Sunday, October 14, 2018
Article on Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship
Lloyd Bonfield recently published an Article entitled, Farewell Downton Abbey, Adieu Primogeniture and Entail: Britain's Brief Encounter with Forced Heirship, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
This article observes a little-noted proposal (the Landed Property of Intestates Bill) introduced into the British Parliament in 1836. It considers the debate upon it that ensued, and the accompanying pamphlet literature. The Bill proposed to alter the inheritance custom of primogeniture that directed the pattern of descent of freehold land in the absence of directions by settlement or will, and the dialogue is used as a lens to view the nexus between inheritance customs and broader political, economic and social concerns. The intensity of the dispute over primogeniture suggests that more was at stake than simply the devolution of land. The controversy in the Commons over the proposed legislation encompassed a discussion on the variety of purposes that succession law should serve. Lurking in the background in the debate over the proposed bill was a more abstract conundrum: should succession laws primarily be crafted to serve political ends, the constitution; or was it more appropriate to calibrate them to foster desirable social, economic or familial goals? In short, the debate put into sharp focus the question of what interests drive inheritance law, and how attempts can be made to modify it, if and when such concerns alter over time. The bill failed, and it would be for another century for Parliament to abolish primogeniture.
Thursday, October 11, 2018
Book on Cases and Materials on Gratuitous Transfers, Wills, Trusts, Gifts, Future Interests, and Taxation
Mark L. Asher and Grayson MP McCouch recently published a Book entitled, Cases and Materials on Gratuitous Transfers, Wills, Trusts, Gifts, Future Interests, and Taxation (West Academic Publishing, 7th ed., 2018). Provided below is a brief summary of the book.
The new edition of Gratuitous Transfers incorporates developments in the law of wills, trusts and estates since 2013, including a new principal case involving beneficiary consent to trust accounting. The text also includes references to case law and literature relating to same-sex marriage, revocation by divorce, reformation of wills, directed trusts, trust decanting, and fiduciary access to digital assets, as well as statutory references to recent amendments to the Uniform Probate Code and Uniform Trust Code. The coverage has been thoroughly updated while maintaining continuity of organization and general approach with previous editions.
October 11, 2018 in Books, Books - For Practitioners, Books - For the Classroom, Estate Administration, Estate Planning - Generally, Estate Tax, Intestate Succession, Trusts, Wills | Permalink | Comments (0)
Thursday, September 27, 2018
Tunisia’s president, Beji Caid Sebsi, has backed culturally controversial legislation that would allow Arab women to have equal inheritance rights, completely eroding Islamic law in the area. The Koran is very specific, stating that daughters are only allowed to inherit half of what their brothers receive. If the law passed it would be the first of its kind in the Arab world.
Muslim clerics decry the proposed legislation as an attack on Islam, and they are backed by the country's conservative party, Nahda. “No political party can make this gamble, particularly with elections next year.” The debate now has engulfed other Arab countries and has underlined the difficulty of upending a centuries-old status quo that shapes the contours of power and wealth across the Arab world.
But for millions of Arab women from Saudi Arabia to Morocco, there is a more modest goal: getting the limited assets to which they are currently entitled. Many women, many of them from rural areas, are denied their legal share of inherited assets, especially land. Male relatives can make it expensive and troublesome for daughters and sisters to receive any portion of their inheritances.
Inheritance laws are part of a broader web of legal and social barriers that perpetuate gender inequality in the Arab world. In many Arab countries only 1 in 4 women are employed or looking for work, and close to that number of Middle Eastern women have bank accounts.
See Heba Saleh, Arab Women Left in Inheritance Trap by Delayed Reforms, Financial Times, September 27, 2018.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Wednesday, September 26, 2018
Article on Exonerated but Still Confined: Slayer Rules Present Extra Obstacles to Criminally Exonerated Individuals
Paige Foster recently published a Comment entitled, Exonerated but Still Confined: Slayer Rules Present Extra Obstacles to Criminally Exonerated Individuals, 10 Tex. Tech Est. Plan. & Cmty. Prop. L. J. 351-374 (Summer 2018). Provided below is an abstract of the Comment:
In the early morning of June 5, 2005, Noura Jackson frantically called 911 to report that her mother, Jennifer, had been brutally murdered in her Memphis home. Four years later, a court convicted Noura of second-degree murder in connection with her mother's murder. In the interim of her mother's murder and her conviction, Noura's aunts and uncles sued her under Tennessee's "slayer statute" to prevent Noura from receiving her mother's $1.5 million estate. Noura was Jennifer's only child, and Noura's father had died years earlier, so Noura was entitled to the estate. Under Tennessee law, an interested party must show by a preponderance of the evidence that the "individual...feloniously and intentionally kill[ed] the decedent." A preponderance of the evidence standard requires the finder of fact to determine it is more likely than not that a fact is true.
Tennessee law does not require a conviction to invoke the state's slayer statute, but Noura's second-degree murder conviction helped the relatives' case because it conclusively determined that she, in fact, killed her mother.
