Wills, Trusts & Estates Prof Blog

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

Wednesday, June 21, 2017

Article on Recent Texas Cases Impacting the Wills, Probate, and Trust Practice

Intestate-Succession-212x300Gerry W. Beyer recently published an Article entitled, Recent Texas Cases Impacting the Wills, Probate, and Trust Practice, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This article discusses recent judicial developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

June 21, 2017 in Articles, Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Malpractice, Trusts, Wills | Permalink | Comments (0)

Article on Testation and the Mind

Young-frankensteinAdam J. Hirsch recently published an Article entitled, Testation and the Mind, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This Article explores the panoply of state-of-mind rules in inheritance law. In areas of law concerned with wrongdoing, consideration of mental states achieves specific deterrence and moral justice. By comparison, in the inheritance realm, I argue that consideration of mental states can serve to economize on decision costs. The Article looks at state-of-mind rules through this prism and also analyzes the public policy of these rules from the perspective of modern research into psychology. Finally, the Article examines state-of-mind rules comparatively, identifying inconsistencies between them that require justification. The Article closes by observing potential expansions of the model and applications in other areas of law.

June 21, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, June 20, 2017

Article on The Strange Case of Dr. Jekyll's Will: A Tale of Testamentary Capacity

Dr-Jekyll-y-Mr-HydeStephen R. Alton recently published an Article entitled, The Strange Case of Dr. Jekyll's Will: A Tale of Testamentary Capacity, Wills, Trusts, & Estate Law eJournal (2016). Provided below is an abstract of the Article:

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs — the last will of Dr. Jekyll. It is this will that so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that Utterson is impelled to seek the truth behind his friend’s relationship to Hyde. At the end of Utterson’s search, the solicitor learns about Jekyll’s dangerous scientific experiment, which leads to the respected doctor’s moral downfall and his physical death.

This article is presented as an imagined dialogue between the article’s author and Jekyll’s lawyer, Utterson, about the issues surrounding Jekyll’s mental capacity to make the will that left the doctor’s estate to Hyde. Jekyll’s will is an excellent case study for the application of various legal rules and doctrines regarding a testator’s mental capacity to make a valid will. These rules include those relating to the general soundness of the testator’s state of mind, the issues of undue influence and duress, and the doctrine of insane delusion. Stevenson’s novella is a wonderful vehicle for examining important legal problems that remain as relevant in America today as they were in England during Queen Victoria’s reign.

June 20, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, June 16, 2017

Wills and Inheritance: 10 Cross-Border Tips

BorderThere was once a time when a Central London practice would rarely encounter clients with cross-border concerns. Even then, these issues usually only dealt with a vacation home in Spain or France. Now, it is difficult to find clients that do not have some legal matter that is void of an international dimension. And, despite this growing trend, inheritance taxes and succession law has not kept pace with the growth in cross-border connectivity. In order to mitigate some complexities associated with succession involving international concerns, there are a few simple steps to take. These steps may range from keeping international links up-to-date, distinguishing between assets types, and appointing trusted persons to be executors.

See Kingsley Napley, Wills and Inheritance: 10 Cross-Border Tips, Lexology, June 14, 2017.

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

June 16, 2017 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Article on Everybody Dies. Or, A Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented

AccessVictoria J. Haneman recently published an Article entitled, Everybody Dies. Or, A Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

The access to justice problem has been the cause célèbre of the social justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. The stark reality is that while sixty-one million people are potentially eligible to receive legal aid, most will find themselves unassisted when need arises. Sadly, however, the access to justice problem in this country reaches beyond the poorest and most disadvantaged. Working-class and middle-income individuals are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. This forces a significant portion of the population to either ignore legal issues or take resolve matters on their own. Those who need representation to avoid the foreclosure of their homes or the loss of parental rights will need to navigate a complicated system on their own.

There is consensus that the need for affordable legal services far outstrips access to affordable legal services, and the rising number of self-represented individuals burdens the system. The greatest impact is arguably felt in the probate, family and housing court systems. There is not, however, consensus as concerns the best way in which to meaningfully address the issue. Dissonance also exists as as to the best ways in which to meaningfully offer assistance and allocate limited resources to the underrepresented and unrepresented.

While access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. It is a system designed to accommodate the represented. To this end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to imminently fall into the pit. In the context of estate planning, this Article will frame the discussion within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios.

