Wills, Trusts & Estates Prof Blog

Protecting Estate Planning Information & Documents

The following is a description of a potentially valuable service provided by Estate++.   This description was supplied through the courtesy ofJames Bell, Vaulting Systems International.

Maintaining secure personal and financial information through natural disaster, theft -- even death and incapacity – is an on-going challenge for many individuals. If estate documents can not be found when needed then it is as if these documents never existed. But a new Internet-based system is now available to legal and financial advisors who realize the importance of planning for the next generation and securing their clients' future.

Estate++ (www.estateplusplus.com) was developed in response to the need for quick and reliable access to information for estate settlement and emergency purposes. It is a subscription service that advisors resell to their clients. Basic functionality includes a comprehensive set of data entry screens to record important information, organization of entered information into a single PDF file, a personal vault that contains important files which are uploaded and downloaded as needed, and sharing of important information with trusted parties.

Estate++ (www.estateplusplus.com) is a comprehensive, cost-effective marketing and client retention tool. By helping your clients take a proactive approach you help them to avoid the unnecessary pain and anguish that comes from not being prepared. This personal touch conveys a powerful message, effectively saying “We care about your future”. This service can also be offered to your client’s heirs, beneficiaries, family members, and friends. The referral aspect is priceless because it encompasses the entire family.

Those of you wanting to build a better practice and become client-focused should be very interested in something like this.

Using Legal Documents from Unknown Sources - Tempting But Dangerous

When preparing a legal document for a client, a family member, or a friend, it may be tempting to go online and download a form on the appropriate subject matter. One website that offers such services at no charge is docstoc.com. “Docstoc is a user generated community for sharing professional documents” which “allows users to upload their documents for all the world to share.”

   

However, choosing this route is risky and in some cases may even lead to legal malpractice. First, the drafter may have omitted or unintentionally misstated the many state-specific statutorily required provisions. Second, the document may not incorporate the most recent legislative amendments. Additionally, as with any sample forms, an attorney must ensure that the document is customized to the needs of his or her client.
   

Nonetheless, these sample documents may provide useful guidance or a "starting point" for the drafter.
   

While docstoc.com contains a fair number of wills and trusts materials, I would approach this and similar sites with extreme caution. An attorney should always independently research the applicable law and tailor the document to the client's situation.

   

Note that my comments are not meant to be a reflection on the quality of these websites from a technical perspective.  For example, the docstoc.com site appears to be extremely well-constructed and contains lots of useful and "fun" material unrelated to the practice of law.

Should Composing and Printing a Will Take Less than Five Minutes?

According to David Beckman and David Hirsch (both in the firm of Beckman & Hirsch in Burlington, Iowa), a lawyer should be able to "[c]ompose and print out a simple will" in less than five minutes.  Only in that manner may the firm score a "1" in their test of digital tasks to ascertain the efficiency of a law office.  A score of "2" is awarded if it takes five minutes to one hour to prepare the simple will and the worst score, a "3," is given if it takes more than one hour.

See David Beckman & David Hirsch, Testing Your Tech, ABA J., Oct. 2007, 58, at 59.

I seriously query whether proper deliberation of the client's intent and the myriad of contingencies that must be considered when preparing a will could adequately be addressed in five minutes or less.

Patents for Tax Planning Inventions – An Update

In Proposal to Prohibit Tax Planning Patents - S. 2369, RPPT eREPORT (2007), Rana Salti (Attorney at Law, McDermott Will & Emery LLP) "keeps us up to date on the continuing saga of the patenting of tax planning devises. On November 15, 2007, legislation was introduced in the United States Senate that would prohibit the issuance of any patents for tax planning inventions."

Technology Allows Mourners to Pay Last Respects Online

The following is from Carolyn Y. Johnson, Internet allows deceased to go beyond the end of the line, S.F. Chron., Dec. 3, 2007, at E3:

When 92-year-old Ruben Edmond died this summer, not everyone could make it to Norfolk, Va., to say goodbye to the man whose family includes five children, 28 grandchildren, 29 great-grandchildren, and five great-great grandchildren.

So while some mourners streamed into the funeral home to pay their last respects, others - from North Carolina to Hawaii - watched streaming video of the ceremony online and visited a tribute page produced by the funeral home that helped organize Edmond’s last rites. ***

[F]orward-thinking funeral homes have embraced online features.

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

Using Technology for Charitable Purposes

According to Stephanie Strom, Foundation Testing Potential of Philanthropy via Internet, NYTimes.com, Dec. 13, 2007:

The Case Foundation is embarking on an effort to test the potential of citizen-led philanthropy via the Internet.
   

