Wills, Trusts & Estates Prof Blog

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

Wednesday, September 19, 2018

Man Charged with Killing Wife at Sea Sought to Inherit her Estate, Prosecutor Says

BennettLewis Bennett, 41, was charged in February with second-degree murder on the high seas in the May 2017 disappearance of Isabella Hellmann, 41, of Delray Beach, Florida. The two were on their delayed honeymoon with plans to visit St. Maarten, Puerto Rico and Cuba.

The trial for his wife's murder has been postponed until December while prosecutors have asked a federal judge in Florida to admit conversations between Hellmann and her family, which they are believed to have discussed arguments over a potential move to Australia, financial struggles and the raising of their daughter. Prosecutors claims that the couple argued constantly, and that Bennett was greedy for her apartment and bank account, which would show a possible motive for her murder. Hellmann's body has yet to be found.

The FBI and investigators say that there is evidence that Bennett tried to intentionally sink the boat and that he made no attempts to locate his wife. Instead the FBI claim that he immediately got into a life raft with luggage, coins, and even a tea set.

See Ryan Gaydos, Man Charged with Killing Wife at Sea Sought to Inherit her Estate, Prosecutor Says, Fox News, September 17, 2018.

 

September 19, 2018 in Current Events, Estate Planning - Generally, New Cases, Travel | Permalink | Comments (0)

Tuesday, September 11, 2018

Archbishop of Canterbury May be the Next Robin Hood

RobinhoodThe Archbishop of Canterbury, Justin Welby, of the United Kingdom has co-written a report for the Institute for Public Policy Research which calls for the wealthiest of Britain's citizens to pay much more in taxes. The tax hikes would include increasing capital gains taxes, higher taxes on dividends, replacing the inheritance tax with a gift tax, and targeting multi-national corporations such as Amazon and Starbucks with a "backstop tax."

Welby appears to believe that taxing the rich will benefit the poor, in essence balancing out the wealth inequality of the nation. The Archbishop said, "For decades the UK economy has not worked as it should, with millions of people and many parts of the country receiving less than their fair share."

But the "widening gulf between rich and poor," as Welby calls it, may not be as dire as he is claiming. Inequality has actually fallen in the last 50 years, with the top tax bracket now paying 27% of all income taxes, compared to only 11% in the 1970's.

See Matt Dathan, Archbishop of Canterbury Calls for New Taxes on the Wealthiest to Help the Poorest, The Sun, September 5, 2018.

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

September 11, 2018 in Estate Planning - Generally, Travel | Permalink | Comments (0)

Friday, August 31, 2018

Fore! California Court Drives Away Claim that Trustee’s Attorney Breached Trust

GolfingChristina Cortese is the biological daughter of Francesca Naify and the stepdaughter of Robert Naify, and after the death of her mother Francesca, she inherited a "modest" amount. Under the advice of attorney Sherwood and the promise by her stepfather that she would inherit a 250-acre golf course, she terminated her mother's trust. Cortese was shocked when she was not a beneficiary of Robert Naify's estate.

She sued Sherwood in San Francisco County Superior Court, alleging breach of trust and claiming that Sherwood assisted Robert in effectuating a plan of “withholding community property from Francesca’s estate, devaluing Francesca’s estate, mismanaging her trust, and terminating it in a manner that benefited Robert.”

The appellate court looked at the factual allegations to determine whether she had alleged a conspiracy within the meaning of Civil Code section 1714.10. The court could not “conceive how Sherwood could have participated in Robert’s alleged breaches of fiduciary duty without an implied agreement to do so.” Because of the statutory requirements, she was required to seek a judge's permission to file the claim, and as she failed to do so the appellate court found her claim legally insufficient.

See Jeffrey S. Galvin, Fore! California Court Drives Away Claim that Trustee’s Attorney Breached Trust, Trust on Trial, August 27, 2018.

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

August 31, 2018 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Travel, Trusts | Permalink | Comments (0)

Tuesday, August 28, 2018

Article on The European Succession Regulation and the Arbitration of Trust Disputes

GlobeS.I. Strong recently published an Article entitled, The European Succession Regulation and the Arbitration of Trust Disputes, 103 Iowa L. Rev. 2205 (2018). Provided below is an abstract of the Article:

Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working, and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact.
One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E.U. Member States, U.S. citizens can also be affected by its provisions. This Article analyzes the interaction between the Regulation and trust arbitration, which has become increasingly popular in various U.S. and foreign jurisdictions. In so doing, the Article discusses how trust arbitration furthers the goals of the Regulation and how individual provisions in the Regulation may support or restrict the possibility of arbitration of trust-related disputes.

