Wills, Trusts & Estates Prof Blog

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

A Member of the Law Professor Blogs Network

Thursday, July 24, 2014

The Downside to Media Neutrality

Computer ProblemsAs I have previously discussed, the Uniform Law Commission adopted the Uniform Fiduciary Access to Digital Assets Act, which is a model code that aims to address the problem of digital assets disappearing into cyber space after the account holder dies. States will now be faced with the decision of whether to adopt the model provisions, including the idea of “media neutrality”, which allows the executor of the estate access to the digital assets.

However, for some, including those connected to high profile social media sites, this increased accessibility can be an invasion of privacy, both for the deceased account holder and third party individuals whose messages are saved to the account. Many private companies are now offering services that allow the account holder to set up what emails, pictures, and documents are to be saved or deleted after the account is deactivated or becomes inactive. If the model code is enacted in a state, then the person’s intention to make their account private after they die may be overridden and the account made public.

See Molly Roberts, A Plan to Untangle Our Digital Lives After We’re Gone, NPR, July 23, 2014.

July 24, 2014 in Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Dying Man's Will Rejected

Will On Tuesday, a Sacramento Superior Court judge refused to validate a will that a lawyer claimed to be the last wishes of a dying friend.  The will would have given all but a small portion of Joseph Herb O’Brien’s estate to a mutual friend. 

Judge Christopher Krueger said the will filed on behalf of local veterinarian Kenneth Pawlowski did not meet the standard of “clear and convincing evidence” that O’Brien was of a sound mental state when he signed his testament.  “Indeed, the evidence points to the conclusion that Mr. O’Brien was extremely weak and actually in the process of dying,” Krueger wrote.  The judge said there was significant evidence that O’Brien wanted to modify the will that he had left in a trust that provided for a stepson with drug problems.  However, the judge expressed there was a “very significant doubt on Mr. O’Brien’s capacity at the time of execution.”

Although no one exercised undue influence upon Mr. O’Brien, the proponent of the will was unable to show that the will in this case was intended by the decedent to be his will at the time he put his mark on it. 

See Andy Furillo, Sacramento Judge Rejects Dying Man’s Last-Minute Will, The Sacramento Bee, July 23, 2014.

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

July 23, 2014 in Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Double Dipping Exceptions

Retirement benefits

Many baby boomers that are expecting to retire with ample social security benefits upon retirement, may have to think again.  Unfortunately, under the Windfall Elimination Provision (WEP), individuals may not be eligible for all the Social Security benefits that are expected.

Before 1983, people working in both public and private jobs could collect a full pension when they retired, in addition to Social Security, so long as they qualified.  However, the enactment of the WEP ended this “double dipping.” 

Yet, there is a big exception.  You are excepted from the WEP under certain circumstances—one of which is that you had 30 years or more of “substantial” earnings.  When calculating this number you must take several things into account including the fact the WEP will never be more than one-half your non-Social Security pension and living adjustments.  The age at which you take the benefits also comes into play; retiring at your full retirement age, or later, will change your benefit profile. 

See Amanda Alix, Social Security Twist for Boomers with Public, Private Jobs, USA Today, July 21, 2014.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

July 23, 2014 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Hoffman Refused to Leave Money for Children

Seymour hoffman

According to court documents, Phillip Seymour Hoffman rejected his accountant’s suggestion that he set aside money for his three children because he did not want them to be “trust fund kids.”

In a Manhattan Surrogate Court, Hoffman desired that his $35 million fortune to go to his longtime partner and the children’s mother, Mimi O’Donnell.  According to the filing, Hoffman’s accountant says O’Donnell was treated “in the same manner as if she were a spouse.”  A court-appointed attorney believes the actor’s will should be approved by the court.

See Associated Press, Hoffman Didn’t Want ‘Trust Fund’ Kids, USA Today, July 21, 2014.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

July 23, 2014 in Current Affairs, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Article on the Israeli Estate Tax


Daphna Hacker (Buchman Faculty of Law, Tel Aviv University, Israel) recently published an article entitled, Intergenerational Wealth Transfer and the Need to Revive and Metamorphose the Israeli Estate Tax, Law & Ethics of Human Rights. Vol. 8 Issue 1, 59–101 (June 2014). Provided below is the article’s abstract:

