Wills, Trusts & Estates Prof Blog

Religious Considerations In Estate Planning

For some people, estate planning is not only about passing their wealth to their family members but also about passing their values and religious beliefs. This could create potential problems between people within the family, especially if the members of the family have differing degrees of devotions. Thus, estate planners might want to address these issues before they become disputes. However, some estate planners have argued that an attorney might not want to make the estate planning documents so strict as to do what the attorney tried to prevent. Many provisions, such as conditional provisions that restrict marriage, could cause conflicts and legal battles between family members. Alternatively, a client might want to leave his or her money to a trust and have the trustee follow a set of stricter guidelines placed on making distributions. Unfortunately, this requires the careful selection of the trustee. 

That is why these estate planning lawyers claim that the better method of leaving a person's values behind is "to leave a spiritual legacy." This is only a suggestion as courts have frequently upheld conditional clauses that were based upon religion. Still, it is an important consideration because a conditional clause can unintentionally cause legal battles between family members. That is why some lawyers claim that the only true way to ensure that a client's potential heirs embody his or her religious and political beliefs is through education. A client might want to talk with his or her family about the faith and his or her personal set of moral values. There are many other ways a client can do this. For example, they can include letters and videotapes that outline their values. 

See Rachel Emma Silverman, Can You Make Your Heirs Honor Your Beliefs?, The Wall Street Journal, MarketWatch, Nov. 13, 2012.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

Article on Estate Planning for Baha'i Clients

Martin M. Shenkman (Attorney, New Jersey) recently published an article entitled, Estate Planning for Baha'i Clients on his website, LawEasy.com. The introduction to his article is provided below:

The Bahá’í Faith is a monotheistic religion founded during the mid-19^th century in Persia.  It has grown into a major worldwide religion with more than five million, perhaps as many as 8 million, adherents in over 230 countries. There are estimated to be approximately 150,000 Bahá’ís in the United States, and the number of adherents continues to grow both in the United States and worldwide.

While the Bahá’í Faith has its historical roots in Shi’a Islam (as Christianity has its historical roots in Judaism, and Buddhism has its historical roots in Hinduism), it is an independent faith with its own distinct history, philosophy and holy writings. To understand how estate planning and drafting of wills and other documents should be tailored to reflect the needs of a Bahá’í client, some background will prove helpful.

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

Financial Planning Based on the Bible

Ron Blue is the founding director of Kingdom Advisors in Atlanta. The financial planning firm provides Bible-based financial planning for clients. Blue believes that there are over 2,000 verses in the Bible that deal with money and we should be guided by those verses.

Blue believes that financial happiness is does not come from how much money that you have, but it lies in a client’s beliefs about money and his/her life. The Bible indicates that careful stewardship is an important part of money management, but it also seems to teach that people should be prayerful in determining how much they should give to charity instead of just automatically tithing the minimum 10%. Blue also points out that long-term planning is just a natural extension of Bible-based planning.

He understands that Christian financial planning will not be right for everyone, but for many Christians, he is able to form a great client relationship with them because of the Bible-based money management strategies. Blue intends to raise the requirements for becoming a Christian financial planner to ensure that advisers do not misuse the strategies to defraud investors.

See Veronica Dagher, Bible-Based Advising Raises Up The Kingdom, The Wall Street Journal, Feb. 28, 2012.

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

A Rhetorical Analysis of the Genre of Wills

Karen J. Sneddon (Associate Professor of Law, Walter F. George School of Law, Mercer University) recently published her article entitled, In the Name of God, Amen: Language in Last Wills and Testaments. 29 Quinnipiac L. Rev. 665-727 (2011).The introduction to the article is below:

This Article undertakes a rhetorical analysis of the genre of wills. This qualitative analysis of 168 wills is tethered in a specific geographic, legal, economic, and social context and anchored in nine discrete time periods. The wills were executed between 1821 and 2003 and recorded and probated in Bibb County, Georgia.