August 28, 2018 in Articles, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Monday, August 27, 2018

Like Prince, Aretha Franklin Died Without a Will. Why You Should Have One

IntestateThe tax and financial hassle of probate or intestacy can be huge, even for normal sized estates. When you add the extra zeros that go with a successful entertainer, the failures can seem much more agonizing. It is surprising the number of celebrities that had passed away in recent years without wills or with insufficient estate planning, including Prince, Heath Ledger, Philip Seymour Hoffman, and most recently, Aretha Franklin. Due to deficient planning, each of these sizable estates were hit with legal or financial issues that could have been easily avoided.

Franklin had been ill, so writing a will would have been logical. But also a will allows assets to become public knowledge, and many people - not just celebrities - can be uncomfortable with this prospect. For very little money you can create a revocable trust that calls for the disposition of your assets in a manner in which you choose. You still write a will, but the will just says that everything you own goes via the revocable trust, and your assets remain out of the public eye.

See Robert W. Wood, Like Prince, Aretha Franklin Died Without a Will. Why You Should Have One, Forbes, August 23, 2018.

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

August 27, 2018 in Current Events, Estate Planning - Generally, Music, Travel, Wills | Permalink | Comments (0)

Sunday, August 26, 2018

Article on Attempts to Harmonize the Inheritance Law in Europe: Past, Present, and Future

EuMariusz Zalucki recently published an Article entitled, Attempts to Harmonize the Inheritance Law in Europe: Past, Present, and Future, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Inheritance law has gained increasing importance within the European perspective. The laws that have been considered stable are now met with the requirements of modern times and are no longer sufficient. Increasing population migration and foreign property holdings as well as multinational businesses are the features of today’s modern European society. Unfortunately, in the event of death and the subsequent cross-border inheritance proceedings the situation is highly complicated due to the various applicable inheritance laws. Indeed, the individualized legal systems of each European Union Member State have different rules regarding the fundamental issues of inheritance, including intestacy, the freedom to dispose of assets in the event of death, and the protection of relatives of the deceased. The lack of uniformity—or even compatibility—is a striking practical problem. Therefore, there is a need to harmonize the rules of inheritance in the individual Member States and establishing a common European inheritance law is a tempting solution. However, this discussion has not even begun. Nevertheless, EU Regulation No. 650/2012 addresses succession, the issues of applicable law for cross-border inheritance, jurisdiction, and establishes the European Certificate of Succession, which documents inheritance rights in all EU countries and serves as a useful guidepost for harmonization. The Regulation, however, causes numerous controversies in practice. This Article aims to analyze both the framework for inheritance law and the current trends in the legislation as well as highlight some of the more significant problems caused by the Regulation. In the end, the Article demonstrates that the reality of a single, uniform inheritance law for all EU countries is still far in the future.

August 26, 2018 in Articles, Estate Planning - Generally, Intestate Succession, Travel, Wills | Permalink | Comments (0)

Tuesday, August 21, 2018

“Que Je T’Aime”: L’affaire d’heritage de Johnny Hallyday

HallydayJohnny Hallyday, nicknamed the "French Elvis," passed away in December of last year at the age of 74. In a will executed in California, the signer left all of his assets to his fourth wife Laeticia in trust, which will then pass to their two adopted - Jade and Joy - children upon her death. Here are the problems: Johnny was a French national that split his time between homes in Los Angeles and Barthélémy, a French Caribbean island. France has a law of forced heirship that may entitle Hallyday's two children from previous marriages, Laura and David Hallyday, a portion of their late father's estate. But that law hinges upon the domicile of the French national as the domiciled country's laws would dictate the disposition of the estate.

Did Hallyday become domiciled in California or even intend to become domiciled in California? For persons who have homes in more than one place, this can be a difficult question to answer as there are numerous factors that can contribute to this analysis. California also has a statute that says anyone can select any law to govern the disposition of the estate under that instrument, as long as it would not offend California public policy, not matter the estate holder's domicile.

The idea of not leaving anything to children upon one's death appears to be completely abhorrent in French culture. The tabloids have simply been in a frenzy wondering what will come of "French Elvis" and his children. This adds to the question of why the sole beneficiary of Hallyday's will, Laeticia, has not yet validated her late husband's will in California courts but has instead allowed the litigation to be held in the courts in France.

See Adam Streisand, “Que Je T’Aime”: L’affaire d’heritage de Johnny Hallyday, National Law Review, August 21, 2018.

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

August 21, 2018 in Current Events, Estate Planning - Generally, New Cases, Travel, Trusts, Wills | Permalink | Comments (0)

Wednesday, August 15, 2018

Article of Japanese Law and the Global Diffusion of Trust and Fiduciary Law

JapanMasayuki Tamaruya recently published an Article entitled, Japanese Law and the Global Diffusion of Trust and Fiduciary Law, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

