Wills, Trusts & Estates Prof Blog

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

Sunday, April 22, 2018

ACTEC 2018 Annual Meeting Musings

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-22/3c313963-e074-4e53-a60b-706f04691899.pngSteve R. Akers recently published his ACTEC 2018 Annual Meeting Musings. In it, he discusses the following: 1) planning after the Tax Cuts and Jobs Act, 2) trust amendments outside §642(c), 3) life expectancies, 4) family demographics, 5) the family structure, and 6) planning for contemporary families. 

Special thanks to Scott M. Deke for bringing this article to my attention.


April 22, 2018 in Conferences & CLE, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Reflections of a Dementia Specialist: I Want to Stop Working Before I Embarrass Myself

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-22/e8d81a82-b896-4b1c-93cb-c59b909e77d4.pngKirk R. Daffner’s wife believes that he loves his work too much to ever retire. But Daffner, a practicing neurologist and the clinical director of an Alzheimer’s center, has concerns about his ability to continue working into his 60s. He has seen the terrible toll dementia and cognitive decline can take on professionals. Daffner’s tentative solution is an “occupational living will.” This is a document designed like a medical advanced directive but very specifically tailored for one’s professional life. Part of this overall process involves taking the time to craft a written document that details personal advanced directives for work, dependent on cognitive ability, that represent how you would want to minimally comport yourself in a professional environment. The next step, and possibly the most difficult, is sharing the document with others who you can trust and rely on for continued support. Though this topic can be sobering, Daffner’s motivation stems from a desire to avoid being that older physician who offers mediocre care to patients or embarrasses himself in front of colleagues, damaging a reputation built over decades of dedicated practice.

See Kirk R. Daffner, Reflections of a Dementia Specialist: I Want to Stop Working Before I Embarrass Myself, The Washington Post, April 15, 2018.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

April 22, 2018 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, April 21, 2018

CLE on Estate Planning for Creditor Protection: Using the Tools of Our Trade

0The American Law Institute is holding a conference entitled, Estate Planning for Creditor Protection: Using the Tools of Our Trade, which will take place Wednesday, May 9, 2018 via telephone seminar and audio webcast. Provided below is a description of the event:

Why You Should Attend

A good estate plan anticipates the unexpected – whether a divorce, bankruptcy, lawsuit, or creditor claim – and puts into place the proper tools to protect the client’s interests and assets. There are many tools available to estate planners to help them achieve their clients’ creditor-protection objectives without the need for a self-settled asset protection trust. Many of these tools have been available under the law for years, while others represent recent developments in the laws surrounding creditor protection.

Take this 90 minute webcast to explore the creditor protection options available to your clients and ensure you are taking advantage of all of the tools at your disposal!

What You Will Learn

A panel of experienced estate planners – all fellows of the American College of Trust and Estate Counsel – will discuss:

State legislation designed to provide protection for:

- inherited IRAs and other retirement plan assets

- life insurance

- annuities

- tenancy by the entireties property (including such property that is transferred to a trust)

Third-party spendthrift trusts

Strategies for retaining or reacquiring interests (or potential interests) in trusts other than asset protection trusts while providing creditor protection to the grantor

State alternative entities laws and remedies with respect to those entities (e.g., charging orders) that provide protection

Have a question for the faculty? Send your questions to tsquestions@ali-cle.org. Questions submitted during the program will be answered live by the faculty. In addition, all registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend

Any estate planner or related professional will benefit from listening to this webcast on the various creditor protection tools available for protecting your clients’ assets.

April 21, 2018 in Conferences & CLE, Estate Planning - Generally | Permalink | Comments (0)

Article on Legal Aspects Concerning the Proving of a ‘Will’: Section 63 of the Indian Succession Act, 1925 Read with Section 68 of the Indian Evidence Act, 1872

0Shivam Goel published an Article entitled, Legal Aspects Concerning the Proving of a ‘Will’: Section 63 of the Indian Succession Act, 1925 Read with Section 68 of the Indian Evidence Act, 1872, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

A ‘Will’ is an instrument by which a person makes a disposition of his property to take effect after his death and which is in its own nature ambulatory and revocable during his life. A ‘Will’ is an obstruction in the line of succession.

Section 63 of the Indian Succession Act, 1925 declares the substantive law regarding the execution of an unprivileged ‘Will’ and it mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses, it being not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the ‘Will’.

On a combined reading of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, it is clear that a person propounding the ‘Will’ must prove that the ‘Will’ was duly and validly executed, and this cannot be done by simply proving that the signature on the ‘Will’ is that of the testator but by also proving that the attestations made on the ‘Will’ are in the manner (and form) as required by clause (c) of Section 63 of the Indian Succession Act, 1925.

Section 71 of the Indian Evidence Act, 1872 provides that if the attesting witness denies or does not recollect the execution of the document (‘Will’), its execution may be proved by other evidence.

