Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Wednesday, March 4, 2015

Article on Trusting Trust

Deborah gordon

Deborah S. Gordon (Drexel University Thomas R. Kline School of Law) recently published an article entitled, Trusting Trust, Kansas Law Review, Vol. 63 (2015); Drexel University Thomas R. Kline School of Law Research Paper No. 2015-A-01.  Provided below is the abstract from SSRN:

What is a trustee and how should we understand her duties? The existing literature typically identifies the trustee in the role of agent, partner or contracting party. This Article re-envisions the trustee in the role of the legal system’s most trusted type of decision-maker: the common law judge. Rather than argue for a top-down recreation of the trustee’s role, this Article contends that valuable lessons can be learned by reconceptualizing how trustees, settlors, and beneficiaries view themselves and each other. Using traditional literature about great judging as a touchstone, the Article argues that those qualities essential to principled adjudication — including candor, competence, integrity, and impartiality — offer fresh insights for trust creation and administration and shed light on certain internal trust governance dilemmas. The Article’s normative claim is that analogizing trustees to judicial surrogates — arbiters, interpreters, problem-solvers, mediators, and communicators — will provide a way to build greater confidence in what might be called a trust community that originates with the settlor but is perpetuated by the trustee and beneficiaries as they function in the lived world.

March 4, 2015 in Articles, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Three Parent Babies Opposed by EU MEPs

LawAs I have previously discussed, in early February Britain's House of Commons voted in favor of a bill that would allow the genetic modification of babies to prevent birth defects, which would result in the children having the DNA of three individuals.  In response, 50 Members of the European Parliament (MEPs) voiced their concern over the proposed law through a letter to Prime Minister David Cameron. The letter describes the procedure as a violation of human dignity and that the "proposals violate the fundamental standards of human dignity and integrity of the person. Modification of the genome is unethical and cannot be permitted."

See Sarah Knapton, Three Parent Babies: Britain Has Breached EU Law, MEPs Warn, The Telegraph, Feb. 21, 2015.

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

March 4, 2015 in Current Affairs, Current Events, Science | Permalink | Comments (0) | TrackBack (0)

Article on Wills, Trusts, and Estates

WillJ. William Gray, Jr. and Katherine E. Ramsey recently published an article entitled, Wills, Trusts, and Estates, 49 U. Rich. L. Rev. 211. Provided below is the introduction from the article:

After an unusually busy year in 2013, Virginia's General Assembly and state courts were relatively quiet in 2014 in the area of wills, trusts, and estates. Legislation was generally limited to clarifications and technical corrections to existing law, with the most extensive bills devoted to adjusting various statutory amounts to reflect cost-of-living adjustments and consolidating the rules governing the disposition of dead bodies. Four cases dealt with questions of charitable immunity, presumption of undue influence, inheritance rights of half-blood collateral heirs, and contracts to make a will.

March 4, 2015 in Articles, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

How a 'Foundation Lite' Can Pass on Family Values

Next GenPassing on family values to the next generation is an important consideration when creating an estate plan. A donor-advised fund can be used to create a "foundation lite." With the next generation family members set as nominal board members, they learn important business skills by presenting charitable proposals to the family, and also learn how to implement family values into business decisions. 

See Kyle Brownlee, To Help Clients Teach Heirs, Try a 'Foundation Lite', Financial Planning, Feb. 26, 2015.

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

March 4, 2015 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

CLE on Planning Techniques for Large Estates

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Planning Techniques for Large Estates, on April 8 – 10, 2015 in Scottsdale, AZ and via webcast.  Here is why you should attend:

 Planning for large estates continues to be a technically demanding and dynamic area of practice. Don’t miss the best opportunity in 2015 to fine tune your knowledge and stay up-to-date! 

Attend this highly-rated course and get the latest information and planning techniques specifically for large estates. Learn, network, and strategize with your peers and a highly experienced faculty of trust and estate practitioners from across the country.

Featuring in-depth discussions of estate and gift tax issues and planning techniques, this year’s topics include:

  • business succession planning
  • charitable planning issues
  • legislative developments and outlook
  • remainder interest purchase planning techniques
  • postmortem estate planning
  • valuation issues
  • ethics and privileges
What You Will Learn

Get the tools you need to advise your clients on the latest wealth planning and tax strategies. Led by a nationally recognized faculty of trust and estate experts, this advanced course addresses the most sophisticated problems and considerations unique to planning large estates.

Whether you are a new or returning attendee, this program will keep you on the leading edge of wealth planning and estate practice. New topics this year include:

  • Business Succession Planning: Keeping It in the Family
  • Striking the Balance: Fiduciary Income, Net Investment Income, Capital Gains, and Other     Non-Transfer Tax Consequences of Transfer Tax Planning
  • Generation Skipping Transfer Tax Planning
  • Legislative, Valuation, and Other Developments 2015
  • Creative Uses of Remainder Interest Purchase Planning Techniques
  • A Potpourri of Charitable Planning Issues (and Traps) You Might Have Never Thought About Before

Discussions are based on changing fact patterns and solutions, rather than simply principles of law or statutory provisions. Each topic is explored in depth, presenting key issues, alternative approaches, and practical planning strategies.