Starting at 3 p.m. on Thursday, readers of Parade magazine and members of the Causes section of the Facebook Web site can enter a contest to win a total of $500,000 and $250,000, for their favorite charities, provided by Case. ***
   

The foundation has also put money into developing ThinkMTV.com, a networking site aimed at increasing youth activism. And on its own site, casefoundation.org, it offers holiday gift ideas with charitable components, as well as links to the Causes and Parade sites. ***
   

Proponents say the Internet has been useful in attracting people to sign petitions and attend rallies and demonstrations, if not in generating big donations.***

Post-Mortem Information Transmission Now Available

There are many things that people may want to be handled a certain way after their death. Deathswitch.com, offers its clients an opportunity to do so.

Here is how it works:

Deathswitch is an automated system that regularly prompts its users for a password to make sure that they are still alive. If the user fails to respond for some time, the system assumes that he or she is dead or critically disabled and e-mails pre-scripted messages to the people the user selected. Customer can select the frequency of the prompts and also the length of time after non-response triggering transmission. These time-frames can range from one day to one year.

Some of the ways in which Deathswitch can be used include:

• Sending computer passwords to co-workers and family
• Providing loved ones with bank account and other financial information
• Making known one’s final wishes
• Sharing unspeakable secrets
• Leaving love notes
• Having the last word in an argument
• Providing the loved ones with funeral instructions

Neil Hendershot also discusses this service on his blog where he ponders the ramifications of a premature discharge of an intended postmortem email message.

Improving Efficiency by Utilizing Technology in Drafting Probate Documents

In his Technology-Probate column, Prob. & Prop., Nov./Dec. 2007, Jason E. Havens explains that:

Drafting systems continue to draw substantial interest from those who have used them and those who want to enhance the drafting process. The inherent dangers of “recycling” estate planning documents and/or of using “find and replace” to update a document should motivate everyone to consider a true system for drafting these technical legal documents. This column covers some of the most popular “expert” drafting systems and updates this editor’s previous reviews of them.

Each expert drafting system provides a relatively complete system. One might offer more options that another, but all of these systems produce most “core” estate planning documents. All of them also use “templates” (reusable answer files) to address many drafting scenarios. The drafter can customize any of these systems but should use caution when doing so because of the possibility of altering the legal effect of any provision and/or the functionality of the drafting system itself. A consultant is recommended for any extensive customization project and is typically more cost-efficient than self-customization.

On-line EINs now available from IRS

Beginning Tuesday, October 9, 2007, taxpayers can apply for a federal Employer Identification Number (EIN) online and get it before disconnecting from the Internal Revenue Service website.

The IRS calls this innovation an "interview-style" application.

This new process, explained by the IRS here, supplants the former process of online completion of an IRS Form SS-4.

For more information, see Neil Hendershot, PA EE&F Law Blog, IRS "Interviews" for EINs, Oct. 8, 2007.

Digital Wills -- Good, Bad, or Ugly?

The State of Nevada, caught up in the tech boom at the end of the last century, saw the writing on the wall.  The legislators envisioned a world where an electronic will could replace, or at least be an alternative to, the traditional paper will.  Two major requirements of the electronic will were biometric authentication and software to ensure there was only one authoritative copy of the will and that any changes be readily identifiable.  Since the Nevada statute was enacted, biometric authentication systems have been developed that meet the statutory requirements.  However, the authentication software has still not been developed, with the result being that the Nevada statute, passed more than six years ago, has never been implemented and it is unlikely that it will ever be used unless the requirements are relaxed.

This statute and other matters relating to electronic wills are discussed in Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) & Claire G. Hargrove (Associate, Barton, Schneider and East, LLP, San Antonio, Texas), Digital Wills: Has the Time Come for Wills to Join the Digital Revolution?, 33 Ohio N.U.L. Rev. 865 (2007).

The question posited by this article is whether the time has come to bring wills into the digital age.  A will is often the most important document an individual ever executes.   This document is also more likely to be the subject of litigation than any other legal instrument and therefore should be prepared in such a way as to ensure that the wishes of the testator are carried out.   Because the period of time between executing a will and having it probated often spans decades, preservation of the physical representation of the testator’s dispositive desires is essential to carrying out his or her wishes.  This article traces the development of the physical manifestation of a will from the earliest times to present day and discusses whether, as we move into the electronic age, the paper will should be replaced, or at least supplemented, by a will in digital format.  A brief discussion of electronic trusts is also included.

