Wills, Trusts & Estates Prof Blog

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

Thursday, June 30, 2016

The Florida Fiduciary Access to Digital Assets Act

Digital assetsAs the age of technology flourishes, digital media assets are becoming increasing popular. The Florida Governor signed the Florida Fiduciary Access to Digital Assets Act into law on March 10, 2016. The Act allows people to plan for the management and disposition of their digital assets, such as emails, text messages, and social media accounts, by vesting fiduciaries with the authority to access, control, or copy these assets. Additionally, the Act has rules of priority for the disclosure documents where an online tool of disclosure will trump a user’s estate planning documents. Further, a custodian must comply with a request for disclosure of the digital assets when necessary. The Act goes into effect on July 1, 2016, and will apply to all fiduciaries acting under a will, trust, or guardianship.

See Jennifer J. Wioncek & Michael D. Melrose, Florida Passes Fiduciary Access to Digital Assets Act, Wealth Management, June 27, 2016.

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

June 30, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Legislation, Trusts, Wills | Permalink | Comments (0)

Talking About Death Can Make Your Future Easier

Talking about deathNo one wants to talk about the inevitable, but talking about death before it nears could make things a lot easier on both parents and children. With the improved economy, a survey reveals that children are pushing off this uncomfortable topic and waiting till after their parent’s retire or become ill. The survey also reported little discussion about wills and estate planning with more than 27% of children being unaware that they were the executor of their parent’s estate. It is important to talk about these issues before something unforeseen happens because it can become difficult to make critical decisions in the midst of a crisis.

See Everybody Dies. It’s Time to Have the Talk, Financial Advisor, June 28, 2016.

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

June 30, 2016 in Death Event Planning, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, June 28, 2016

Article on Louisiana Succession Law

Dorothy jacksonDorothy F. Jackson recently published an Article entitled, Contemporary Issues on Louisiana Law: Successions—To Be Shared Equally or to Share and Share Alike?, S.U. L. Rev. (forthcoming Spring 2016). Provided below is an introduction to the Article:

For many years, lawyers have sought to draft last wills and testaments in an effort to comport with their clients’ wishes and to appeal to their clients’ intellectual sensibilities. Sometimes lawyers are tempted to use flowery words or phrases to impress the prospective testator, who is a lay person. A thorough reading of the Louisiana Civil Code’s provisions on legacies, joint or otherwise, should be carefully studied and understood by the attorney or notary before preparing or drafting a last will and testament. This article suggests that based upon the ambiguities that can result from the inarticulate drafting of wills, it may be necessary to amend or revise (once again) Louisiana Civil Code article 1588, which governs legacies made to more than one individual. Failure to use words that are clear and unambiguous, based upon the ordinary meaning of words, has resulted in some of the simplest drafted wills failing to comport with the client’s express intent.

Part I of this article will analyze the Lambert decision and discuss how various Louisiana courts have interpreted Lambert. Part II will discuss the Succession of Lain decision and the confusion surrounding it, its likely impact on the issue and the opportunity for future rulings (i.e. the new appeal). Finally, Part III will provide suggestions for a final resolution to the problem, one of which is to revise or amend Louisiana Civil Code article 1588 in order to avoid the confusion set forth in the Succession of Lain.

June 28, 2016 in Articles, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Inheritance Considerations for Wealthy Estates

Inheriting moneyBeing submerged in one of the greatest wealth transfers in history, can force an estate planner to not only pay attention to financial strategies for a high-income individual’s estate but also the psychological and emotional impacts of such asset transfer. Wealthy individuals normally have more challenges creating a legacy due to the amount of assets and the various vehicles they use to pass their assets to the next generation.

Consequently, clients should have a comprehensive estate plan in order to accomplish their specific goals. Further, it is essential to understand the psychological and interpersonal issues that surround large inheritances due to their risky consequences. Allowing inexperienced heirs to become wealthy upon inheritance can surmount to unforeseen problems, which should be carefully planned for. First, the client must consider the specific concerns and risks for each wealthy individual and their family members. Second, the client should take into account the various alternatives to passing a legacy, including a debt-relief gift, contributions to educational funds, and special needs trusts. These steps will help take into account the reality of the family’s situation and what options are best for passing on their estate.

See Robert G. Kuchner, When Is an Inheritance Too Big?, Private Wealth Magazine, June 27, 2016.

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

June 28, 2016 in Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Trusts, Wills | Permalink | Comments (0)

Article on the Girard Will & Two Major Supreme Court Decisions

Girard collegeSteven P. Brown recently published an Article entitled, The Girard Will and Twin Landmarks of Supreme Court History, 41 J. Sup. Ct. Hist. 7–20 (2016). Provided below is an introduction to the Article:

In June 2013, the trustees of Girard College announced drastic changes in the operations of the boarding school that had served the poor children of Philadelphia since 1848. Looming financial concerns, they said, necessitated the elimination of the school's secondary education and boarding programs. While distressing to students and their families as well as to Girard's staff, the announcement received relatively little notice outside of Pennsylvania. The school's difficulties were simply not that unique given the nationwide economic struggles wrought by the recession of 2008, and there was little else about Girard to commend itself to the national media. That, however, was not always the case.

