Wills, Trusts & Estates Prof Blog

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

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Wednesday, February 11, 2015

ULC Acts Approved by ABA House of Delegates

ABAAt the mid-year meeting of the ABA House of Delegates held on February 9th, the House approved the three ULC acts that were before it: the Uniform Fiduciary Access to Digital Assets Act, the Uniform Recognition of Substitute Decision-Making Documents Act, and the Amendments to the Uniform Voidable Transactions Act.  All three acts were on the consent calendar of the House of Delegates.

Each of these acts were made possible by the excellent work of the drafting committee chairs—Suzanne Walsh, David English, and Ed Smith; reporters Naomi Cahn, Linda Whitton, and Ken Kettering; and to all the members of the three drafting committees, their ABA advisors, and their observers. 

Special thanks to Brittany Gaddy (Uniform Law Commission) for bringing this memorandum to my attention. 

February 11, 2015 in Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Sunday, February 8, 2015

Alabama's Crisis Over Marriage Equality

Gay marriage

While the country still awaits a decision from the United States Supreme Court as to whether gay marriage will be legal, most probate judges in Alabama are prepared to issue marriage licenses to same-sex couples beginning Monday.  However, some are planning to ignore a federal ruling that struck down the state’s ban. 

Liberty Counsel, an anti-marriage equality litigation and policy organization said, “The federal decision is not binding these magistrates. Their directive has to come from the Alabama state court.”  Several probate judges will not be issuing marriage licenses to same-sex couples next week based on their religious objections, “I do not think I am required to compromise my religious beliefs to be Probate Judge.  Alabama law does not mandate me to issue marriage licenses to anyone of any gender,” one judge said in a statement. 

The confusion over who is eligible to marry in Alabama stems from the state’s top judicial official, Chief Justice Roy Moore, who sent a memo earlier this week that instructed probate judges to continue acting in accordance with Alabama’s ban on same-sex nuptials.  Although District Judge Callie V.S. Granade struck down that ban, the 11th Circuit refused to extend the stay of her ruling. 

See Emma Margolin, Alabama Heading for ‘Constitutional Crisis’ Over Marriage Equality, MSNBC, Feb. 6, 2015. 

February 8, 2015 in Current Affairs, Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Death and Digital Data

Computer 2

A controversial new state law is making it easier for estate executors to access digital data that include email, photos, and social media posts, after the account holder dies. 

Because many Internet companies limit access to customers’ accounts, when the account holder dies, estate executors typically must obtain a court order to gain access to the account—which can be both expensive and time consuming.  Under a Delaware law passed last summer, executors can now access online accounts without a court order, unless otherwise specified by the deceased.  Similar legislation is to be considered in several other states. 

The new Delaware law gives access to those serving as agents for the deceased under a power of attorney and those serving in a fiduciary role.  This means that the law could extend beyond Delaware’s borders, making it possible for trustees to access digital data of a person’s assets that are placed in a Delaware trust.  

Delaware’s law, called the Fiduciary Access to Digital Assets and Digital Accounts Act, is designed to give legally appointed fiduciaries the same access to digital assets as they would have for more tangible assets, but not without restraints.  The law requires the fiduciary to follow the deceased or incapacitated person’s instruction for how accounts should be managed.  If there are no written instructions, the fiduciary may act how he or she sees fit. 

See Rachel Emma Silverman, When You Die, Who Can Read Your Email?, The Wall Street Journal, Feb. 1, 2015.

Special thanks to Eric G. Reis (Thompson & Knight LLP) for bringing this article to my attention.

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

February 2, 2015 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Back Yard Burials in UK, Calls for Social Reform of Funeral Costs

CemeteryThe rising cost of funerals in the UK is resulting in poor families going into debt or turning to self remedies such as burying their loved ones in their backyard, according to Labour MP Emma Lewell-Buck. Lewell-Buck introduced a bill that calls for a review of the issue of funeral poverty and would introduce a simple funeral concept into the funeral payments social fund system. The average funeral cost is currently £3,551, and a report by the Royal London insurance company revealed that one-in-five families that face the loss of a loved one are incurring debt from the funeral expenses.

See Press Association, Rising Funeral Costs 'Causing People to Bury Loved Ones in Back Garden', The Guardian, Dec. 9, 2014.

Special thanks to Lewis Saret (Law Office of Lewis J. Saret, Washington, D.C.) for bringing this article to my attention.

