Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Sunday, January 11, 2015

Article on Posthumously Conceived Children and Social Security Benefits

Social security 1

Catherine Kim (J.D. 2014, Loyola Law School, Los Angeles) recently published an article entitled, Posthumously Conceived Children and Their Social Security Benefits Based on State Intestacy Law: How Astrue v. Capato Changes Future Social Security Benefits As Technology Advances, 46 Loy. L.A. L. Rev. 1141-1158 (2013).  Provided below is a portion of the article’s introduction.

A widowed spouse may have a variety of reasons why she wants to conceive after her spouse’s death. A widow can turn to in vitro fertilization to make “a tribute to one’s deceased partner . . . [, to follow] religious reasons . . . [,] to know the genetic origin of one’s child . . . [, to] produce a full sibling rather than a half sibling . . . [, or] to create a grandchild.” However, a recent U.S. Supreme Court case may impact their decision to do so. Before Astrue v. Capato, courts inconsistently addressed the issue of Social Security benefits for posthumously conceived children under the United States Social Security Act (the “Act”). The Act states that families of deceased workers are entitled to Social Security benefits. Some courts ruled in favor of allowing benefits for posthumously conceived children, while others denied such benefits. In addition, the emergence and increasing use of in vitro fertilization and other assisted reproduction methods have exacerbated the problem of determining a child’s legal parentage, especially when wills omit posthumously conceived children. Courts have, at times, struggled with deciding whether these children qualified under their deceased parent’s benefits when there was no consent to or mentioning of posthumously conceived children under the decedent’s written will or addendum.

January 11, 2015 in Articles, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Technology | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Article on Federal Visions of Private Family Support

Laura RosenburyLaura Rosenbury (Washington University in Saint Louis - School of Law) recently published an article entitled, Federal Visions of Private Family Support, Vanderbilt Law Review, Vol. 67, No. 6, 2014. Provided below is the abstract from SSRN:

This Article offers a new perspective on the relationship between family and federalism by analyzing why the government — whether state or federal — recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato, upholding the Social Security Administration’s deference to states’ intestacy laws when distributing benefits to posthumously conceived children, and United States v. Windsor, in which the Court struck down a provision of the federal Defense of Marriage Act. Although each decision affirmed the states’ primary role in defining family status, developments before and after Capato and Windsor reveal that federal agencies and courts are increasingly promulgating federal definitions of family. In particular, federal courts have rejected many states’ definitions of marriage post-Windsor. This Article argues that these developments are not motivated by a rejection of federalism or the diversity and pluralism that is thought to flow therefrom. Instead, federalism remains an important value so long as it does not displace the underlying reason for legal recognition of family: the encouragement of private family support.

January 6, 2015 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Estate Planning Concerns For Singles

Single

According to the Census Bureau, almost half of Americans ages 15 and older were single in 2013.  This compares with about one-third in 1970.  As there are more singles than ever before, these individuals end up facing some unique estate planning issues. 

A common concern among singles is distributions.  When a spouse dies intestate the surviving husband or wife generally inherits most assets.  However, if you are single and die intestate, your estate could be distributed in ways you may not like.  “A lot of single people are socially involved and philanthropically active in their communities and have charitable intent, but if they don’t have an estate plan in place all their work dies with them.” 

Thus, in order to prevent your assets being distributed in ways you do not deem adequate, create a will and/or revocable living trust that states specifically how you want your assets to be dispersed after you die.  Also name an executor and/or trustee to carry out those wishes. 

Singles can also encounter problems with beneficiary designations.  If you are divorced, make sure your beneficiaries are up-to-date on IRAs, payable-on-death bank accounts, and life insurance policies.  If you fail to do so, an ex-spouse could end up with your assets. 

See Glenn Ruffenach, What Happens When Single People Die? Market Watch, Dec. 9, 2014.

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

December 10, 2014 in Estate Administration, Estate Planning - Generally, Estate Tax, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Estate of Boris Berezovsky Valued at Zero

EmptyAs I have previously discussed, attempts to settle the estate Boris Berezovsky, who at one time was the second richest man in Russia, have been entangled in complexity and confusion over finding a willing executor of his estate and whether there were even any assets left. According to probate records, Berezovsky died intestate and his UK estate was valued at nothing, though it is still unknown whether overseas trusts or other assets of value may exist.

Opinions are divided on whether Berezovsky's death was a suicide or somehow connected with his public criticism of Russian President Vladimir Putin. His family believes his death was not a suicide, but no evidence of murder was found by police, and the coroner's report includes an open verdict on cause of death.

See Stephanie Linning, Russian 'Billionaire' Boris Berezovsky Found Dead in Bath Last Year Left Nothing in His Will After Dying Penniless, Daily Mail, Nov. 22, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

November 24, 2014 in Current Affairs, Estate Administration, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

Estate Planning Without Children

Couple doing paperwork

Married couples without children who may be nearing retirement or have already reached retirement have two main tasks: One is to decide what happens to your property after you die.  The other, perhaps trickier, task is to specify who will handle your medial and financial affairs if you become incapacitated. 

Without creating a will or trust, state law will dictate who inherits your assets.  Generally, your assets will go to your spouse if you have no children, then your spouse’s relatives after he or she dies.  “This leaves the family of the first spouse to die disinherited and out of luck.  The side that inherits depends on the random order of who dies last.” 