Based on the rhetorical analysis, this Article uncovers five characteristics of the genre of wills; characteristics that flow from the history, rituals, and customs of the drafting, interpretation, and implementation of wills. First, the wills have a lyrical title, “Last Will and Testament,” that summons religious images and beliefs. Second, the sonorous invocation of the introduction, also known as the exordium, infuses a ballad-like quality to the will. The third characteristic is the deliberate use of antiquated phrasing to accord weight to the gift, bequest, and devise of the rest, residue, and remainder of the estate. Fourth the wills bestow responsibility, both legal and moral, in the nomination of fiduciaries. And fifth, the wills close with a resonating reflective statement, also known as the testimonium.

In addition to using the rhetorical artifacts to identify the characteristics of the genre of wills, this Article contemplates the function and purpose of these characteristics. Estate planning is the confrontation of one's mortality, assessment of one's life, and contemplation of one's legacy. The will memorializes that process. In this digital age, wills seem like anachronistic documents because they continue to be actual pieces of paper requiring actual signatures. Wills are one of the oldest forms of legal documents, with one of the oldest known wills dating to the time of the Egyptian Pharaohs. Wills are also some of the most traditional forms of legal documents. Not only have wills been resistant to many suggestions of change, such as digital executions, but wills also contain apparently vestigial language that dates to the Middle Ages when unschooled draftspersons penned bequests that they worried would not be enforceable. This Article places the reviewed wills in their legal, economic, and social context to better understand the interplay among testators, draftspersons, beneficiaries, and society as a whole.

Specifically, this Article first considers the nature of language, a means of communication unique to humans that is imperfect and imprecise. Second, this Article sketches the theoretical parameters of the rhetorical analysis of genre. In so doing, the rhetorical analysis of genre is revealed to encourage understanding of the rhetorical choices made to both assess past rhetorical choices and guide future rhetorical choices. Third, to situate the wills in the appropriate social context, this Article highlights some of the development and use of wills. Upon examination of the relatively stable genre of wills, the will is revealed to be a structured, formalized document with five preserved ritual points: (1) the title, (2) the introduction, (3) the residuary clause, (4) the nomination of fiduciaries, and (5) the closing. Despite adherence to a rather rigid set of conventions, wills, at their core, are personal documents. Each will displays a sense of the individual testator that can be observed in the naming of beneficiaries important to the testator, such as family and members of a family business. The individual can also be observed in the gifts of property important to the testator, such as unharvested crops, a rocking chair, a pickle dish, or a knitted bedspread. Finally, this Article ponders how rhetorical choices for wills may change because of changing testator demographics and changing perceptions of drafting.

A rhetorical analysis of the genre of wills allows for the consideration and critique of past rhetorical choices. Moreover, it informs future rhetorical choices in a manner that facilitates the drafting of wills.

Religion and End-of-Life Decisions

Religion can play a large role in an individual’s end-of-life decisions under a living will (also known as an advanced directive or healthcare directive). Many religions emphasize the right to die with dignity, while others advocate for the preservation of human life under almost all circumstances.

Religious beliefs not only affect a person’s end-of-life decisions, but they can also affect an individual’s decision concerning life-sustaining procedures. For instance, when a pregnant woman is injured, some religions generally give preference to the mother while others treat the lives of the baby and the mother equally. Religion can also affect decisions about organ donation, disposition of remains, and the handling of the body after death.

Unless an individual signs a living will, loved ones will have to guess about his or her wishes in the event of incapacitation. Under state laws, unless a living will exists stating otherwise, a doctor can refuse to end life-support. Most large hospitals and state departments of health provide living will forms on-line, but these forms do not express any specific religious beliefs or wishes concerning end-of-life decisions or care.

For more information on how religious views affect life sustaining decisions, see Wendy S. Goffe, Should I Stay or Should I Got? What Religion Says About Pulling the Plug, Forbes, Nov. 10, 2011.

Tithing at 40-Year Low

According to a study cited by Religion News Services, tithing by parishioners of Protestant churches is the lowest it has been in four decades.