If you would like a reprint of this article, please let me know (supplies are limited).

Intestacy and the Posthumously Conceived Heir

Joseph H. Karlin (J.D. Candidate, Temple University Law School) has recently published his Comment entitled "Daddy, Can You Spare a Dime?": Intestate Heir Rights of Posthumously Conceived Children, 79 Temp. L. Rev. 1317 (2006).

Here is an excerpt from the article's introduction:

This Comment addresses the legal issues concerning the intestate heir rights of posthumously conceived children. Part II of this Comment presents a brief overview of current law in the area of posthumous conception, including recent court decisions, model code provisions, and state intestacy statutes. Part III discusses public policy considerations involved in balancing the rights of posthumous children against other stakeholders regarding inheriting from deceased parents and receiving social security survivor's benefits. Part III also examines how the current state intestacy statutes and the Social Security Act might be interpreted by state and federal courts, and it presents a proposal for legislative action to improve certainty in this area of the law. Finally, Part IV presents a conclusion of the issues raised in this Comment.
   

This Comment proposes that U.S. legislatures and the drafters of model intestacy codes should redraft the current laws in light of the uncertainty created by the holdings of the recent state and federal cases regarding posthumous conception. More specifically, this Comment advises that all state legislatures should pass specific legislation directed at balancing the rights of posthumous children against other stakeholders. Also, this Comment recommends that the drafters of the Uniform Probate Code, Uniform Parentage Act, and Restatement (Third) of Property: Wills and Other Donative Transfers should revise the relevant sections to clarify rights of posthumous children. Finally, this Comment suggests that Congress should clarify the intent of the Social Security Act to address the posthumous conception situation.

Video Recordings of Will Execution Ceremonies Under Louisiana Law

Alison V. Nunez (J.D. 2007, Louisiana State University Law Center) has recently published her comment entitled A Testament to Inefficacy: Louisiana's New Legislation Allowing for the Admissibility of Videotape Evidence in the Probate Process, 67 La. L. Rev. 871 (2007).

Here are some excerpts from the article's introduction and conclusion:

Newly enacted Louisiana Code of Civil Procedure article 2904 provides for the admissibility at trial of a videotape of a testament's execution.  Videotape evidence may be entered in a contradictory trial to probate a testament or in an action to annul a probated testament. The videotape is to serve as proof of a number of factors associated with a will's execution.
   

This comment addresses several issues raised by the enactment of article 2904.  Specifically, it argues that article 2904 requires substantial revision before it can effectively serve the evidentiary purposes intended by the legislature. To develop this argument, Part II explains the grounds for videotape admissibility in the probate process. Part III focuses specifically on the Louisiana approach by giving an in-depth analysis of article 2904's shortcomings, providing corresponding suggestions for legislative revision, and suggesting the proper interpretation courts should give to the article. Part IV concludes by offering practical advice to practitioners who rely on the article's provisions. * * *
   

The legislators failed to debate thoroughly all possible issues when they unanimously voted to approve new Louisiana Code of Civil Procedure article 2904. The resulting article is in great need of assistance. Aside from its potential ability to aid in a court's determination of whether the testamentary execution was carried out according to proper codal requirements, the article does not add any additional support to a beneficiary's action to probate a testament or a challenger's action to annul a probated testament. As a result, Louisiana courts should not grant article 2904 undue importance. Likewise, practitioners must be wary of its potential effects. One commentator warns that the process of videotaping will “likely require longer office appointments and greater preparation [resulting in larger bills to clients] than presently needed to execute wills.”  Practitioners must also be aware of the risk that article 2904 could exacerbate malpractice actions for failure to videotape.
   

The fact remains, the vast majority of other states that have considered similar legislation did so in the late 1980s.  The only state to enact legislation was Indiana in 1988, while all other states that proposed legislation opted not to do so. Why, then, did Louisiana choose to take action in 2005, nearly twenty years later? Such action was not well considered, as evidenced by the deficiencies associated with the article; the legislature must make amends.

Decedent Got Mail

In Quick Fix: Accessing a Deceased Relative's Email, Wall St. J., June 19, 2007, at D3, Theo Francis summarizes the policies of the most popular e-mail providers:

• Google Gmail -- requires death certificate, a document giving authority such as a power of attorney, and the full header of the email.
• Microsoft's Hotmail & AOL -- will provide e-mail on CD to next of kin
• Yahoo -- requires a court order before it will release email

Accordingly, Francis recommends that, if you want survivors to access your e-mail, you should "leave passwords where they can be found--a safe deposit box, for example, or computer file encrypted with a password they'll figure out."