March 4, 2015 in Conferences & CLE, Estate Planning - Generally, Estate Tax, Gift Tax | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

ME Destroys Wedding Ring

Gary's ring

When Gary McInich was watching the fireworks with his family on his boat on July 4, 2013, another boat slammed into them and Gary was thrown overboard and killed.  The driver of the other boat left the scene but turned himself in four days later.  That man goes on trial this spring. 

Gary’s widow, Linda, said the only thing she wanted of her husband’s was the wedding ring she had put on his finger.  Yet, after months of asking the Medical Examiner’s office for the ring, she was appalled when they told her it had been destroyed. 

For the past month, Linda has been trying to uncover why it was destroyed, but has gotten no answers.  “What do you do at that point? What can you do? What rights do I have? The ring’s gone.  The ring’s gone,” she said, heartbroken. 

See Lori Fullbright, State ME ‘Destroys’ Man’s Wedding Ring, Wife Wants Questions Answered, Oklahoma News 9, Feb. 25, 2015.

March 3, 2015 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

NBA's First Black Player Dies at 86

Earl Lloyd

Earl Lloyd, the first black basketball player in the NBA, died last Thursday in Tennessee at age 86. 

NBA Commissioner Adam Silver said in a statement, “The NBA family has lost one of its patriarchs.  He was known as a modest gentleman who played the game with skill, class and pride.  His legacy survives in the league he helped integrate.” 

As the only black on his team, Lloyd faced racial challenges on and off court.  He was spat on by fans, not allowed to eat in some restaurants with his team, and some hotels refused to let him stay. 

He was the Pistons’ head coach for several years, and then worked as a job placement administrator in Detroit’s city public schools.  Lloyd retired to Crossville, Tennessee with his wife, Charlita.

See Barry Stavro, Earl Lloyd Dies at 86; First Black Player in NBA, LA Times, Feb. 27, 2015.

March 3, 2015 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Tougher Rules for Retirement Brokers


President Barack Obama has thrown the weight of the White House behind his plan that would make it difficult for brokers to push higher fee mutual funds or other expensive products on people saving for retirement.  The plan to be issued by the Labor Department would require brokers to act in a customer’s best interest, a change that could limit the earnings of financial advisers in the handling of Americans’ $11 trillion of retirement savings.  Labor Secretary Tom Perez stated, “I’m confident we can actually do more to help the small and moderate savers in the context of the proposal we will be putting forth.”  He further stated, “Financial advisers absolutely deserve fair compensation.  But they shouldn’t be able to take advantage of their clients.”

Former employees of companies such as AT&T, Hewlett-Packard Co. and United Parcel Service, have complained that brokers persuaded them to roll their 401(k)s into high-cost, unsuitable IRA investments.   However, some argue that subjecting brokers to a fiduciary duty will lead to more lawsuits against the industry and add burdensome compliance requirements.  Furthermore, the added costs will likely cause brokers to drop client accounts with less than $50,000 of assets, leaving those investors to manage their own savings. 

See Dave Michaels, Obama Backs Tougher Rules for Brokers on Retirement Funds, Bloomberg Politics, Feb. 23, 2015.

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

March 3, 2015 in Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Problems With Boilerplate Advance Directives

Hospital care

An advance directive is a legally valid form that enables a person to choose the type of medical care he or she wishes to receive.  It goes into effect when that person is no longer able to speak for himself.  Nursing homes typically highlight advance directive completion rates with pride, as an attempt to show they are concerned about patients’ preferences. 

However, advance directives that come from nursing homes are cookie-cutter similar.  Almost all indicate that a patient has stated that all attempts to prolong life should be pursued and no treatment is unacceptable—regardless of prognosis.  The witnesses are typically the admissions clerk and the social worker, hardly ever the physician. 

Unfortunately, this is the reality for many individuals.  Discussing values, preferences and goals in the event of debilitation is difficult and time consuming.  Since nursing homes are paid to care for patients in perpetuity, their employees may not be the right people to oversee the completion of these ever-important forms.  It may be time to begin questioning our blind trust in patient autonomy.  This may be in fact harming, rather than helping patients nearing the end of their lives.  Thus, in order to obtain better care, and to provide it, directives need to be created, updated, accessible and incorporated into treatment.

See Jessica Nutik Zitter, When ‘Doing Everything’ Is Way Too Much, The New York Times, Feb. 7, 2015.

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

March 3, 2015 in Death Event Planning, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

CLE on Effective Use of Trust Protectors

CLEThe American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Effective Use of Trust Protectors: An Evolving Role, Tuesday March 24, 2015, 12:30 – 1:30pm, online and by phone.  Here is why you should attend:

Not all roles for trust protectors are the same.  Issues can arise that need to be clearly, directly and completely addressed when designating a trust protector to serve.

Are there drafting traps that can cause issues when using trust protectors? How can a planner deal appropriately with the question of fiduciary liability? How do state statutes affect appointments of trust protectors?

Learn the latest developments in the role and use of trust protectors in this fast-paced discussion among estate planners with decades of experience interpreting complicated trust laws.

Topics to be discussed include:

  • How state statutes affect the use of trust protectors
  • Drafting tips to outline the scope of trust protector powers and duties
  • How the use of alternate decision makers impacts the administration of trusts

March 3, 2015 in Conferences & CLE, Trusts | Permalink | Comments (0) | TrackBack (0)