Wills, Trusts & Estates Prof Blog

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

Thursday, July 20, 2017

Article on Selective Issues in Effective Medicaid Estate Recovery Statutes

NhsRaymond C O'Brien recently published an Article entitled, Selective Issues in Effective Medicaid Estate Recovery Statutes, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Medicaid is a joint federal-state partnership program that provides medical care to the elderly, blind, and disabled poor. Unlike Medicare, Medicaid will pay for long-term care, leading millions of persons in need of such care to “spend-down” income or assets to qualify as sufficiently needy or poor. However, the state can eventually seek recovery of expenditures made through estate recovery programs following the death of both spouses. As it currently stands, states have no choice but to become increasingly vigilant in pursuing private funds in order to pay for Medicaid expenditures. As a result, elderly citizens and their families will continue to face uncertainty over what will become of family assets demanded to pay for long-term care.

This article examines what constitutes an “estate” for purposes of asset recovery to pay for long-term care expenditures. It also analyzes whether it is permissible for estate recovery programs to trace assets of a Medicaid recipient transferred during the recipient’s lifetime, thereby depriving the Medicaid recipient or the recipient’s spouse of an interest in the asset at the time of death. Finally, this article considers whether an annuity purchased to provide exempt income for a recipient’s spouse should be considered a resource sufficient to disqualify an applicant from Medicaid eligibility. The article suggests that with an increase in the elderly population in need of long-term care and increased pressure on the entitlement programs that provide such care, it is crucial that Congress pass comprehensive legislation.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 20, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article on Note: Stop Frustrating the Testator's Intent

TSBB_Frustration-440x293Jeffrey A. Dorman recently published an Article entitled, Note: Stop Frustrating the Testator's Intent: Why the Connecticut Legislature Should Adopt the Harmless Error Rule, 30 Quinn. Prob. Law Jour. 36 (2016). Provided below is an abstract of the Article:

In Connecticut, for over two hundred years, wills, their formation, and their execution have been governed by the formalities of the Wills Act. These formalities, codified in Conn. Gen. Stat. section 45a-251 (2016), outline the strict guidelines that a will must comply with in order to be considered valid. The statute requires that the document be in writing, signed by the testator, and attested by two witnesses.  Connecticut courts have strictly followed this bright-line rule in the past; more recently, however, these same courts have utilized the curative doctrine of substantial compliance and have considered applying the harmless error rule to determine whether a will is valid. With the growth of services, such as LegalZoom, and the establishment of highly accessible legal kiosks, more and more testators are drafting wills without an attorney. 6 Given this increasing trend, mistakes are bound to happen, especially with will drafting and execution, and it is highly unlikely that each drafted document will follow the strict statutory formalities that the Wills Act proscribes. As more testators draft their own wills utilizing the easy and efficient do-it-yourself legal services, Connecticut courts (as well as other jurisdictions) should be wary of putting form over substance by strictly adhering to the aforementioned statutory formalities. Instead, reviewing courts should focus their concerns on whether the testator intended the document to act as his or her will.

July 20, 2017 in Articles, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Diminished Verbal Fluency and Hospitalizations Can Signal Cognitive Decline and Alzheimer’s Disease

Brain_slicesResearchers studying cognitive decline have identified three factors that may be pre-Alzheimer's indicators. A study conducted at the University of Wisconsin found a link between hearing loss and mild cognitive impairment, which may be an early sign of the onset of Alzheimer's disease. Over a four-year period, 9.2% of study group participants self-reported being diagnosed with hearing loss. These individuals were found to be more likely to earn lower scores on cognitive tests and were three times more likely to have mild cognitive impairment compared to their counterparts without hearing loss.

Another study at the university found a correlation between small changes in normal, everyday speech and mild cognitive impairment. Over the course of ten years, nearly a quarter of participants were identified as having mild cognitive impairment. This subset of the total population was also found to have had more significant declines in verbal fluency than others in the study. This group tended to use less complicated syntax and shorter sentences in their speech. The affected group also tended to take longer to express the same amount of content as the cognitively healthy group.