June 16, 2017 in Articles, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, June 14, 2017

IRS Ruling Helps Surviving Spouses Who Face Estate Tax Trap

SuitcaseThe Internal Revenue Service has issued another round of relief for executors who mistakenly forget or fail to file an estate tax return that elects portability. One of the major misconceptions with the portability of the estate tax exemption for surviving spouses is the method of acquisition. Many executors believe the exemption is automatic, while the reality is that it must be requested and the IRS notified of the decedent’s death. As an example of applicability, say Harry dies with $5 million in his estate which he leaves to his spouse, Wanda. Wanda has $5 million in her own assets. At her death, Wanda dies with $10 million in assets and owes an estate tax. An executor may now use the updated procedures to elect portability and avoid estate taxes. He may also make a claim for a refund of estate taxes if the statute for filing the refund is open. The IRS has made a few exceptions and allowances in the past to aid executors who have missed the filing deadline to request portability. As it stands now, the deadline is set at a hard two years after death.

See Ashlea Ebeling, IRS Ruling Helps Surviving Spouses Who Face Estate Tax Trap, Forbes, June 12, 2017.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) & Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 14, 2017 in Current Events, Estate Planning - Generally, Estate Tax, New Legislation, Wills | Permalink | Comments (0)

Tuesday, June 13, 2017

Dividing Up Your Estate: Does It Ever Make Sense to Split It Unequally?

UnequalMany parents have children that reach different levels of monetary success in their lives. This can be a difficult consideration when drafting a will. Should the economically successful child receive less, or should assets be split equally? Carrie Schwab-Pomerantz, CFP, recognizes the potential pitfalls associated with unequal asset division. Children oftentimes consider the final gift left by a parent to be a reflection of their love and affection. A child receiving a smaller gift may infer the deceased parent is penalizing them for their life choices. Such a perceived slight can trigger resentment and may create a familial rift that could last for years.

Another concern may be the unknowability of future earnings. A financially successful child may not maintain high earnings indefinitely. At death, an unequal dispersion of assets may not reflect the current financial status of children. Regardless of the final distribution decision, talk to children about the terms of the will and seek advice from a professional.

See Carrie Schwab-Pomerantz, Dividing Up Your Estate: Does It Ever Make Sense to Split It Unequally?, Huffpost, April 26, 2017.

June 13, 2017 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Saturday, June 10, 2017

10 To-Do Items for Your Estate Plan

TodoHere is a helpful list of ten methods to keep your estate plan current:

 

 

 

  1. Review your existing will and any trust agreements.
  2. Consider your named executors and trustees and whether they remain appropriate.
  3. Review beneficiaries.
  4. Review financial powers of attorney.
  5. Review existing insurance coverage.
  6. Review investments.
  7. Review how your assets are titled.
  8. Fund your trusts.
  9. Confirm estate domicile.
  10. Meet with your estate planning attorney and financial professionals to review the above tasks.

See Lisa P. Staron, Your Mid-Year Estate Planning Checklist: 10 Things You Should be Doing Now, The National Law Review, June 6, 2017.

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

June 10, 2017 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Thursday, June 8, 2017

Article on Burdens, Presumptions & Confusion in the Law on Want of Knowledge and Approval

WalesBrian Sloan recently published an Article entitled, Burdens, Presumptions and Confusion in the Law on Want of Knowledge and Approval, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

In the context of an ageing population and numerous challenges to wills in England and Wales, this article considers the doctrine that a testator must know and approve of the contents of his will to ensure its validity. It analyses several ostensible fundamental principles related to it, particularly in light of the potentially difficult and contradictory Court of Appeal decision in Gill v Woodall. These principles include: (1) that the propounder of a will must “prove” it; (2) that a testator with capacity who duly executes a will is nevertheless presumed to know and approve of its contents; and (3) that (notwithstanding principle (2)) “suspicious circumstances” will require affirmative proof of knowledge and approval. The paper investigates the origin, normative justifications and current status of the principles, and in particular whether they are compatible with each other. It suggests a number of reforms.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

June 8, 2017 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, June 6, 2017

Transfer Tax Rules for the Non-Citizen Spouse

KimTransferring wealth to a spouse that is not a citizen of the US can create complex tax challenges. An example, a resident alien domiciled in the US may have an estate that is subject to taxes in another nation in which he is a citizen. If the real estate is owned in a third jurisdiction, there may be even more taxes owed. Most countries have tax treaties that must be thoroughly examined at death and for certain taxable events. The provisions in these tax treaties are usually complex, but transfer tax planning for non-citizens cannot occur until all applicable treaties have been examined.

See Kimberly Stogner, Transfer Tax Rules for the Non-Citizen Spouse, Womble Carlyle, May 23, 2017.

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

June 6, 2017 in Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Trusts, Wills | Permalink | Comments (0)