In 2009, parishioners gave their churches only 2.38 percent of their income. This is the lowest figure since 1968—the year Empty Tomb, a nonprofit research group, began reporting tithing figures.

See Tithing at 40-Year Low in Mainline Churches, Study Finds, Philanthropy Today, Oct. 14, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.

Religious Discussions in a Business Setting

Religion can be a taboo topic in business, but some financial advisors find that discussing religion is a crucial means of understanding their clients’ financial goals. Some financial advisors have clients address their spiritual beliefs in a mission statement, while others broach the topic by first discussing their own religious views.

Some financial advisors have found that even a casual conversation can lead the way to a more in-depth religious discussion. However, some situations may call for a more formal discussion of a client’s religious beliefs and personal values.

Not all advisors agree that discussing religious views should be part of business communications. If an advisor does decide to have a religious based discussion with a client, he or she may want to address the topic carefully.

See Veronica Dagher, Where Religion and Business Do Mix, The Wall Street Journal, Sep. 23, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.

Do Loved Ones Say Goodbye After Death?

Some people believe that their deceased loved ones have contacted them from beyond the grave during a paranormal event called a “crisis apparition.” A beauty shop owner in New Jersey claims she had a conversation with a customer, hours after his dead body was found. A grandson asserts that his grandfather gave him a farewell message just moments after he died from lung cancer.

Theories for these strange events range from telepathic transmissions, to a trick of the brain. Though skeptics abound, believers claim these apparitions appear as a way to give comfort to those left behind. One woman who experienced a “crisis apparition” gave the following explanation for her inexplicable experience, “these experiences have made me believe that those we love are really not that far away at all and know when we are not doing as well as we could. Just as they did in life, they offer comfort during crisis.”

See John Blake, Do Loved Ones Bid Farewell From Beyond the Grave?, CNN Living, Sep. 23, 2011.

How Do People Perceive Those in Persistent Vegetative States?

An experiment published in Cognition set out to determine how people perceive individuals who are in a persistent vegetative state. The first survey of 201 people revealed that, on average, people believe dead individuals have more mental capacities than individuals in a persistent vegetative state.

A follow-up survey found that when emphasis is made on the deceased individual’s corpse, irreligious people believe the corpse and the vegetative individual have about the same mental capacities, and religious people continue to believe the corpse has more mental capabilities than the vegetative individual.

See How Dead is Dead?, The Economist, Aug. 20, 2011.

Drafting Wills That Follow Jewish Law

When drafting a will for a client who wishes to observe the halakha, an attorney should be wary of a number of issues. Below is a list of six issues an attorney should keep in mind; however, the following list is not exclusive and does not serve as a proper substitute for consulting with a competent rabbinic authority:

1. The order of inheritance is as follows and continues for reach previous generation:
   1. Son (the oldest son receives a double Portion),
   2. Daughter,
   3. Decedent’s father,
   4. Paternal brothers,
   5. Paternal sisters,
   6. Paternal grandfather,
   7. Paternal uncles,
   8. Paternal aunts, and
   9. Paternal great-grandfather.
2. A decedent’s wife is entitled to either a pre-fixed amount as found in an antenuptial agreement or to support from the decedent’s estate until she remarries.
3. Daughters are entitled to money to pay for weddings and, if the daughter is a minor, to pay for her support.
4. Inter vivos trusts, transfers to revocable trusts, the doctrine of dina d’malchuta dina, and estate indebtedness through a promissory note all comply with halakha rules.
5. If the decedent is the wife, the husband has first order of priority in inheriting her estate.
6. Income and Gift Tax Consequences can arise if the estate plan follows an estate indebtedness method.

See K. Eli Akhavan (Attorney, Mineola, NY), Basic Principles of Estate Planning Within the Context of Jewish Law, Probate & Property 60-63 (Jul./Aug. 2011).

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.