Bryan James, an epidemiologist with the Rush Alzheimer’s Disease Center at Rush University Medical Center, found that emergency and urgent hospitalizations are associated with about a 60% acceleration in cognitive decline compared to pre-hospitalization performance. James stated: “While recognizing that all medical procedures carry some degree of risk, this study implies that planned hospital encounters may not be as dangerous to the cognitive health of older persons as emergency or urgent situations.”

See Mary Hui, Hearing Loss, Diminished Verbal Fluency and Hospitalizations Can Signal Cognitive Decline and Alzheimer’s Disease, Studies Find, The Washington Post, July 17, 2017.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

July 20, 2017 in Estate Planning - Generally, Science | Permalink | Comments (0)

The 10 Most Important Years of Your Financial Life (& How to Prepare For Them)

Retirement-TimelineThe five years prior to and the five years after retirement are critical to your overall success in retirement. Large losses during these years may completely derail financial plans and require a longer stint in the workforce. There are a few steps you may take to avoid severe pitfalls that might potentially ruin retirement plans. First, figure out where you are right now. This time period represents the last opportunity to cut expenses and save where necessary. Second, visit your human resources department. Doing this can help you find out exactly what resources are available for you that may further benefit, or even accelerate, retirement goals and deadlines. Next, make a plan detailing where you plan to live, how you will spend your free time, and how much money you will need to support your lifestyle in retirement. Fourth, pay off your debts. Being debt-free in retirement makes it easier to weather bad returns or a downturn in the economy. Finally, reduce investment risk. Look at your portfolio and make sure it is diversified; retirement is usually a time for preservation of assets, not heavy growth.

See Ken Moraif, The 10 Most Important Years of Your Financial Life (& How to Prepare For Them), Kiplinger, July 2017.

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

July 20, 2017 in Estate Planning - Generally | Permalink | Comments (0)

Wednesday, July 19, 2017

Madonna Files Order to Stop Auction of Tupac Breakup Letter

Madonna1Madonna filed papers in court in an effort to prevent the auction house, Gotta Have It Collectibles, from placing a number of personal items up for sale. Madonna is alleging that a handful of items listed for auction are her personal property and were taken without authorization by her former art consultant, Darlene Lutz. Madonna claims that Lutz, "betrayed my trust in an outrageous effort to obtain my possessions without my knowledge or consent." Many of the personal items in dispute are fairly innocuous: underwear, a hairbrush, and some personal photos. A bit more controversial, and valuable, is a break-up letter written to Madonna from Tupac Shakur. Another missive included in the auction was written by Madonna and includes some disparaging comments regarding Whitney Houston and Sharon Stone. In a public statement, the auction house and Lutz characterized Madonna's claims as "a completely baseless and meritless action."

See Jon Blistein, Madonna Files Order to Stop Auction of Tupac Breakup Letter, Rolling Stone, July 19, 2017.

July 19, 2017 in Current Events, Estate Planning - Generally, Music | Permalink | Comments (0)

Dead Could Be Brought 'Back To Life' in Groundbreaking Project

Universal-Frankenstein-07-11-16Health watchdogs approved a groundbreaking trial aimed at regenerating brain tissue in individuals who have been declared clinically dead. Scientists plan to inject comatose patients with stem cells and a combination of peptides, along with implementing some nerve stimulation techniques, in order to repair brain damage. These techniques have had some past success in reviving patients from comas.

The trial participants have been certified as being brain-dead and are kept alive through life-support. The team undertaking the experiment has officially received approval for their first twenty subjects. They are currently working with the hospital to identify any potential conflicts with patients' families who may oppose the endeavor due to religious or other medical concerns. Dr. Sergei Paylian sees the possible benefits of the study: “Through our study, we will gain unique insights into the state of human brain death, which will have important connections to future therapeutic development for other severe disorders of consciousness, such as coma, and the vegetative and minimally conscious states, as well as a range of degenerative CNS conditions, including Alzheimer's and Parkinson's disease.”

See Sarah Knapton, Dead Could Be Brought 'Back To Life' in Groundbreaking Project, The Telegraph, May 3, 2016.

Special thanks to Molly Neace for bringing this article to my attention.

July 19, 2017 in Death Event Planning, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Debunking the Top 5 Retire-Myths

1024px-Ercole_de'_Roberti_-_The_Israelites_gathering_Manna_(National_Gallery _London)After three or four backbreaking decades of collecting a paycheck, supporting a family, and pinching pennies, you may be counting down the days until retirement. Though the radiant song telling a story of days free from bosses, co-workers, and deadlines warmly beckons, many retirees are finding that the promised land is not all manna and honey.