In August of 2014, after spending nine years in prison, the Tennessee Supreme Court reversed Noura's conviction. Evidence of prosecutorial misconduct prompted a re-examination of her case, and Noura was exonerated of her mother's murder. After release from prison, Noura sued her family to recover some of the estate she lost during her murder trial. The parties settled in August 2017 for an undisclosed amount.
This comment will address the hypothetical legal consequences exonerees face after release from prison but having lost their inheritances through civil suits. Often, the exonerees must sue the same families they want to re-connect with after prison. Many state compensation statutes for exonerees contain gaps and shortcomings and vary vastly from state to state. The first section of this comment with address the goals of the Innocence Project and the relief it provides for the wrongfully convicted. This section with specifically address exonerations for murder and what generally happens to property after incarceration. Next, an analysis of slayer statutes and requisite case law will demonstrate how each state addresses people who murder for inheritance. The wording of the statutes reflect a particular policy standpoint either in favor or against forfeiture of property. Each state approaches the treatment of slayers differently, including outright forfeiture, staying the proceeding, or prohibition of forfeiture altogether. Some states provide for a constructive trust remedy rather than a slayer statute. Next, this comment will address the overlap of criminal exonerations and slayer statutes and the inevitable gaps that form when someone falls into both categories. Finally, five solutions provide alternative options for exoneree-beneficiaries.
Sunday, September 16, 2018
The 22nd anniversary of the unsolved murder of Tupac Shakur, known as 2Pac within the rap world, recently passed on September 13th. Though his life and death may be steeped in controversy and mystery respectively, his estate can seen as a study in mult-generational estate planning, litigation, and management.
Shakur died in intestate in 1996 at the young age of 25, and his entire estate was inherited by his mother, Afeni Shakur. There was even litigation in 1997 from William Garland claiming to be Tupac absent father and demanding one half of the late rapper's estate. The court found that Garland had not demonstrated a substantial relationship nor support to be treated as an heir of Shakur's. His fatherly support over the artist's life consisted of $820, a bag of peanuts, and a ticket to "Rollerball."
Afeni Shakur, however, managed her deceased son's estate admirably, growing his estate both popularly and financially. Shakur's estate released six posthumous albums — including 1996’s The Don Killuminati: The 7 Day Theory and 1998’s Greatest Hits, which are each certified 10 times platinum — a Broadway musical, several books, documentaries, clothing, and merchandise. Shakur is the first deceased performer to appear as a hologram (at Coachella in 2012). He is also the only artist to be nominated posthumously for the Grammy’s Best Solo Rap Performance award (in 2000 for Changes).
Afeni Shakur passed away in 2016 at the age of 69, but the estate had alternative fiduciaries so little is left up to chance and speculation. The words of Shakur’s homage to his mother ring true in his song dedicated to her: “Oh mama, I appreciate you. Although my shadow’s gone I will never leave you.”
See Cori A. Robinson, A Lesson in Intestacty from Tupac Shakur, Above the Law, September 11, 2018.
Special thanks to Carissa Peterson (Associate, Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.
Wednesday, September 12, 2018
People are bombarded with different avenues of technology and advancements, and with these advances come the benefit of convenience and decreased expense for undertakings that seemed out of reach for some. While it is recommended that every person over the age of 18 possess a legal and valid will, numerous people saw them as too cumbersome and expensive - or in selected cases if unnecessary as they may have limited assets to pass on to heirs. In fact, a recent survey by Caring.com found that 60% of Americans do not have a will in place.
Patrick Schmitt, co-founder and co-chief executive of FreeWill, said he set out to offer wills that were easy to create and update, and the site even allows users to leave money to charities. Their business models works in that the company receives money from the charitable institutions that pay a fee for using the FreeWill service to reach out to donors. Schmitt had worked during the Obama administration on the Democratic National Committee’s midterm fund-raising team and was frustrated in with the availability of estate planning service online.
Attorneys disagree over to what degree technology can substitute for legal counsel. Richard A. Behrendt, a trust and estates lawyer outside Milwaukee, said, “There are so many things that can be done improperly or planning opportunities that could be overlooked if you’re just sitting at your computer trying to make a one-size-fits-all will work for you.”
See Paul Sullivan, Making Wills Easier and Cheaper with Do-It-Yourself Options, New York Times, September 7, 2018.
Special thanks to Richard A. Behrendt, Esq. (Wisconsin Estate & Legacy Planning Attorney) for bringing this article to my attention.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Tuesday, September 11, 2018
If you die intestate, meaning with a valid, legal will, your assets will be transferred according to the intestacy laws of your state. Those regulations may or may not coincide with your wishes, and even if they do, it can still create a large hassle because of the potential of litigation by your loved ones.