Estate Planning and Religion

Religion can play an important role in estate planning. According to some sources, over ninety-five percent of Americans believe in some type of higher power. A list of six estate planning considerations that are influenced by an individual’s religious beliefs is below:

1. The “tone” of all an individual’s estate planning documents (i.e. funeral arrangement, distributions, medical decisions) should reflect his or her beliefs.
2. If an individual is indifferent to religious issues, specify exactly what his or her wishes are to minimize family strife later on.
3. If an individual wishes to forgo any type of religious ceremony or observance, then it is important for the individual to make a statement specifying the certain rituals to be excluded.
4. It is important to keep in mind that boilerplate distribution provisions may not allow agents and fiduciaries to disburse assets to religious education, charities, and other purposes consistent with an individual’s religious views.
5. A secular will may not reflect a particular religion’s laws of inheritance, so it is important to revise a secular to will to match the inheritance laws of an individual’s religion.
6. An individual should create a personal letter of instruction for trustees, dictating what values are essential for the upbringing of young children.

See Martin M. Shenkman, Religious Estate Planning, Wealth Strategies Journal, Mar. 17, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.

Same-Sex Marriage Legalized in New York

As I previously blogged, New York Governor, Andrew Cuomo, signed a bill legalizing same-sex marriage on Friday. The marriage bill was approved 33 to 29, and same-sex couples in New York can start legally marrying by late July (the law goes into effect in thirty days). New York joins Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, along with the District of Columbia, as the sixth state to legalize same-sex marriage. New York is now the largest state that grants legal recognition of same-sex marriages.

Though the Republican party successfully negotiated changes to the bill to protect religious institutions, New York’s Catholic bishops stated, “The passage by the Legislature of a bill to alter radically and forever humanity’s historic understanding of marriage leaves us deeply disappointed and troubled.”

All but one Democrat, Rubén Díaz Sr. of the Bronx, approved the marriage bill. Four Republicans supported the bill: Senators Stephen M. Saland of the Hudson Valley area, Roy J. McDonald of the capital region, Mark J. Grisanti of Buffalo, and James S. Alesi of East Rochester. After Cuomo signed the bill, Gristanti stated, “I apologize for those who feel offended… I cannot deny a person, a human being, a taxpayer, a worker, the people of my district and across this state, the State of New York, and those people who make this the great state that it is the same rights that I have with my wife.”

Supporters of same-sex marriage feel the passage of the bill in New York is particularly symbolic as the June 1969 riot against police in the West Village is known as the foundational moment for the gay rights movement.

Nicholas Confessore and Michael Barbaron, New York Allows Same-Sex Marriage, Becoming Largest State to Pass Law, The New York Times, Jun. 24, 2011; Michael Barbaro, Behind N.Y. Gay Marriage, an Unlikely Mix of Forces, The New York Times, Jun. 25, 2011.

Family Loses Its Inheritance to Doomsday Prophet

Elieen Hewetter’s aunt, Doris Schmitt, religiously listened to Family Radio, the radio station of doomsday prophet Harold Camping. When Schmitt passed away on May 2, 2010, her family discovered that she had left the majority of her estate, almost $300,000, to Family Radio. In 2009, alone, the station received $18 million in contributions.

Initially, Hewetter was not upset by her aunt’s decision to leave such a sizable donation to the radio station because her aunt had been such a devoted listener. It wasn’t until Hewetter began to see buses in New York City with Camping’s doomsday message plastered on the sides that she made the connection between her aunt’s beloved radio station and Camping’s doomsday prediction. Hewtter said later about this realization:

I'm looking at these brand new buses drive around with Family Radio's name on them, saying 'Doomsday is May 21', and I said, 'Oh my god, this is who my aunt gave all of her money to. I didn't know he was so crazy, and at this point I was incensed that this man was going to get everything my aunt had left.

Hewetter and her family sought the legal advice of numerous attorneys after realizing the true recipient of the majority of Schmitt’s estate, but every attorney stated that the family, sadly, had no case against Family Radio or Camping.

See Blake Ellis, I Lost My Inheritance to the Doomsday Prophet!, June 1, 2011.

