Wills, Trusts & Estates Prof Blog

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

Sunday, June 25, 2017

Article on The Roman Law of Succession. An Overview

Roman armyRafael Domingo recently published an Article entitled, The Roman Law of Succession. An Overview, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

The law of succession addresses the legal destiny of a person’s rights and duties after his death. Closely tied to the fundamental and peculiar features of Roman family and society, the law of succession presents vast difficulties for Roman lawyers because of its highly sophisticated nature and lack of systematic coherence. It is no coincidence that eleven out of fifty books in the Digest address the law of succession.

The development of the law of succession reflects important social changes in Roman economic structures and value systems. It echoes the progression from an old Roman agrarian society to a new commercial one. From a technical legal perspective, the law of succession reveals the tension between civil law and praetorian law. Without formally altering the civil law, the praetor introduced fundamental adjustments to protect emancipated persons, blood relatives in the female line, and surviving spouses, among others.

June 25, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Saturday, June 24, 2017

Article on How Can the Property (Relationships) Act Be ‘Trusted’?

IllusoryEmily Devaney recently published an Article entitled, How Can the Property (Relationships) Act Be ‘Trusted’? An Analysis of Trust Law and its Interface with Relationship Property Law, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Deficiencies in the Property (Relationships) Act 1976 (PRA) have led to allegations of sham trusts, alter ego trusts, the bundle of rights doctrine and illusory trusts. These claims are not the correct means to deal with the failure of legislation to fulfil its intention. They are ill-suited for trust law and are indicative of a growing pressure to allow access to trust capital, and to prevent excessive control of trusts defeating the rightful entitlement of a spouse to equal sharing of relationship property. In order to clarify the law of trusts and of relationship property this article recommends reform to s 44C of the PRA, to allow access to trust capital. It recommends repealing s 182 of the Family Proceedings Act. This article stands for the proposition that these reforms alone are insufficient. Indications of what constitutes intent to defeat rights should be included in s 44. Effective control of trust property by a defendant who is the claimants spouse or partner, should be an indication of intent to defeat rights that will allow the disposition to be set aside. These reforms will give effect to the purpose of the PRA and clarify trust law.

 

June 24, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

12 Strange Funerals and Funeral Traditions

2017-Chevrolet-Corvette-Grand-Sport-201Funerals are generally somber, mournful events. The loss of a loved one is always a difficult, heart-wrenching experience and the funeral service mirrors this loss. Occasionally though, the life of the deceased may have been so unique or peculiar that the dreary edge of the funeral is dulled by an atmosphere reflecting the distinctive personality of the departed.

Miriam Banks was always the life of the party. This did not change at her funeral. Her family members propped up her carcass and placed a cigarette in her hand and her favorite beer at the table. Banks’s service was also replete with disco balls and dance music. While a party dynamic may not be to your taste, others have made their services unique by taking long-loved possessions to their graves. George Swanson was buried with his 1994 Chevrolet Corvette. Car aficionados in attendance may have been weeping for both Swanson’s passing and the loss of the car; it only had 27,000 original miles on it.

Whatever your individual pleasure, a funeral may maintain a traditional, somber tenor, or it may take on the special personality of the deceased to create a more palatable memory for the grieving.

See Amanda Green, 12 Strange Funerals and Funeral Traditions, Mental Floss, January 11, 2016.

June 24, 2017 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Friday, June 23, 2017

Article on Choosing Marriage

Terrible-marriage-825x510Kaiponanea T. Matsumura recently published an Article entitled, Choosing Marriage, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Questions about the choice to marry have dominated the public discourse in recent years. But with the spotlight focused on the question of who can marry whom, few have paid attention to how a couple crosses marriage’s legal threshold. Yet a steady stream of cases in recent years — in which individuals have litigated whether they legally married — has revealed that answers to the latter question can have monumental consequences for the individuals who risk being deemed married or unmarried against their will.

This Article has descriptive and normative goals. Descriptively, it exposes the pervasive legal uncertainty regarding both the role and definition of marital choice. It also reveals the stakes of that choice for individuals, the state, and third parties. Normatively, it argues that a valid choice to marry must promote autonomy by facilitating self-authorship and manifesting consent to the legal rights and obligations of marriage. To perform these functions, the relevant act must be objectively measurable and intelligible to the spouses and the law. For this definition to be sufficiently protective of individual interests, states must adopt rigorous standards for establishing consent. Formalities are often crucial in this process, as they are the currency through which couples most commonly telegraph marriage or non-marriage, but they are not exclusive. This Article considers how burdens of proof, the timing and scope of relief, and objective conduct can also establish a valid choice to marry.

June 23, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Five Ways to Bulletproof Your Estate Plan

PandaEstate planning involves more than simply drafting a will. It is a comprehensive strategy that has many facets. Competent estate planners can help protect you and your loved ones during retirement, set up plans in case of incapacity, help avoid taxes, and make sure assets are distributed according to a decedent’s wishes. Barry Kozak, an estate lawyer with October Three Consulting in Chicago, tells his students that estate planning does not have to be overly complicated. He offers five simple steps to make life and end-of-life easier on loved ones.