January 23, 2015 in Current Events, Death Event Planning, New Legislation | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

New Jersey Aid in Dying Bill

LawAs I have previously discussed, the Aid in Dying for the Terminally Ill Act is currently being considered in New Jersey. The bill was passed by the state Assembly in November, and is currently before the Senate. Last week, Dan Diaz, husband of Brittany Maynard who ended her life three months ago under Oregon's Death With Dignity Law, spoke with legislators in New Jersey to advocate passage of the Aid in Dying bill. On a radio show segment called Ask the Governor, Governor Chris Christie expressed concerns regarding the bill, but did not definitely state what action he plans to take if the bill reaches his desk.

See Michael Symons, Christie Wary of 'Aid in Dying' for Terminally Ill, Asbury Park Press, Jan. 18, 2015.

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

January 21, 2015 in Current Affairs, Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

New European Inheritance Rules


In August 2015, new inheritance rules come into force and owners of French property can benefit from them.

Many people who already own property in France, or who are thinking of buying, will be aware that French law currently governs the taxation and devolution of overseas property.  Furthermore, in France, protected heirs will have a fixed right to at least a minimum interest in an estate.  In practice, this means that the French legal system decides who receives property upon a person's death and a will is likely to be ineffective if it conflicts with forced heirship. 

Fortunately, all of this is changing in 2015.  Under this piece of legislation, EU regulation 650/2012 or Brussels IV, any British national who has property in France, or other participating EU state, can choose either the law of the country of their habitual residence or their nationality to govern the devolution of their French estate.  If no choice is made, the default position is the succession of an estate is governed by the state of the individual's habitual residence—France. 

See Emma Rawle, New European Inheritance Rules Explained, Complete France, Jan. 12, 2014.

January 12, 2015 in Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

New Probate Rule in Ontario

LawA new probate rule that came into effect with the new year on January 1, 2015, requires additional filing requirements be met by executors of estates in Ontario. The new rule requires an executor to file an Estate Information Return, which includes a list of all estate assets and a description of how valuation of the estate was conducted. The new rule applies to executors that apply for probate after the rules' effective date.

See, New Rules for Probating an Ontario Estate, Advisor.ca, Jan 9, 2015.


January 12, 2015 in Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0) | TrackBack (0)

Estate Tax Repeal Bill

Tax CutThe Death Tax Repeal Act (H.R. 173) has been filed by Texas Congressman Mac Thornberry that will repeal the Federal estate, gift, and generation-skipping taxes if passed. Thornberry described the "death tax" as "fundamentally unfair," and expressed concern for the impact of the tax on "small business owners, farmers, and ranchers," in his statements through a press release from his office released January 8, 2015. At the time of the press release there were 36 cosponsors to the bill.

See, Thornberry Introduces The Death Tax Repeal Act, Everything Lubbock, Jan. 10, 2015.

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

January 12, 2015 in Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)

Saturday, January 10, 2015

Article on Trusts and Estates

Emilee HatchEmilee K. Lawson Hatch (Associate, Bousquet Holstein PLLC) recently published an article entitled, Trusts & Estates 64 Syracuse L. Rev. 979-991 (2014).  Provided below is a portion of the article’s introduction.

On December 17, 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (“Tax Relief Act”) into law. The Tax Relief Act extended the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), with some modifications. While this legislation has far reaching consequences on various areas of law, perhaps the most considerable impact is felt within the trusts and estates community.

Unless additional legislation is passed by Congress, the Tax Relief Act will only be in effect for a short time, and the tax law in effect prior to 2001 will return on January 1, 2013. A general overview of the Tax Relief Act’s most prominent changes are summarized below.

January 10, 2015 in Articles, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 7, 2015

Death Tax May Adversely Affect Landowners


When the federal estate tax was reduced in 2010, landowners rejoiced.  Yet, as changes to estate taxes lie ahead, there has been a shift from planning for tax minimization to planning for succession.  In some states, this failure to plan for tax minimization could result in the need to cut timber or sell parts of the family land. 

In Minnesota, for example, 44 percent of forestland is privately owned.  As land values increase over time, it is easy to see how a modest amount of forestland in an estate can trigger a state estate tax.  The resulting tax may exceed the liquid assets in the estate, requiring either a sale of timber before the forest has matured, or a partial property sale.   

In the past few months, a few states have made efforts to increase the exemption and expedite the phasing out of the state death tax.  Moreover, there are federal proposals to change both the death tax rate and exemption levels.  If the federal tax credit for state death taxes return, landowners in many states will have to plan for estate taxes. 

See Tamara Cushing, State Death Tax Changes May Hurt Family Landowners, Human Events, Jan. 6, 2015. 

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

January 7, 2015 in Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0) | TrackBack (0)