This article suggests enacting an accession tax instead of the estate duty – which was repealed in Israel in 1981. This suggestion evolves from historical and normative explorations of the tension between perceptions of familial intergenerational property rights and justifications for the “death tax,” as termed by its opponents, i.e., estate and inheritance tax. First, the Article explores this tension as expressed in the history of the Israeli Estate Duty Law. This chronological survey reveals a move from the State’s taken-for-granted interest in revenue justifying the Law’s enactment in 1949; moving on to the “needy widow” and “poor orphan” in whose name the tax was attacked during the years 1959–1964, continuing to the abolition of the tax in 1981 in the name of efficiency and the right of the testator to transfer his wealth to his family, and finally cumulating with the targeting of tycoon dynasties that characterizes the recent calls for reintroducing the tax. Next, based on the rich literature on the subject, the Article maps the arguments for and against intergenerational wealth transfer taxation, placing the Israeli case in larger philosophical, political, and pragmatic contexts. Lastly, it associates the ideas of accession tax and “social inheritance” with inspirational sources for rethinking a realistic wealth transfer taxation to bridge the gap between notions of intergenerational familial rights and intergenerational social justice.

July 23, 2014 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0) | TrackBack (0)

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July 23, 2014 in About This Blog | Permalink | Comments (0) | TrackBack (0)

New QLAC Regulations May Not Mean New QLAC Availability

IRAAs I have previously discussed, new regulations were released early this month that established the requirements for longevity annuities to be classified as a qualifying longevity annuity contract (QLAC). One of the goals of the new regulations is to increase the amount of 401(k) accounts that offer longevity annuities, which provide protection for retirees from the dreaded outcome of outliving their retirement fund.  However, even with the new regulations, companies may not start offering annuities. A recent survey has shown that 81% out of the 92% of companies that do not offer annuities are unlikely to change that practice.

See Mark Miller, Why Your 401(k) Isn’t Likely to Offer a ‘Longevity Annuity’, Wealth Management, July 22, 2014.

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

July 23, 2014 in Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Long Running Breach of Trust Case Shows No Sign of Stopping

FloridaThe case is Siegel v. JP Morgan Chase Bank, and after passing the 10 year mark, it may be the longest running breach of trust suit Florida has ever seen. The case has seen multiple trials and appeals. Now, after JP Morgan Chase has emerged victorious in the latest trial in probate court, the case is headed to appellate court once again. The case involves the beneficiaries of the affluent art collector Dorothy Rautbord challenging distributions made from the trust by corporate trustee, JP Morgan Chase.

See Jeffrey Skatoff,  Breach of Trust Lawsuit in Florida Still Going Strong, Clark Skatoff, July 25, 2014.

July 23, 2014 in New Cases, Non-Probate Assets, Professional Responsibility, Trusts | Permalink | Comments (0) | TrackBack (0)

Yahoo Offering Death Event Planning and Digital Asset Management Packages in Japan

ComputerAs I have previously discussed, the issue of family members accessing online accounts after the account holder has died is an issue that private companies are beginning to address. Yahoo Japan has begun marketing a package to customers in Japan that includes burial and wake preperations as well as a service that will send a pre-recorded message to designated loved ones. The service is called “Yahoo Ending” and also allows the account holder to designate which files and pictures should be deleted and which should be released to family members upon their death.

See Anna Fifield, New ‘Yahoo Ending’ Service Lets Users in Japan Prepare for the Inevitable, The Washington Post, July 21, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

July 23, 2014 in Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0) | TrackBack (0)

Lessons Learned From James Gandolfini’s Will

James GandolfiniJames Gandolfini’s  will made headlines for the tax implications that his estate planning decisions created. The Soprano’s star left gifts to his sister and daughter totaling 80% of his estate, which was then taxed at 55% in “death taxes.” Here are six lessons learned from Gandolfini’s will:

  1. Without the public nature of probate, the media craze could not have happened.
  2. A revocable trust would have been an inexpensive way to keep the process private
  3. It is not the end of the world if Gandolfini did pay the reportedly high amount of taxes, if his estate went to who he wanted it to.
  4. There are ways to limit the tax bill, including how Gandolfini left his son $7 million through a life insurance trust.
  5. It is important to adjust provisions for the age that children will recieve inherited funds based on how responsible and mature they are over time.
  6. It is important to remember that foreign property may be subject to foreign laws, such as Gandolfini’s Italian property.

See Robert Wood, 6 Estate Planning Lessons from James Gandolfini’s Will, Forbes, July 20, 2014.

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

July 23, 2014 in Estate Planning - Generally, Estate Tax, Non-Probate Assets, Television, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)