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for bringing this article to my attention.

Blogging as Lawyer Advertising -- An Update

Earlier on this blog, I reported on proposed rules in New York which would include blogs within the scope of lawyer advertising if the blog could be accessed from a computer in New York, even if the attorney is not practicing or domiciled in New York.

According to Stephanie Francis Ward, New York Revises Ad Rules, ABA J e-Report, Jan. 19, 2007, "[i]n the final regulations, which go into effect Feb. 1, it's made clear that such computer advertising regulations only apply to licensed New York lawyers."

One of the new requirements is "that all attorney Web sites include the term attorney advertising on home pages."

Technology Update

In Technology--Probate, Prob. & Prop., Nov./Dec. 2006, at 65, Jason E. Havens (Niceville, FL) discusses "software programs that estate planners either use in their practices now or might consider using in the future."  The types of software discussed include:

• Electronic mail
• Word processsing
• Portable document format (pdf)
• Document and knowledge management

The Virtual World May Lead to Real World Tax Liability

Internet game players may soon be faced with the prospects of tax liability for their virtual winnings.  The following except is from Daniel Terdiman, IRS taxation of online game virtual assets inevitable, CNetNews.com, Dec. 4, 2006:

If you are a hard-core player of virtual worlds like World of Warcraft, Second Life, EverQuest or There, IRS form 1099 may someday soon take on a new meaning for you.

That's because game publishers may well in the not-too-distant future have to send the forms--which individuals receive when earning nonemployee income from companies or institutions--to virtual world players engaging in transactions for valuable items like Ultima Online castles, EverQuest weapons or Second Life currency, even when those players don't convert the assets into cash.

New York Law School Prof. William LaPiana addressed the gift and estate tax issues at the State of Play/Terra Nova symposium:

LaPiana said that there is little question that the transfer of such assets could be taxable, since it is property. However, he did say that the taxes would accrue only if the total value of the estate's assets, at the time of death, exceeded the limit set by the state in which the deceased had lived. In most cases, he said, that amount is $2 million, though some states, like New York and New Jersey, have lower limits.

There are not that many instances in which someone has that level of virtual assets, although the recent reports that Second Life land mogul Anshe Chung had amassed $1 million in virtual land and other holdings certainly suggest her heirs might have some interesting inheritance tax issues if she dies.

More problematic, LaPiana said, would be laws that require estate administrators to take on responsibility for the proper transfer of assets to beneficiaries. Because most virtual assets are locked behind password-protected accounts, it would be incumbent on the administrator to try to figure out how to get access to those accounts.

"Whoever is going to run your estate...has an absolute obligation to collect all your property and make sure that it goes to the (proper) people," LaPiana said. "How do I make sure my trustee has access to this stuff after I die? These are all problems we're going to have to face."

Texas Tech Law Professor Bryan Camp then focused on income tax concerns.  Prof. Camp is in the process of writing a law review article tentative entitled The Play’s The Thing: Taxation of Multiplayer Online Role-Playing Games.  Here is an abridged version of the draft introduction of his article:

The central thesis of this article is that while player activity in online role-playing games undoubtedly produces measurable economic value to the player, game activity is neither taxable as matter of doctrine, nor should it be taxed as a matter of policy.  Instead, the article argues that a “cash out” rule for taxation of game play income is the appropriate rule, both descriptively and normatively.  Players whose added wealth consists solely in what I shall define as “units of play” should not be taxed unless and until they convert those units into cash or property that is something other than a unit of play.  Conversely, players whose in-world wealth looks less like units of play and more like a medium of exchange can and should be taxed on in-world transactions.  When play ceases, taxation begins.  * * *

[Prof. Camp's] article proceeds in three parts.  Part I describes the relevant facts of online role-playing games.  It introduces the two basic models of online gaming and describes how two types of game-related activity in each produce economic income to players.  Part II reviews the basics of taxation, and the tax rules most likely relevant to game play, notably the rules regarding what constitutes income under section 61 and the treatment of disposition of property under section 1001.  Part III then applies the tax rules to two types of game-related activity that produces economic income and suggests how and why the proper result should start as a cash-out rule and then what would cause that rule to change so that the shadow of tax will fall over in-world transactions involving only trade of virtual goods for virtual money.