Real Estate Prices in a Post-Rapture World

I recently blogged here about Harold Camping’s prediction that May 21, 2011 would be the Rapture. Though last Sunday came and went as normal, it is interesting to contemplate what the impact of the Rapture would have on real estate prices.

In a post-Rapture world, it seems more likely than not that the rental/mortgage structure would resemble the current rental/mortgage structure. However, since the population would have dropped due to people ascending to heaven (estimates for exactly how many people will ascend range from 144,000 to about fifty percent of the world’s population), real estate prices would most likely drop.

Though a post-rapture world would likely witness changes in both rural and urban real estate prices, it seems that urbanization would accelerate as those left behind would likely draw together for support. “However, even if everything else stays the same, one thing is clear: The Rapture would have an apocalyptic effect on real estate.”

Bruce Watson, What Would the Rapture Do to Real Estate Prices?, Daily Finance, May 24, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.

Hispanics Hesitant About Organ Donation

When Norma Garcia’s 13-year-old daughter, Jasmine, was declared brain dead after a car wreck, Norma decided to donate Jasmine’s heart and liver. She didn’t realize that this decision would be so controversial and that it would leave her estranged from her relatives.

Norma’s experience highlights a cultural divide that is threatening the survival of the organ transplant system. Hispanics, particularly first-and second-generation Mexican-Americans, have a lower organ donation rate than Americans as a whole while 45% of patients on the national wait-list are Hispanic. The Hispanic community claims that their religion is against organ donation and that they can’t have an open casket funeral because the body would be damaged. They worry that their loved one won’t make it to heaven because their body is incomplete.

Nuvia Enriquez, the Hispanic outreach coordinator for the Donor Network of Arizona, tries to dissolve these myths by informing Hispanics that the Catholic Church’s position on organ donation is actually very positive.  "Pope John Paul II was actually the first pope to declare donation to be an act of love, and Pope Benedict, when he was Cardinal, was a card-carrying organ donor."  

Jim Forsyth, Many Hispanics Hesitant About Organ Donation, Reuters, Mar. 28, 2011.

Overview of Shariah-Compliant Wills

Omar T. Mohammedi (Attorney at Law, New York, NY) recently published his article entitled Shariah-Compliant Wills:  An Overview, 25 Prob. & Prop. 58 (Jan./Feb. 2011).  The introduction is below:

Remembrance of death and expectation of the afterlife are cornerstones of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Shariah law is obligatory on all Muslims wishing to comply with their religious obligations. As the Muslim population continues to expand, the area of Shariah-compliant wills offers practitioners a new and interesting field to explore. Because of its complexity and its differences with the established legal theories of intestacy law in the United States, Islamic inheritance law can prove to be an engaging and important subject.

What Makes a Will Islamic?

Verses 11, 12, and 176 in the fourth book of the Quran specify how a Muslim must dispose of wealth after death:

•  
  •  
    • 1/6 to your father
    • 1/6 to your mother
    • 1/2 or 1/4 to your husband, depending upon whether you have children
    • 1/4 or 1/8 to your wife, depending upon whether you have children
    • The fractions for children vary, but boys get two shares per every one share that girls get.
    • Sunnis can give the remaining 1/3 to anyone, as long as the recipient hasn’t already received a piece of the initial 2/3.
    • Shi’ites can give the remaining 1/3 to anyone without restrictions.

In a Muslim society where Sharia law is also the civil law, no will is necessary because these inheritance laws are the default. The idea behind these pre-determined amounts is that only God can make distinctions between relatives, so it’s safer to follow these amounts.

See Julia Felsenthal, What Makes a Will Islamic?, Slate, Nov. 11, 2010.

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

Nuns Inherit Wagner Card, Sell it for $220,000

When the brother of a deceased nun died earlier this year, the School Sisters of Notre Dame inherited his Honus Wagner baseball card. The card, produced between 1909 and 1911, is the most sought-after baseball card that exists. The highest price ever paid for a baseball card was $2.8 million for a Wagner card in near-perfect condition. Only about 60 are known to exist, and this one was unknown to the sports memorabilia marketplace.