Thus, if you do not want to risk disinheriting your relatives, or if you rather leave something to friends or charity, it is best to have a plan.  The simplest approach is for you and your spouse to execute “sweetheart” wills, leaving everything to each other and outlining who gets what after you both die.  Another approach is to transfer your assets, during life or at death, to a joint revocable living trust, which would spell out how the assets are to be distributed.  This avoids probate, which can be expensive and time consuming. 

It is also important to sign general powers-of-attorney and health-care documents empowering someone to make financial and medical decisions on your behalf if you become incapacitated.  While parents oftentimes appoint adult children, “people without children struggle to find someone they trust.” 

Spouses can appoint each other, but it is recommended to have a “Plan B,” which involves naming another, younger, person to serve simultaneously or in succession. 

See Carolyn T. Geer, Estate Planning for Childless Couples, The Wall Street Journal, Nov. 8, 2014.

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

November 21, 2014 in Estate Administration, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Surviving Spouse More Than a Living Spouse Says Wisconsin

GavelIn a recent Wisconsin case, a defendant insurance company sought to dismiss a wrongful death action brought by the children of the deceased. The children's mother and estranged wife of the decedent was found to not be able to recover due to the length of time and facts surrounding her separation from the deceased. The defendant's argued that since Wisconsin's wrongful death statute only allows for recovery by children if there is no surviving spouse, the children could not recover. The children's case was dismissed by the circuit court for Waukesha County, and the children appealed.

In Force v. American Family Mutual Insurance Company, the Supreme Court of Wisconsin held that the children could recover. The court reasoned that this result was necessary to fulfill the legislature's intended purpose for the statute. Additionally, the court found that the estranged spouse was not a "surviving spouse" for purposes of the statute as the meaning of "surviving spouse" is not simply a spouse who is living. A dissenting opinion in the case questioned how this opinion will affect future intestate succession cases.

Special thanks to Joseph J. Welcenbach (Welcenbach Law Offices, S.C.) for bringing this case to my attention.

November 17, 2014 in Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

New UK Intestacy Laws Change Treatment of Widows

LawAs I have previously discussed, new intestacy rules for intestate succession in the United Kingdom went into effect in early October. The new rules will affect many individuals since only one third of adults in the UK have a written will and one third of those are out dated or revoked, which can be caused by events such as marriage if the marriage is not expressly mentioned in the will. The rules effect estates that are valued over £250,000, which is lower than the average price of a home in the UK. The primary effect of the new rules is that they change the balance between how a spouse and children are treated in the intestacy process, with surviving spouse's now inheriting more and children less than under the previous statutory scheme.

See Adam Palin, More Rights for Widows in Intestacy Revamp, Financial Times, Sept. 26, 2014.

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

November 10, 2014 in Intestate Succession, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Article on French and U.S. Inheritance Law

Ray MadoffRay D. Madoff (Boston College Law School) recently published an article entitled, A Tale of Two Countries: Comparing the Law of Inheritance in Two Seemingly Opposite Systems, 15 Minn. J. L. Sci. & Tech. 897-947 (2014). Provided below is the abstract of the article:

Although at first glance French and U.S. inheritance laws appear to be diametrically opposed, this paper provides a deeper analysis. In doing so, it explains that nuances within both systems have made the laws more similar than they initially appear. U.S. inheritance laws, explicitly characterized by freedom of testation, include numerous substantive limits on how a testator may dispose of her property at death. Courts often use doctrines such as mental capacity, undue influence, and fraud to void wills that do not provide for the decedent’s children. Also, because over one half of all Americans die intestate, or without a will, children are provided for in this way as well. French inheritance laws, which on their face appear to require everyone to leave at least half of their property to their children, similarly allow for significant deviation from this rule. Some techniques, such as life insurance, tontines, and usufruct interests have been around for a while. Since 2006, however, the law has given French parents even greater ability to control the distribution of their estates. This paper examines French and U.S. inheritance law, with an eye towards these initial differences, and deeper similarities.

October 15, 2014 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

Global Search Revealed Long Lost Relatives of Intestate Man

DetectiveAfter John Floyd, a 75-year-old man from England who was described as a very private man, died without a will or any known family, a local law firm started a three year search for his closest relatives. After navigating the globe to find relatives in the UK, Europe, the US, and Australia, 39 relatives that Floyd had never met were located. The located beneficiaries received portions of Floyd's estate which was worth £750,000 at his death.

See Victoria Bull, Heir Hunt in Hemel! Search for Family of 'Private' Man Who Left Behind £750,000 Finds 39 Relatives, Hemel Today, Sept. 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.

October 9, 2014 in Estate Planning - Generally, Intestate Succession | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

Georgia Appeals Court Denies Legitimation Claims

GavelThe process of legitimation to have a man legally recognized as the father of a child born out of wed lock can be difficult under some state statutes, but has important implications when the man dies intestate. Yuvette Ridley found out how complicated the process can be when she faced a challenge in probate court to her being named as the administrator of her deceased boyfriend James Hawkins' estate and her son as his heir. Ridley and Hawkins had attempted to legitimate Ridley's son from a separate relationship as Hawkins' child.

In re Estate of James Andrews Hawkins, the Court of Appeals of Georgia affirmed the probate court''s ruling that Ridley's son was not the heir at law of Hawkins. The court found that Hawkins' attempt at legitimation was unsuccessful under state law because he was not under oath at the time he signed the paternity acknowledgment, and he did not sign the birth certificate even though his name was present.

See Luke Lantta, Administrative Legitimation Did Not Make Child an Heir at Law, Bryan Cave, Sept. 9, 2014.

September 23, 2014 in Estate Planning - Generally, Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)