There are five common myths about retirement that catch many retirees off guard soon after their emancipation. One, every day is not a free day. Schedules quickly fill up with appointments, hobbies, and family events. Two, retirement is not always easy. Some individuals freshly sprung from the workforce find their new freedom disorienting and difficult to cope with. Three, you may not be able to retire at sixty-five. With longer life expectancies and fewer pensions, the ideal retirement age is trending upward. Four, pensions and social security may not be able to fully fund retirement goals. These benefits were designed as supplements, not your main source of retirement income. And finally, five, not everyone spends less in retirement. The common adage is that only about 75% of pre-retirement income will be needed in retirement. In a significant number of cases, retirees spent at least 95% of their pre-retirement income during their retirement.

See Ali Swofford, Debunking the Top 5 Retire-Myths, Kiplinger, May 2017.

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

July 19, 2017 in Estate Planning - Generally | Permalink | Comments (0)

Prince Estate’s $31 Million Distribution Deal Is Rescinded

PrincePrince's estate had been working with Universal Studios to cement a deal that would give Universal distribution rights to a substantial portion of the music artist's vast catalog. The deal has been turbulent at best, with Universal accusing estate representatives of fraud and misrepresentation. Thursday, Judge Kevin W. Eide issued an order approving Universal's request to rescind a finalized deal filed by Commercial Bank & Trust, the bank acting as administrator of Prince's estate. The order leaves Prince's estate absent the $31 million agreement and also burdens it with a fair degree of uncertainty. Warner Bros. disputed Universal's claims to distribution rights and argued they were entitled to those rights based on a prior contract with Prince. Due to a confidentiality clause, Universal was not aware of the conflict until the final papers had been signed. Because it remains unclear as to who really owns what rights and until when, industry lawyers believe the estate may have a difficult time finding future buyers.

See Ben Sisario, Prince Estate’s $31 Million Distribution Deal Is Rescinded, The New York Times, July 13, 2017.

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

July 19, 2017 in Current Events, Death Event Planning, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, July 18, 2017

Article on Illegitimacy: Suggestion for Reform Following Mills v. Habluetzel

Oliver-Twist-2005-1920x1080Raymond C O'Brien recently published an Article entitled, Illegitimacy: Suggestion for Reform Following Mills v. Habluetzel, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

In the recent decision of Mills v. Habluetzel, the Supreme Court implies that as technology advances and scientific tests make the determination of biological paternity more certain, the state or governmental interest in avoiding evidentiary problems of false claims, will cease to justify the use of any facile statutory denials of substantive rights claimed by illegitimates First, in the advent of scientific ability to prove the fact of paternity, unrealistic legal prerequisites or statutory limitations extinguishing the rights of illegitimates will not prevail under a constitutional analysis. Second, the use of science implies greater inquiry into all aspects of the rights of illegitimates. This paper will thus: (a) discuss the evolution of the constitutional guidelines concerning the rights of illegitimate children prior to Mills, (b) describe the Texas experience from Gomez to Mills and the recent Texas inheritance cases; and (c) determine the implications for the future of Texas law and that of other jurisdictions.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

July 18, 2017 in Articles, Estate Planning - Generally, Technology | Permalink | Comments (0)

Could a Text Become Your Will? The Plans to Revolutionise 'Outdated' Legacy System

HolographicLegal advisors to the government are proposing radical changes to inheritance laws. The Law Commission is encouraging the adoption of regulations that would allow individuals to use voicemail and text messages in lieu of traditional wills. Under current laws, which date back as far as 1839, wills must be written and signed by the testator as well as two witnesses. The commission has characterized this system as being outdated and in desperate need of modernization. Under these new proposals, judges would be able to balance the weight of digital evidence to determine if digital data offered should be allowed in court as evidence of a legally-binding representation of a decedent's last wishes.

See Olivia Rudgard, Could a Text Become Your Will? The Plans to Revolutionise 'Outdated' Legacy System, The Telegraph, July 13, 2017.

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

July 18, 2017 in Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)