative and genuine experience.
For the rest of the review, see Avi Z. Kestenbaum, Review of Reviews: “Memento Mori: Death and Wills,” 14 Wyoming L. Rev. 211 (2014), Wealth Management, July 24, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, July 25, 2014
Elizabeth Bartholet (Harvard Law School) recently published an article entitled, Intergenerational Justice for Children: Restructuring Adoption, Reproduction and Child Welfare Policy, Law & Ethics of Human Rights, Vol. 8 Issue 1, 103-130 (May 2014). Provided below is the article’s abstract:
An intergenerational justice perspective requires that we look at the condition of the existing generation of children and those to be born in the future. Many millions of the existing generation of children are now in trouble and at high risk of never fulfilling their human potential. These children are in turn unlikely, if they live to produce children, to be capable of providing the nurturing parenting that the next generation will need.
The article’s starting premises are that we should count child interests as of equivalent value to adult interests and that we do owe justice not just to the existing generation of children but to the next generations as well. Justice to the next generations means encouraging the creation of children who will have a good chance to enjoy the pleasures of life, children who will be born healthy and will be brought up by nurturing parents. Given these premises, there is much wrong with current reality and related policy.
We now encourage the reproduction of more children than we can care for, provide limited child welfare enabling poor parents to better care for their children, and discourage adoption both domestic and international. We should reverse these policies. We should change the pronatalist and anti-contraception policies that encourage the reproduction of children who won’t likely be born healthy or receive nurturing care. We should provide child welfare so that poor parents who want to keep and raise their children can do so. We should encourage adoption, both domestic and international.
Backers of a bill that would eradicate the estate tax are pushing for a vote in September since they have achieved enough supporters to exceed a House majority.
The measure aims to end inheritance and generation-skipping transfer taxes as well as make permanent a 35% gift-tax rate with a $5 million lifetime exclusion.
The groups pushing the bill are urging incoming House Majority Leader Kevin McCarthy, R-Calif., to put the measure on the House’s fall agenda. “We feel really good for a September vote.”
Yet even if the Republican majority House approves the bill, it is not likely to be addressed by the Democratic led Senate before the end of the congressional term in December. Bills that fail to get full congressional approval must be re-introduced in 2015.
Moving the bill through the House now is likely to position estate-tax reform for later debate on larger overhaul, “It shows that when tax reform gets going in earnest, this is an important issue to a lot of members.”
See Mark Schoeff Jr., Axing Estate Tax Gains Momentum in House, Investment News, July 22, 2014.
As I have previously discussed, heirs of Samsung Electronics Group’s founder face a $6 billion inheritance tax bill. Samsung Group chairman Lee Kun Hee, 72, is a legendary figure who turned Samsung Electronics into a powerful conglomerate. Yet for the last three months, Lee has been in the hospital since suffering a serious heart attack.
Under Korean inheritance law, an heir must pay fifty percent in tax when inheriting such wealth. Tax attorney Kim Hyeon Jin says avoiding the bill may be possible if the money is placed in a foundation, however, that will cause the Lee family to lose control of some of their assets.
Reports claim that in order to pay for the hefty bill, the Lees plan to open two additional Samsung businesses: Cheil Industries Inc. and Samsung SDS Co.
See Ren Benavidez, Samsung Heirs Could Pay a Massive US $6 Billion Inheritance Tax, China Topix, July 32, 2014.
A scenario commonly encountered within estate planning is when an individual dies while negotiating a separation agreement with their spouse, or when in the midst of divorce proceedings. While a divorce order will void specific bequests to a spouse, merely initiating negotiations or proceedings will not.
In these circumstances, most lawyers will advise their clients to draft a new will and consequently discover whether title to the matrimonial home is held as joint tenants, tenants in common, or individually. Differentiating between these is very important.
When more than one person owns the same property, they can hold title as joint tenants or tenants in common. The main difference is that when a joint tenant passes, title passes to the other owner by right of survivorship. Contrastingly, when a tenant in common dies, their share passes to their heirs.
Since assets held jointly do not pass through the estate, this means that executing a new will excluding a spouse will not disentitle them to their right of survivorship over property held jointly. To effect a disinheritance, it is necessary to sever the joint tenancy.
See Suzana Popovic-Montag and Ian M. Hull, When a Spouse Dies Mid-Divorce, Huff Post Business, July 24, 2014.
A recent survey shows that more people are keeping up with updating their wills than keeping their children up to date with their estate planning decisions. The survey covered wealthy investors, and showed that while only 54% have had the inheritance talk with their children, 75% had strong opinions about their children making wise decisions with their inherited wealth. A survey of heirs showed that prior knowledge of the plan increased satisfaction rates and decreased likelihood of inheritance squabbles with family members.
See Liz Moyer, Inheritance is Still a Taboo Subject in Affluent Families, The Wall Street Journal, July 24, 2014.
The fear of not having enough money to carry through the end of life is a common fear, but a less common fear is having too much money at death. This may be a concern that should also be considered when making spending and estate planning decisions. For those that lived through the Great Depression the idea of sudden and unexpected financial disaster is very real and that lesson has been passed on and created an estate planning focus on how to ensure enough funds and lower risks.
However, it is also important to balance the risk of running out of money with the risk of leaving too much money, which can result in large tax bills or children receiving large inheritances that they are not ready to manage responsibly. Another risk associated with saving too much is that it is not enjoyed by the owner to both provide for themselves and their family while they are living.
See Charlie Jordan, How Dying Too Rich Can Hurt You and Your Estate, Market Watch, July 24, 2014.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.