The period of three years (Article 137 of the Limitation Act, 1963) for institution of a petition for grant of probate commences from the point in time when the right to apply for probate accrues to the petitioner.

As per Section 212(2) of the Indian Succession Act, 1925, a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi is not bound to apply for letters of administration (probate). It is optional (and not mandatory) for the above stated categories of persons to seek probate of ‘Will’.

April 21, 2018 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, April 20, 2018

Avicii Smiling with Fans in His Final Days

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-20/238fa12d-1fdd-4ac1-b572-5956b93e6ba5.png28-year-old superstar DJ, Avicii, was found dead Friday morning at a luxury resort in Muscat, Oman. A number of pictures have surfaced of Avicii with fans at the resort taken during his final days. Though the renowned artist had given up on touring in 2016, he still shared a reciprocal passion for his many fans. Neither Avicii’s reps nor law enforcement have issued a formal statement about the circumstances surrounding his death.

See Avicii Smiling with Fans in His Final Days, TMZ, April 20, 2018.

April 20, 2018 in Current Events, Estate Planning - Generally, Music | Permalink | Comments (0)

Article on The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-20/78dbedf4-07d3-4d26-acf9-582d969e5e96.pngMichael J. Graetz published an Article entitled, The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

In this lecture, Michael Graetz contends that the new tax law is unstable. This is hardly surprising because it was rushed through Congress in record time with only Republican votes and no ability for public comments on its changes. The new rules create significant new differences in tax burdens based on what kind of business is conducted, where goods and services are bought and sold, whether individual workers are employees or independent contractors, and where people live. Finally, although it was estimated to be a $1.5 trillion tax cut over ten years, it's actual cost is likely to be double that amount, producing unsustainable annual deficits and an unacceptable level of public debt. Footnotes have been omitted here. This article is forthcoming in the Yale Law Journal Forum.

April 20, 2018 in Articles, Current Affairs, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Prince’s Overdose Death Results in No Criminal Charges

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-20/9c02d950-c4f4-4437-9ca5-f6084e51fa2c.pngPrince Rogers Nelson was found dead in an elevator in Paisley Park at the age of 57. A toxicology report revealed high concentrations of fentanyl in the singer’s blood, stomach, and liver. Though fentanyl is a legal prescription, it is often used to manufacture knock-off pills, like oxycodone and other painkillers, that are sold on the black market. Minnesota law enforcement announced Thursday that no one would be charged for Prince’s death as they could not determine who actually provided the drug that killed him. Mark Metz, a Carver county attorney, said that they “ have no direct evidence that a specific person provided the fentanyl to Prince.” He also noted that the investigation found “no sinister motive, intent or conspiracy to murder Prince.”

See Joe Coscarelli & Sheila M. Eldred, Prince’s Overdose Death Results in No Criminal Charges, The New York Times, April 19, 2018.

April 20, 2018 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Article on Meeting the Nexus Requirement for the Taxation of Interstate E-Commerce – Sales and Use Tax Rules as Applied to Electronic Commerce in the United States.

Steve M. Windham published an Article entitled, Meeting the Nexus Requirement for the Taxation of Interstate E-Commerce – Sales and Use Tax Rules as Applied to Electronic Commerce in the United States., Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The Commerce Clause and the Due Process Clause of the United States Constitution govern the taxation of interstate commerce. With evolving technology and the Internet in particular, the landscape of sales and use tax is evolving. E-Commerce is more than simply a new twist on an old idea. With the advent of the Internet and E-Commerce, technology is pushing the envelope of our current tax system. Since the United States has been a country, there has been interstate commerce. However, the Internet is unique in the nature of how it works, who uses it, compliance issues, as well as the overall framework of E-Commerce. The Internet connects somewhere between 817 million to one billion people worldwide, with some 31 million domain names registered.

E-Commerce utilizes cutting-edge technology which has caused lawmakers to reconsider the traditional rules of taxation. Consider that the internet has remote servers located throughout not only across the nation, but the world, and the rules governing taxation of E-Commerce suddenly lose clarity. There is no longer a clearly defined border. The Internet can be accessed nearly anywhere in the world, payments can be made using electronic cash as well as by every other form of electronic payment. The current US tax system is ill-equipped to accommodate the various administrative and compliance issues associated with the proliferation of E-Commerce, as there are currently over 7,500 sales and use tax jurisdictions in the United States.

Among the various concerns of E-Commerce is the issue of whether a company must collect sales tax for an out of state purchase that was transacted online. Conversely, when does a state have the right to collect use tax on an item that was purchased online from an out-of-state vendor? The particular focus of this paper is on the various requirements that must be met to collect the sales and use taxes on e-commerce transactions, as well as the ever-evolving legal landscape which governs interstate commerce.