Estate Planning Pro Software Version 5.0

National LawForms Incorporated has recently announced the release of 5.0 of its software entitled Estate Planning Pro.   A free demo program is also available.

Here is a description of the program:

Quickly and easily create professional customized estate planning documents for your clients! (available in all 50-states). Version 5.0 incorporates many new features, is state specific and utilizes state-of-the-art document assembly technology to provide a flexible and individually customized estate planning package for each and every client.

Years of research and development have gone into this new release and National LawForms, the company creating quality legal forms and software for the legal professional for the last thirty years is confident that this program will be an invaluable tool for your practice!

Designed to be compatible with all word processing programs and runs on computers with Microsoft Windows. Simply answer questions on screen to tailor your clients’ estate documents.

All documents were created by a group of estate planning attorneys, for attorneys. These documents may be easily customized or edited as needed.

Metadata in Estate Planning Documents and Pleadings

The ABA has recent issued Formal Opinion 06-442 entitled Review and Use of Metadata.  This opinion opens the door to lawyers to comb through electronic versions of documents to seek out potentially usefully metadata such as "the last date and time that a document was saved and by whom, data on when it was accessed, the name of the owner of the computer that created the document and the date and time it was created, and a record of any changes made to the document or comments written into it."  See Lawyers Receiving Electronic Documents are Free to Examine 'Hidden' Metadata: ABA Ethics Opinion, ABA News Release, Nov. 9, 2006.

The opinion places the burden on the sender to remove metadata or to print and then scan/fax the printout.  Here is the ABA's summary of the opinion:

The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party. A lawyer who is concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata, or who wishes to take some action to reduce or remove the potentially harmful consequences of its dissemination, may be able to limit the likelihood of its transmission by “scrubbing” metadata from documents or by sending a different version of the document without the embedded information.

Don't Talk Ill of the Dead

Many websites exist for family and friends to make comments about the recently deceased.  They range from small sites created by local funeral homes to mega-sites such as Legacy.com.

These website often hire screeners to read all of the comments to make sure no negative comments remain posted.  See Ian Urbina, In Online Mourning, Don’t Speak Ill of the Dead, NY Times, Nov. 5, 2006, from which the following excerpts are taken:

Dissing the dead, as these screeners call it, has become a costly and complicated problem for Legacy and other Web sites where people gather to mourn online. Legacy, which is now eight years old, carries a death notice or obituary for virtually all the roughly 2.4 million people who die each year, but few foresaw how nasty some of the postings to its guest books would be.

Some of the snubs are blunt. “Everyone gets their due,” a former client writes of an embezzling accountant. Or, “I sincerely hope the Lord has more mercy on him than he had on me during my years reporting to him at the Welfare Department.”

Others are subtler: “She never took the time to meet me, but I understand she was a wonderful grandmother to her other grandchildren.” * * *

Legacy is paid by more than 300 newspapers, including The New York Times, to publish their death notices and obituaries, and mourners can pay a fee to keep the guest books up longer. By attaching a publicly accessible guest book to most of the obituaries, the site has provided a new way to grieve, and in the process has all but cornered the market.

The company dedicates at least 30 percent of its budget, and 45 of its 75 employees, to catching the personal attacks and other inappropriate comments, nearly 200,000 in all, submitted each year.

Replace Your Estate Planning Lawyer for $46.93?

The Quicken WillMaker Plus 2007 computer program has recently been released and is available for a mere $46.93 at buy.com (free shipping).

The site even has a short video you may watch which explains that the software will create virtually any estate planning document you may need, accounts for state differences, and is updatable over the Internet.

Does this program live up to its claims that you can create a legally binding estate plan that is customized to your personal wishes in compliance with state law  -- all without a lawyer?   I am very skeptical!

Patent Your Favorite Tax-Saving Technique?

There is a growing trend for lawyers to patent tax-saving techniques which they have developed.

Here are some excerpts from Jeremy Kahn, Taxes: Patent that loophole, Fortune, Aug. 30, 2006:

In recent years, the Patent Office has begun granting patents to people who claim to have invented novel ways of avoiding taxes. The trend is part of a larger explosion in the number of patents granted to financial firms for so-called "business method" innovations.

So far, 48 patents for tax reduction strategies have been granted and at least another 61 applications are pending.

To tax shelter touts, the patents are a potentially deceptive new marketing tool. After all, if something is patented, it sounds as if it is government-approved. But just because something is patented doesn't mean it's legal.  * * *

Earlier this year, a Florida company called Wealth Transfer Group filed suit against John Rowe, the executive chairman of Aetna, alleging he infringed on the patent it holds for a tax savings technique involving the transfer of stock options to a certain type of trust because he used a similar technique without paying Wealth Transfer a licensing fee.