First, Kozak suggests pre-paying for a funeral. Planning and paying now takes a significant burden off a mourning spouse or child. Second, set up a family committee to manage a revocable trust. In case of mental incapacity, a family disability committee may help avoid court and dealing with an adult guardianship hearing. Next, use a different lawyer for each spouse when drafting an estate plan. While not a romantic notion, this option helps avoid conflicts in the future. Fourth, do not underestimate your life expectancy. A man reaching age sixty-five can expect to live, on average, to age eighty-four. Finally, match your lifestyle to your retirement income. Make sure to calculate your income needs during retirement. If you do not have enough, you may need to work longer or modify your retirement plans.

See Tom Anderson, Five Ways to Bulletproof Your Estate Plan, CNBC, April 7, 2017.

June 23, 2017 in Death Event Planning, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Article on The Commissioners' Model of Ante-Mortem Probate

TimeJoe R. Savoie recently published an Article entitled, The Commissioners' Model of Ante-Mortem Probate, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the 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 23, 2017 in Articles, Current Events, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, June 22, 2017

British Man Helped to Accept His Wife's Death by Six-Day Vigil

779Russell Davison held a six-day vigil for his deceased wife, Wendy, claiming the prolonged ceremony helped his family in coming to terms with her death. Wendy died at age fifty, ten years after being diagnosed with cervical cancer. The natural health therapist and the hypnotherapist refused chemotherapy and radiation as options to threat the cancer. Davidson believes this alternative method of treatment added at least five years to Wendy’s life.

When the inevitable spread of the cancer finally caused Wendy to suffer unbearable pain, the couple returned home from their world travels. When looking to end-of-life options, Davidson wanted the ceremony to mirror Wendy’s chosen treatment: far from the norm. So, he placed his wife’s body in a coffin lined with organic cotton and invited family and friends to come and spend time with the deceased. Davidson believes this time helped his family process and accept Wendy’s passing.

See Francis Perraudin, British Man Helped to Accept His Wife's Death by Six-Day Vigil, The Guardian, May 9, 2017.

June 22, 2017 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Funeral Pricing Comparison Website Targeted with Legal Threats

FuneralIn an effort to increase transparency, Colin Wong established Gathered Here, a price-comparison website listing prices and posting reviews of funeral homes across Australia. To gather information, Wong posed as a mystery shopper and requested pricing information from more than 600 businesses. He received quotes for high-expense items like caskets and fees for funeral services. Wong, himself a former solicitor, expected pushback from the industry. His expectations came to fruition as he has since been the target of numerous legal threats.

The Australian end-of-life service industry has been heavily criticized for being opportunistic; taking advantage of the grief-stricken in their greatest time of need. InvoCare, currently controlling 40% of this market, has shouldered some of the blame for these unethical pricing mechanisms. Not one of the companies taking legal action, an InvoCare spokeswoman said that the company already had pricing available on its website and agreed that there should be industry-wide transparency.

See Elle Hunt, Funeral Pricing Comparison Website Targeted with Legal Threats, The Guardian, May 29, 2017.

June 22, 2017 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Estate Planning Attorneys May Be Held Liable in Legal Malpractice Lawsuits

Better-call-SaulGenerally, estate-planning attorneys in California who draft wills and trusts can only be sued by the client who hired them. There is a narrow exception to this rule. An attorney may be liable to a beneficiary when the attorney’s error harms the intended beneficiaries of the will or trust. The court will use a balancing test to determine if the attorney should be accountable for a drafting mistake. Among these factors are the extent of harm, foreseeability, and proximate cause. When all the balancing factors are met, a harmed beneficiary may successfully file suit against the drafting attorney. Of course, potential damages should be sufficient to warrant the suit; litigation may not be worth the effort in every circumstance.

See Keith Davidson, Estate Planning Attorneys May Be Held Liable in Legal Malpractice Lawsuits Where Intended Beneficiaries Lose Inheritance Under a California Trust or Will Due To Attorney Error, Albertson & Davidson, August 4, 2016.

June 22, 2017 in Estate Planning - Generally, Malpractice | Permalink | Comments (0)

5 Ways to Make a Great Impression After You’re Dead

Do-not-go-gentleMost people want to be remembered in a positive light after their passing. There exists in many of us a deep-seated fear that, because our words have forked no lightning, that we will go gentle into that good night and be forgotten. A simple solution to cementing a glowing legacy is through the use of an insurance policy. Insurance policies can be used to support immediate family during their time of grief and beyond. The life insurance death benefit may also be provided to the decedent’s favorite charity or used to set up a named scholarship fund. There are many methods of distribution for a life-insurance death benefit, but if used well, it may have a lasting impact on loved ones and communities well after death.

See Brittney Burgett, 5 Ways to Make a Great Impression After You’re Dead, MarketWatch, May 8, 2017.

June 22, 2017 in Estate Planning - Generally | Permalink | Comments (0)