This article will trace the paths of trust law diffusion, with the dual aim of identifying the role of Japanese law in shaping the global evolution of the fiduciary norm and examining the doctrinal and conceptual implication that the understanding of these historic paths can bring about. The path of trust diffusion that started from England in the seventeenth century diverged into two routes. One route went around the Cape of Good Hope toward the East, through South Africa and India. The other path went West, crossing the Atlantic and across North America. These two routes met with each other in the early twentieth century, when the Trust Act of 1922 was introduced in Japan. The westbound diffusion continued when Japan imposed its law and industry regulation in Taiwan and Korea as part of its colonial expansion. While the colonial impact diminished over time after World War II, the common self-identification as civil-law jurisdictions and the similarities in economic growth models have led to the development of parallel trust doctrines in South Korea and Taiwan. On the eastbound route, Hong Kong and Singapore have emerged as the two major commercial hubs in Asia with vibrant trust practices based on English common law. Today, these two routes converge in mainland China, where trust industries have played a vital role in the development of the Chinese market economy since Den Xiao Ping declared the opening up policy in 1979. Over a long period of time and across a number of jurisdictional borders, many factors interacted to shape the law and practice of trusts. Those factors included financial pressures, legislative imitations, academic exchange of ideas, colonial rules, commercial competitions, and shifts in national wealth and demographics. Despite some signs of the harmonization of trust law worldwide, in the increasingly competitive global economy, trust service providers and their host jurisdictions are vying with each other for comparative advantages.

August 15, 2018 in Articles, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Friday, August 10, 2018

Father Discovered he was Mourning at the Wrong Grave for his Daughter for 30 Years

GravestoneVictoria Salt died two days after she was born in July, 1988, in the United Kingdom and her father George visited her grave twice a year for 30 years. He was shocked to discover the grave that he believed was his daughter's was actually empty and the gravestone moved.

The gravestone had been moved to a public grave that contained Salt's daughter as well as the remains of 16 other people. When the gravestone was erected in the 1980s, it was apparently moved to a vacant spot but employees discovered this year it was in the wrong area and moved it back.

"I just wasn't told. I feel so let down," Salt said. "When you go to a grave, you sit and talk and say what your troubles are but the annoying thing is you're talking to a piece of ground where she isn't there."

See Kathleen Joyce, Dad Devastated to Discover he was Grieving for Daughter at the Wrong Grave for 30 Years, Fox News, August 8, 2018.

Special thanks to Jay Brinker (Cincinnati Estate Planning Attorney) for bringing this article to my attention.

 

August 10, 2018 in Current Events, Estate Planning - Generally, Travel | Permalink | Comments (1)

Sunday, August 5, 2018

Article on Taxes and Penalties on Unreported Foreign Assets: Who Foots the Bill?

BeachBrian C. Skarlatos & Michael Sardar recently published an Article entitled, Taxes and Penalties on Unreported Foreign Assets: Who Foots the Bill?, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article:

Brian and Helena are getting divorced. Brian has a successful electronics company that sells products around the world. Several years ago, a European customer owed a lot of money to Brian’s company and Brian instructed the customer to divert part of the payment to a numbered bank account in the Channel Islands controlled by Brian. The account now has a little over one million dollars. Helena has always known about the account and now she is threatening to tell the judge, or worse, call the Internal Revenue Service, unless Brian agrees to her settlement proposal.

What can Brian do? What are the tax consequences? Could there be penalties? More importantly, does Brian have criminal exposure? And who bears the cost of all the taxes and penalties associated with the unreported foreign account: is it all Brian’s burden; or is Helena jointly responsible?

Matrimonial lawyers often think of tax issues in terms of who is an “innocent spouse,” but that does not fully capture the proper analysis required when dealing with unreported foreign assets. When such assets surface in a divorce, the most important issue is whether either of the spouses “willfully” failed to report the foreign assets because “willfulness” could trigger a criminal prosecution, or huge civil penalties, either of which could wipe out the marital estate. Secondarily, there are issues relating to innocent spouse treatment under the Internal Revenue Code (I.R.C.) and separate issues relating to how a matrimonial court will allocate any tax liabilities relating to the unreported foreign account.

This article is not about how to find foreign assets. That is a question for a good forensic accountant, though it is important to understand that foreign accounts often can be traced through a careful review of bank statements and financial transactions. In addition, new laws are requiring foreign financial institutions around the world to report foreign accounts held by their U.S. customers to the Internal Revenue Service (IRS), making it easier for the IRS, creditors, and spouses to uncover such accounts.

This article is about what to do when unreported foreign assets come to light in a divorce and will help practitioners evaluate the available alternatives and associated risks and costs. Part I outlines many of the various reporting requirements for foreign assets and the related civil penalties. Part II discusses the willfulness standard and when huge penalties, or even criminal prosecution and potential imprisonment, must be considered. Part III reviews the options available to a taxpayer who has foreign assets, including the voluntary disclosure programs that can be used to minimize the civil penalties and avoid criminal prosecution. Part IV addresses strategies for dealing with taxes and penalties when unreported foreign assets surface in a divorce case. The conclusion summarizes an analytical framework for approaching issues involving unreported foreign assets.

August 5, 2018 in Articles, Estate Planning - Generally, Income Tax, Travel | Permalink | Comments (0)