The case, which has yet to go to trial, is being closely watched by both tax and intellectual property lawyers.

Some are warning of dire consequences if the court sides with Wealth Transfer. "If you can patent an interpretation of the tax law, why not patent anyone's legal advice?" asks Carol Harrington, a lawyer with the firm McDermott Will & Emery in Chicago. "Then you could say people being prosecuted for murder can't use a certain defense without paying a licensing fee. Something is seriously wrong with that in my view."

An editorial in today's (Oct. 31, 2006) New York Times speaks out against the practice.

Suze Orman Enters Estate Planning Market

Suze Orman of CNBC fame, is hawking a kit entitled Suze Orman's Organize and Protect Financial System on one of television's shopping channels, QVC.  For a mere $58.74 (plus shipping and handling), you may purchase a kit that lights up and floats which you may use to plan your estate.  Computer software is included to prepare "over 40 forms and documents including wills, revocable trusts, advanced directives, durable power of attorney for healthcare, and financial power of attorney."  The resulting documents are claimed to be "valid in all 50 states."

Intestacy Calculators

Pennsylvania lawyer Kurt R Nilson is developing interactive programs on his website which may be used to calculate intestate distributions of property.  You may find it interesting to experiment with a calculator from your state and see whether it correctly determines the correct heirs and their shares of the estate.

Below are links to the states that Mr. Nilson already has on-line.  If you have any questions, comments, or suggestions, you may contact Mr. Nilson directly or leave a comment on his site -- he is very receptive to suggestions to improve his calculators.

	Alaska		Georgia		New York
	Arizona		Illinois		Ohio
	California		Maryland		Virginia
	Connecticut		Michigan		Washington
	Florida		New Jersey

Rachel Hirschfeld Offers Pet Trust Services

Estate planning for pet owners has been discussed several times on this blog.  I have just learned that New York attorney Rachel Hirschfeld has created a website, Pet-Trust.net, which is

dedicated to the animals we love and to their owners who want to make certain that when they can no longer take care of their loyal and loving pets, an enforceable legal plan is in place to protect and provide for their animal companions. * * *

Rachel Hirschfeld is a nationally recognized estate and trust attorney who is committed to protecting the animal companions who enrich our lives. Her mission is to educate pet owners and those who advise them as to how to protect the lives of pets when owners are no longer able to do so.

Retirement Living Television Network

There is a new network targeted at people 62 and older.  An article on SeniorLiving.com (July 2006) reports that the Retirement Living Television Network will have programs such as:
   

Amazing Seniors: A one-hour program that tells stories about ordinary individuals and the extraordinary lives they lead. Stories will focus on the creative lives that older Americans lead as artists, athletes, leaders, and more.
   

The Doctor’s Hour: A one-hour, live call-in show. The largest group of geriatric experts in the world will be available to answer questions from viewers across the country.
   

The Voice: A live-audience, interview-based show that discusses social issues important to older Americans.
   

Programs focusing on personal finance, travel, cooking, and fitness, specifically aimed at retirees, are also planned.
 

The network came on the air September 5, 2006. In a press release issued September 6, 2006 from The Erickson Tribune, the show is described as follows:
   

Retirement Living, a new cable television venture designed specifically for people 55 and older, began airing daily yesterday, September 5. You can see Retirement Living Monday thru Friday on CN8, The Comcast Network, from 12 noon to 4 p.m., EST.  CN8 is the nation's leading regional cable network serving more than 9 million Comcast Cable homes in 12 states and 20 television markets, stretching from Maine to Virginia, and Washington D.C.  You can also view programming via simultaneous Webcasts on www.CN8.tv.  You can follow the progress at www.RL.tv.
   

For more information, see Neil E. Hendershot's PA Elder, Estate & Fiduciary Law Blog.
 

Special thanks to Neil E. Hendershot of the Harrisburg, Pennsylvania law firm of Goldberg Katzman, P.C., who also authors the PA Elder, Estate & Fiduciary Law Blog, for bringing this development to my attention.

Another California Blog

Jennifer Nicole Sawday of the Long Beach, California firm of Sawday and Drake writes the California Estate Planning Practice Blog described as "A Compendium of Matters Involving Estate Planning and Probate in California."  Despite being focused on California law, many posts have broad application to both practitioners and clients.