The nuns put the card up for auction to support their charitable mission. The winning bidder never paid up, so Philadelphia cardiologist Dr. Nicholas DePace stepped up and purchased the card for $220,000. The card is in poor condition, but collectors cherish any Wagner card.

DePace plans to open a nonprofit museum next year in New Jersey to showcase his collection, including this card.

See Nuns’ Wagner Card Goes to New Buyer, Associated Press, Dec. 21, 2010.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this to my attention.

Religiously Inspired Gender-Bias Disinheritance

Shelly Kreiczer-Levy (Assistant Professor of Law, Academic Center of Law & Business ) recently published her article entitled Religiously Inspired Gender-Bias Disinheritance – What’s Law Got to do With it?, 43 Creighton L. Rev. 669 (2010). The conclusion is below:

A religion that orders a certain distribution of the estate based on, among other things, a preference of male relatives poses a problem to modern legal systems. This problem combines religion and world-views, family ties, and property distribution. There are several ways to address the problem, depending upon the system's conception of inheritance. I have suggested three examples of inheritance law systems. This analysis has enabled me to discuss the values of inheritance and, in particular, the position of children.

We have seen that in certain European systems, the property becomes family property at death. Children are understood as having rightful claims to the estate. Therefore, the inheritance is at least [*692] partly out of the testator's hands. The solution in these systems is easy and clear cut. A more complex solution is the family provision model. In these systems, the law limits the testator's discretion and he is required to meet a standard of social expectations regarding the distribution of the estate. This standard incorporates the child's interests as well as the parents. In addition, it introduces the value of inheritance as reaffirming the child's position in the family. The parties' understanding of inheritance as communicating a message regarding their familial bond is based upon the relevant social and cultural conception of inheritance. That is, inheritance ties together the parties' preferences with society's perspectives.

Next, the Article moved to testamentary freedom systems and surfaced a new legal issue. It asked the reader to consider interference with the testator's will in case his will demeans his daughters. In other words, it asked us to entertain the argument that a discriminatory will should not be respected by law. I have briefly sketched this argument here and have also pointed out some difficulties with this direction.

Finally, the three systems paint a rich picture of inheritance, combining the testator, his children, and society. Family provision and forced heirship have offered a different angle to reviewing the dilemma, positioning inheritance as a strong form of connectedness. Testamentary freedom systems do not incorporate this value as part of their conception of inheritance. Yet an argument of equality is possible, provided we accept the impact disinheritance has on the child.

Since cultural views and religious convictions are protected through freedom of religion or cultural freedom, the Article does not end with bottom lines. It suggests, however, that we rethink this dilemma, and offers two potential directions: an equality based argument and an argument internal to inheritance. It thus teaches us about the values of inheritance and the possible conflicts within this complex legal arena.

Record of an Old Rabbanite Court Regarding an Inheritance Issue

Jacob Olidort (Ph.D. candidate, Princeton University) recently published his article entitled Qaraite Inheritance Law Deliberated in a Rabbanite Court (June 29, 2010). The abstract provided on SSRN is below:

The following paper examines a previously-unpublished Geniza document: a record of a Rabbanite court in Fustat (Old Cairo), Egypt, dated August 2, 1078, in which two Qaraite sisters attempt to claim the inheritance left to them by their deceased cousin. In presenting this document, the study attempts to accomplish three general aims. First, the study brings to light the original Geniza document by offering a transcription and annotated translation of its contents. Second, it attempts to place the document in its, historical, social and legal contexts. Finally, in comparing the details of the proceedings of this case with the discussions on inheritance law found in legal manuals in the Rabbanite, Qaraite and Islamic traditions, it is hoped that the study might elucidate the dynamics between the written law with its arbitration, the way in which the neighboring communities interacted, as well as how and whether their interpretation was influenced by such exchange.