You will must be a legally binding document, and the elements of that also depends on the laws and guidelines of your state. It is not always sufficient to print off a last will and testament template off the internet, fill in the blanks, sign, and shove into a folder somewhere. A sheet of paper (or computer document) explaining your "recommendations of handling" your financial accounts as well as your personal and real assets should never be considered as a substitute for a valid will.
Even if you have "modest" means or finances does not mean that you should entirely discount a will or an estate plan. Attorneys will be upfront about their fees and projected cost, and do not be afraid to ask.
See Michelle Singletary, What Happens if you Die Without a Will? You Might Leave a Hot Mess Behind, Washington Post, August 19, 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.
Wednesday, September 5, 2018
A new survey conducted by LifeWay Research for the Southern Baptist Foundation found more than half of Southern Baptist pastors do not have have a will or any sufficient form of estate planning, including durable power of attorney with health care directives. Pastors are well aware that they cannot take their assets when they die, and 74% surveyed believe that estate planning should be considered a part of a person's complete financial stewardship, but yet many still put off these important conversations and documents.
Scott McConnell, director of LifeWay Research, said the survey reveals a lack of awareness about estate planning and accompanying laws which may contribute to pastors not having a plan in place. 48% of pastors agree with a statement that if someone dies without a will, their family decides what is done with the assets of the deceased while 33% disagree and 19% "don't know." In truth, the court will decide what will happen to not only assets but also minor children (if both parents are deceased) if there is no will or estate plan in place.
"Your will is your opportunity to articulate your wishes, your values and your legacy," said Warren Peek, president of the Southern Baptist Foundation.
See Leigh Ann Bowick, Young or Old, Many Pastors Lack a Will, Survey Finds, Baptist Press, August 31, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Wednesday, August 29, 2018
The National Business Institute is holding a conference entitled, How to Handle the Probate Process, on Thursday, September 13, 2018, at the Holiday Inn Express Charleston-Civic Center in Charleston, West Virginia. Provided below is a description of the event:
A Comprehensive Guide to Probate
Are you confident you can handle a probate case when it lands on your desk? Are you familiar with the proper procedures to use along with the applicable laws? This insightful course will give you detailed, step-by-step information to proficiently navigate through the process - register today!
- Walk through the initial steps of opening a probate case with tips from seasoned practitioners.
- Learn how to implement a complete estate timetable in order to know what needs to be done - and when.
- Effectively guide the executor and the administrator through their various duties in the probate process.
- Avoid problems arising from creditors' claims and insolvency with our powerful strategies.
- Discover the secrets to confidently handling a spouse's elective share.
- Review ways to effectively handle disagreements between beneficiaries and adhere to the guidelines of precedence in case of intestacy.
- Follow thorough closing procedures so accounting is complete before distribution takes place.
Who Should Attend
This basic level seminar will provide those who have limited probate experience with tips on successfully handling a probate case. This comprehensive seminar will benefit:
- Accountants and CPAs
- Financial Planners and Wealth Managers
- Tax Professionals
- Trust Officers
- Opening the Estate in Probate Court - Initiating the Process
- The Personal Representative's Responsibilities
- Inventory: Collecting, Maintaining and Managing Assets
- Handling Debts and Expenses in Probate
- Ethical Issues in Probate
- The Spouse's Elective Share and Probate Estate
- The Laws of Intestacy and How They May Apply
- Closing and Distributing the Probate Estate
Continuing Education Credit
Continuing Legal Education – CLE: 8.00 *
Financial Planners – Financial Planners: 8.00
International Association for Continuing Education Training – IACET: 0.70
National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 8.00 ** denotes specialty credits
Sunday, August 26, 2018
Mariusz Zalucki recently published an Article entitled, Attempts to Harmonize the Inheritance Law in Europe: Past, Present, and Future, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
Inheritance law has gained increasing importance within the European perspective. The laws that have been considered stable are now met with the requirements of modern times and are no longer sufficient. Increasing population migration and foreign property holdings as well as multinational businesses are the features of today’s modern European society. Unfortunately, in the event of death and the subsequent cross-border inheritance proceedings the situation is highly complicated due to the various applicable inheritance laws. Indeed, the individualized legal systems of each European Union Member State have different rules regarding the fundamental issues of inheritance, including intestacy, the freedom to dispose of assets in the event of death, and the protection of relatives of the deceased. The lack of uniformity—or even compatibility—is a striking practical problem. Therefore, there is a need to harmonize the rules of inheritance in the individual Member States and establishing a common European inheritance law is a tempting solution. However, this discussion has not even begun. Nevertheless, EU Regulation No. 650/2012 addresses succession, the issues of applicable law for cross-border inheritance, jurisdiction, and establishes the European Certificate of Succession, which documents inheritance rights in all EU countries and serves as a useful guidepost for harmonization. The Regulation, however, causes numerous controversies in practice. This Article aims to analyze both the framework for inheritance law and the current trends in the legislation as well as highlight some of the more significant problems caused by the Regulation. In the end, the Article demonstrates that the reality of a single, uniform inheritance law for all EU countries is still far in the future.