California Blog

Larry D. Stratton of the Tarzana, California law firm of Hausman & Sosa, LLP has recently entered the blogosphere with his Planner's Thoughts blog.  His describes his blog as one in which "[a]California attorney discusses financial and estate planning issues."  Although some of his posts are directed to California law, many focus on client matters and will have broad application.

Pennsylvania Blog Started

Neil E. Hendershot of Harrisburg, Pennsylvania has just started his blog called the PA Elder, Estate & Fiduciary Law Blog.

Here is Neil's description of his blog:

A blog established by a practicing & teaching lawyer in Pennsylvania for the benefit of law students, consumers, & professionals interested in legal developments affecting Elder Law, Estate & Personal Planning, Fiduciary Administrations (by agents under POA, custodians, guardians, & trustees) or Orphans' Court litigation in this Commonwealth, with reference to trends nationally.

Watch the Videotaped Will Execution Ceremony of Mary Ellen Bendtsen

Modern video-recording technology provides an inexpensive, convenient, and reliable method of preserving evidence of the will execution ceremony and its important components.  A properly prepared videotape can be used to establish testamentary capacity, testamentary intent, compliance with will formalities, the contents of the will, lack of undue influence or fraud, and even the correct interpretation or construction of the will if the tape recorded the testator explaining the provisions.  This technique is gaining in popularity as states, either by case law or statute, begin to formulate guidelines for the use of these tapes as evidence in a will contest action.

A videotape of the will execution ceremony has many potential advantages.  It is highly accurate, unlike witnesses whose memories and impressions fade with the passage of time.  The tape improves the ability of the court or jury to evaluate the testator’s condition by preserving valuable nonverbal evidence such as demeanor, voice tone and inflection, facial expressions, and gestures. The tape may also have psychological benefits for both the testator and the survivors.  The testator may feel more confident that the intended dispositive plan will take effect and the survivors may gain solace from viewing the testator delivering a final message.

Despite the significant benefits of a will execution videotape, there are several potential problems.  In some cases, you can take steps to reduce or eliminate these problems, while in other situations the prudent decision would be to forgo taping the ceremony.  Although a situation may otherwise seem appropriate for videotaping, you may be hesitant to expose the testator to the court.  An accurate picture of the testator may lead a judge or jury to conclude that the testator was incompetent or unduly influenced.  Similarly, bias against the testator may exist because of the testator’s outward appearance; the testator’s age, sex, race, disability, or annoying habits may prejudice some individuals.  There is also a possibility that someone might alter the videotape.  The alteration could be accidental through inadvertent erasure or exposure to a strong magnetic field.  Careful storage procedures, however, greatly reduce these risks.  Intentional alteration through skillful editing and dubbing may also occur, although a videotape is more difficult to alter than a written document.

Earlier on this blog, I reported on the extended story being run by the Dallas Morning News on Mary Ellen Bendtsen.

The paper has now posted the video of Mary Ellen executing her will.  Watch it and see what you think.  The video makes for interesting viewing and discussion thereafter.  For example, did she really have capacity?  Did she sufficiently sign the will herself?  Why would the attorney allow the beneficiaries to attend the taping??  Why didn't the attorney have the will witnessed?

Note that Judge Loving refused to admit the will to probate because it was not witnessed in the presence of Mary Ellen thus sidestepping the intent and capacity issues.

To view the video, follow this link, click on "Video," and then select "The Will."

Estate Planning Software Reviewed

Jason E. Havens, a member of Havens & Miller, P.L.L.C. in Bluewater Bay, Florida, has recently published a review of three software packages in the Technology – Probate section of Prob. & Prop., July/Aug. 2006, at 58. In it, he reviews “Wealth Transfer Planning”, “Gillett Estate Management Suite”, and “Tiger Tables”.
    

Introducing the three packages, he said:
   

Wealth Transfer Planning (WTP) (www.ilsdocs.com) created by distinguished New York estate planning lawyer Jonathan G. Blattmachr more than a decade ago, now has become almost unrecognizable to users who have used the drafting system over the years.  In late 2005, WTP unveiled a sophisticated, completely revised interface built on the stable HotDocs platform. Since then, WTP has added video tutorials with substantive coverage of various drafting and planning topics, even more document options, and integration with other estate planning software programs such as Brentmark’s Estate Planning Tools. * * *
   

The Gillett Estate Management Suite (GEMS) (www.gillettpublishing.com) represents one of the only remaining suites of programs that will not only handle federal estate and gift tax returns but also handle estate inventories and fiduciary accounting. As many estate planners know, a number of these programs have been acquired by major publishing houses.  Based on most of the commentary and user feedback, however, GEMS promises to be a diamonds in the brought for those searching for a solution to prepare these returns and fiduciary accountings.  * * *
   

Tiger Tables, [www.tigertables.com], which is used by the IRS, handles most types of estate planning calculations.  In some respects, Tiger Tables is not as sophisticated as Number Cruncher or similar applications; it will not produce calculations in graphical formant for instances.  Nevertheless, for crunching numbers, Tiger Tables is a valuable took and is also very cost-effective.