The United States Supreme Court has held that a physical presence is required to establish the nexus requirement for the collection of state sales tax. Without this nexus requirement a state is not required to collect sales tax on that particular purchase. However, the state to where the item is being sent to for storage, usage or consumption may impose a use tax which is typically equal to what the sales tax would have been had the item been purchased in the destination state. Nexus is of paramount concern to online retailers and purchasers. The US Supreme Court has determined that in order to be Constitutional that the act of imposing the burden of collecting a state’s use tax must conform to the Due Process and Commerce Clause of the US Constitution. The case of Quill Corporation v. North Dakota is the crux of the current sales and use tax collection issue as it pertains to interstate commerce. Yet, while the US Supreme Court decision on Quill Corporation v. North Dakota is the basis for our current interstate sales and use tax laws, many feel that there must be a better way of dealing with this issue.

In order for a state to require a vendor to collect sales tax the state must abide by the Due Process and the Commerce Clauses of the US Constitution. Under the Due Process Clause there must be some minimum connection between the taxing state and the person, property, or transaction it seeks to tax. In order to satisfy the Commerce Clause of the US Constitution the US Supreme Court has devised a four-part test. Under this test, a tax affecting interstate commerce will survive a challenge based on the Commerce Clause if: 1) substantial nexus exists with the taxing state, 2) the tax is fairly apportioned, 3) the tax does not discriminate against interstate commerce and 4) the tax is fairly related to the services provided by the state. The first and fourth prongs are intended to ensure that a tax does not unduly burden commerce. The second and third prongs of the test relate to the goal of preventing discrimination against out-of-state businesses.9 The new Streamlined Sales Tax Program is taking form and has the potential to dramatically change the rules for collection of use taxes by out-of-state vendors. Something to consider is that even though the Streamlined Sales Tax Program has the official support of several states and several major retailers we do not yet know how it will stand up in the courts. It stands in defiance of the United States Constitution and two major United States Supreme Court Rulings.

The Internet has effectively eliminated not only state, but national borders on the information superhighway. As a result, many transactions are at risk of being subjected to tax in more than one jurisdiction — sometimes even in more than one country!

Because of the complexities of the Internet and the fact that technology has outpaced the current tax code, taxation of e-commerce is rarely as simple as it may seem. Additionally, there are a host of other taxes that may or may not be imposed on companies doing business on the Internet.

These in turn affect the overall price structure of e-commerce transactions, which in turn further affect the taxation of e-commerce. The World Wide Web is a tangled a web of legal jurisdictions and tax compliance and enforcement issues.

April 20, 2018 in Articles, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Thursday, April 19, 2018

Article on Due Process of Lawmaking Revisited

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-19/02de7813-afaa-415f-83ef-09be83183e38.pngStephen Gardbaum published an Article entitled, Due Process of Lawmaking Revisited, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Due to the role of ultra-wealthy party donors in its enactment, the recent Republican tax law can be seen as a case study in the systemic corruption of Congress that has concerned many commentators. For the most part, the solutions they have offered have been political in nature. In the short-term, the unpopularity of measures that so disproportionately benefit the very few will likely impose electoral costs that no party can continue to bear. In the longer term, congressional action or constitutional amendment is required to radically reform the current system of campaign finance. Regardless of the prospects of such future political responses, is there a legal solution in the here and now that might be able to deal with any part of the problem the critics have identified? This Article suggests there is. Beyond the very limited scope and deterrent value of the criminal law of bribery, it proposes an independent constitutional response in the form of the Due Process Clause of the Fifth Amendment. Federal statutes that are enacted by means of illegitimate procedures, including the paying or withholding of donations for votes, violate the constitutional requirement of due process in lawmaking and should be invalidated by the courts, whether or not such conduct is, or could be, the subject of a successful criminal prosecution.

April 19, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Kentucky Man Leaves $190G in Will for Local Animal Shelter: ‘We Were Ecstatic’

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-19/d3901a0e-1a80-4c65-9c7c-69b9ff09007d.pngJoseph “Tony” Bennett, who passed away last summer, left almost $200,000 to a local animal shelter in his will. The money will help fund the Bennett Saves Initiative, which will collaborate with local veterinarians to spay and neuter animals coming into the shelters. Prior to Bennett’s generous donation, the shelter did not have the resources to spay and neuter all of its animals. The best they could do was to provide new owners with a $75 voucher to help mitigate the cost. Madison County Judge Executive Reagan Taylor said of the donation: “Obviously we were ecstatic. Through his gift in the county, we're going to try and increase our spay and neuter program with these funds.”

See Madeline Farber, Kentucky Man Leaves $190G in Will for Local Animal Shelter: ‘We Were Ecstatic’, Fox News, April 11, 2018.

April 19, 2018 in Estate Planning - Generally, Wills | Permalink | Comments (0)