From its controversial founding as part of a bequest from one of the richest men ever to live in America, to its mission to care for the “poor, white, male” children of Philadelphia, Girard College has been the focal point of national attention before. Much of that interest derived from state and federal litigation involving the school, including two major Supreme Court decisions dealing with questions of religion and race. Arising out of the same bequest, but separated by more than a century, these rulings link the Taney and Warren Courts as well as the antebellum and civil rights eras. They also garnered for Girard College the distinction, as the New York Times put it (and with reference to the school's Greek Revival design), as “a landmark of judicial as well as architectural history.”

June 28, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, June 27, 2016

Article on the Interface Between Marijuana and Estate Planning

Puff the magic dragonGerry W. Beyer & Brooke Dacus recently published an Article entitled, Puff, the Magic Dragon, and the Estate Planner, 3 Tex. A&M U.J. Prop. L. 1 (2016). Provided below is an abstract of the Article:

With the legalization of medical and recreational marijuana in almost half of the states, practitioners need to be aware of interface between marijuana and estate planning. This article provides a discussion of the major issues that arise. After bringing readers up-to-date with the history of legalized marijuana, the article focuses on how marijuana use may impact a user’s capacity to execute a will and other estate planning documents. The article then examines other estate planning concerns such as will and trust provisions conditioning benefits on the non-use of “illegal drugs” and the impact of marijuana use on life insurance policies. The article wraps up with a discussion of how an estate planner may deal with marijuana-based assets when planning an estate and how to value those assets after the owner has died.

June 27, 2016 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Sunday, June 26, 2016

Article on Ilott v. Mitson & the Inheritance Act of 1975

Inheritance actBrian Sloan recently published an Article entitled, The ‘Disinherited’ Daughter and the Disapproving Mother, U. Cambridge Faculty of Law Research Paper No. 24/2016 (2016). Provided below is an abstract of the Article:

This paper is a case note on Ilott v Mitson [2015] EWCA Civ 797. The judgment concerns the appropriate remedy following a successful claim by an estranged adult daughter under the Inheritance (Provision for Family and Dependants) Act 1975. The charities who were named in the mother’s will have been granted permission to appeal to the Supreme Court.

June 26, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, June 25, 2016

Common Will-Substitutes Used in England and Wales

English willsAlexandra Braun recently published an Article entitled, Will-Substitutes in England and Wales, Oxford Legal Studies Research Paper No. 39/2016 (2016). Provided below is an abstract of the Article:

Will-substitutes, that is to say mechanisms that are functionally equivalent to wills, are very common in the US, where much of the wealth is transferred on death by means other than wills, and thus outside traditional probate procedures. The purpose of this chapter is to investigate whether this is the case also in England and Wales.

This chapter explores some of the most common mechanisms used, the rationale behind their use, as well as the consequences that arise from their proliferation. In doing so, it considers will-substitutes from different perspectives, including those of creditors and family members and dependants. It argues that the current state of the law in England and Wales is unsatisfactory and that it is time for a debate involving non-probate transfers and their relationship with current succession laws.

June 25, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, June 24, 2016

Will-Substitutes for Your Estate Plan

Life-Insurance trustAlexandra Braun & Anne Roethel recently published an Article entitled, Passing Wealth on Death. Will-Substitutes in Comparative Perspective, Oxford Legal Studies Research Paper No. 38/2016 (2016). Provided below is an abstract of the Article:

Wealth can be transferred on death in a number of different ways, most commonly by will. Yet a person can also use a variety of other means to benefit someone on death. Examples include donationes mortis causa, joint tenancies, trusts, life-insurance contracts and nominations in pension and retirement plans. In the US, these modes of transfer are grouped under the category of 'will-substitutes' and are generally treated as testamentary dispositions.

Much has been written about the effect of the use of will-substitutes in the US, but little is generally known about developments in other jurisdictions. For the first time, this collection of contributions looks at will-substitutes in a comparative perspective. It examines mechanisms that pass wealth on death across a number of common law, civil law and mixed legal jurisdictions, and explores the rationale behind their use. It analyses them from different viewpoints, including those of owners of businesses, investors, as well as creditors, family members and dependants. The aims of the volume are to show the complexity and dynamics of wealth transfers on death across jurisdictions, to identify patterns between them, and to report the attitudes towards the different modes of transfer in light of their utility and potential frictions they give rise to with policies and principle underpinning current laws.

June 24, 2016 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

The Estate Plan Checklist

Estate plan checklistEstate planning is an essential part of life planning. It is important to take the right steps in your delineating your estate while you are healthy and of sound mind, so the earlier the better.

The Article details ten steps to take when kick-starting your estate plan. A couple important steps are to designate a power of attorney and health care power of attorney, so that when you are unable to make appropriate decisions, you have the help necessary. Another important step is to create a list of financial accounts and documents, keeping them in a safe place for when your family members need access to them. Additionally, as circumstances and laws change, always review your estate plan yearly.

See Natalie Campisi, Your Estate Planning Checklist: How to Create a Financially Sound Estate Plan, Go Banking Rates, June 22, 2016.

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

June 24, 2016 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)