MySpace from Six Feet Under

More and more people are involved with social networking on the Internet by using services such as MySpace.

But, what happens when a person with a profile on one of these services becomes metabolically challenged?

A relatively new service, MyDeathSpace, has attempted to solve this problem by creating a site for friends of deceased social networkers to post information about a person's death and to post comments about the person.

The Laptop Debate Continues

The debate over laptop usage in the classroom continues in No logoff in fight over laptops in class (June 30, 2006), by Eric Finkelstein, in the National Law Journal.

   

Professors are continuously plagued by students surfing the internet, playing games, shopping, and other non-class related activities during lectures.  Also, there are problems with students that second-year Brooklyn School of Law student Daniel Schudroff calls the "angry typist." Those are the students whose typing is both loud and fast, which is very distracting to professors and students alike.

   

Schools such as the University of Michigan Law School and the University of Virginia School of Law have used technology to prohibit internet usage when the student is in class.

   

Despite the controversy, including rumors at Harvard Law that faculty were voting this fall to ban laptops all together, some professors remain in favor of laptop usage in the classroom. See Paul Caron and Rafael Gely, Taking Back the Law School Classroom: Using Technology to Foster Active Student Learning, 54 J. Legal Educ. 311 (2004).
   

For more on this topic, see this post on Prof. Caron's blog.

The Economics of the Federal Estate Tax

This post is based on a post on the TaxProf Blog edited by Professor Paul Caron.
 

In the Tax Foundation Summer 2006 edition of Tax Watch, there is a summary of an article by Andrew Chamberlain, Gerald Prante and Patrick Fleenor, entitled Death and Taxes: The Economics of the Federal Estate Tax.
 

The executive summary of this special report is reproduced below.  The entire special report may be accessed here.

 

In April 2005, the U.S. House of Representatives voted to permanently repeal the federal estate tax (H.R. 8). Similar legislation is currently pending before the U.S. Senate (S. 420), and lawmakers are expected to finalize this legislation soon. This Special Report provides a brief history of the federal transfer tax system, and briefly examines the economics of estate taxation.
 

The federal government taxes transfers of wealth in three ways: through the estate tax, the gift tax and the generation-skipping transfer tax. Together these taxes make up the federal transfer tax system. The modern estate tax was enacted in 1916, just three years after the federal income tax. Congress supplemented it with the gift tax in 1924 and again in 1932, and in 1976 enacted a generation-skipping transfer tax to curb tax avoidance through the use of trusts. Since 1976, the three-legged framework of the modern transfer tax system has remained essentially unchanged.
 

This report examines two common arguments in favor of estate taxation. First, estate taxes are commonly assumed to be borne by wealthy taxpayers. As a result, it is argued that they are an efficient mechanism to redistribute income within society. Second, it is commonly argued that estate taxes are an important federal revenue source, which should be maintained. However, once the tax-shifting behavior of estate holders is taken into account, the economic incidence of the estate tax may be much less progressive than is commonly assumed, making it a blunt instrument for wealth redistribution. Second, the history of the federal estate tax makes clear that it has never been an important revenue source, typically accounting for 1 to 2 percent of federal collections. A growing body of economic research suggests the tax may raise zero or negative net tax revenue once widespread estate-tax avoidance is accounted for.
 

Previous Tax Foundation research has found the estate tax acts as a strong disincentive toward entrepreneurship. A 1994 study found that the estate tax’s 55 percent rate at the time had roughly the same disincentive effect as doubling an entrepreneur’s top effective marginal income tax rate. The estate tax has also been found to impose a large compliance burden on the U.S. economy. Some past economic studies have estimated the compliance costs of the federal estate tax to be roughly equal to the amount of revenue raised—nearly five times more costly per dollar of revenue than the federal income tax—making it one of the nation’s most inefficient revenue sources.

PlanYourLegacy.com

Here is some information about a new website, PlanYourLegacy.com, taken from an e-mail I received from the company and its website.