Wills, Trusts & Estates Prof Blog

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

Friday, August 12, 2016

Monetizing Images and Intellectual Property of Celebrities

Dead celebsWith the recent deaths of Prince and David Bowie, there is greater focus on the process for monetizing the images and other intellectual property in celebrity estates. Recordings and music publishing are handled by national law while the individual states determine rights of publicity. Specifically, rights of publicity are normally given broad protection but states do vary on the executors’ rights. Accordingly, the monetizing of publicity rights for deceased celebrities requires careful estate planning, including planning for updated technology, identifying the celebrity’s intellectual property, due diligence in marshaling the property, maximizing revenue, and protecting against infringement. Additionally, an adapted estate plan should consider merchandising rights, and whether or not they are signed away through contract. A celebrity’s estate plan can fulfill their dreams of success after they are gone, but it must be done with precise planning.    

See Derek Handova, How Do Estates Monetize Images and Intellectual Property of Dead Celebrities?, IPWatchdog, August 10, 2016.

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

August 12, 2016 in Current Events, Estate Administration, Estate Planning - Generally, Music, Wills | Permalink | Comments (0)

Thursday, August 11, 2016

Avoiding These Eight Red Flags in an Estate Plan

RED-FLAG-1A true estate planner is able to foster trustworthy relationships with their clients while serving them in the fullest capacity. If you notice a gap in an estate-planning document, realize this red flag and know how to solve it.

When creating an estate plan, one goal many clients have is to avoid probate; on the other hand, a lot of clients draft a properly written will. Make sure that your clients goals are met and fill any gap in this estate-planning document. If a trust is in the estate plan, make sure that there is proper funding. Also, protect your client’s assets from creditors by never leaving valuable assets exposed. Similarly, do not leave inheritances in the hands of uninformed beneficiaries who can expose their gifts to creditors as well. Another good idea is to appoint trustees in a manner that gets the job done; you do not want fighting or miscommunication to burden future heirs. Furthermore, a planner should make sure that all account beneficiaries are updated along with any estate-planning documents. Accordingly, life insurance should be right for your client’s situation, determining whether too little or too much insurance can pose a problem. Finally, emphasize to your clients that they need a long-term care arrangement, helping with any unforeseen medical expenditures.

See Eight Red Flags That Your Client’s Estate Plans Are Out of Whack, Wealth Management, August 5, 2016.

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

August 11, 2016 in Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Intestate Succession, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Tuesday, August 9, 2016

How to Set Up a Pet Trust

Pet trust beyerPet trusts are a way to care for your loving friends after you have passed. In an interview, Gerry W. Beyer sets out to explain exactly how to accomplish setting up a pet trust fund. Because pets are considered property in the United States, you cannot leave money directly to the animal in your estate planning documents; instead, you leave money in a trust, which dictates a caregiver and trustee to ensure the animals properly taken care of. In a traditional pet trust, you can detail how to provide care by specifying the expenses for the pet as opposed to a statutory pet trust, which is just a provision in a will. A traditional pet trust will create a legally enforceable obligation. When setting up a pet trust, some considerations include the type of animal, its life expectancy, and the type of care you wish the animal to have.  

See Jules Suzdaltsev, Why Rich People Set Up Trust Funds for Their Pets, Vice, August 1, 2016.

August 9, 2016 in Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, August 8, 2016

Avoiding Estate-Planning Mishaps

Estate planningNot only do people underestimate the effort that goes into creating a will, they also underestimate the problems that can result if they do not have one. So, there are four basic strategies for helping your transfer of wealth go as smoothly as possible. First, it is most important that you have a simple will in place. Next, you should create a living trust, which can help protect your assets and avoid probate. Also, properly title your accounts, so that your individual investment account is not in danger of going to probate. Finally, have a life insurance policy; these policies help cover financial expenses for your loved ones.

See Tanya Tucker, 4 Strategies to Avoid an Estate-Planning Mishap, Trust Advisor, August 3, 2016.

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

August 8, 2016 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Saturday, August 6, 2016

Beneficiary's Pre-suit Discovery Not Estopped

Estoppel discoveryTexas Rule of Civil Procedure 202 allows a limited method of discovery before filing suit, proving useful for those who want to investigate a potential claim. There are, however, some requirements that make it more limited in probate litigation than a regular lawsuit.

In In re Meeker, a son filed a Rule 202 petition for pre-suit discovery to help aid him in a potential will contest; he sought to find out whether his father had capacity at the time of will execution. The executor challenged this allowance on the basis that the son had already accepted benefits and therefore had no standing to contest the will. Looking at precedent, there are some cases that hold a person is estopped from contesting a will after accepting benefits; however, there are some cases that say a beneficiary is not estopped, if they stand to gain more from a successful contest. The latter is what the son was trying to prove, and the court of appeals agreed with him, finding that the exception to the estoppel rule applied

See J. Michael Young, Estoppel Does Not Prevent Beneficiary from Pre-suit Discovery, Texas Probate Litigation, July 5, 2016.

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

August 6, 2016 in Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Monday, August 1, 2016

Indiana Adopts the Revised Uniform Fiduciary Access to Digital Assets Act

Digital assets actOn July 1, 2016, Indiana adopted the Revised Uniform Fiduciary Access to Digital Assets Act. The Act authorizes the utilization of an online tool to direct the user’s custodian to disclose or not disclose the user’s digital assets. The online tool allows the user to modify or delete directions at all times, so a user’s online direction detailing disclosure overrides a contrary direction in the user’s will, trust, power of attorney, or other record. So, for example, a direction made under the online tool will trump the specified agent under a power of attorney or any other estate planning document.

See Senate Bill 253, Indiana General Assembly 2016 Session.

Special thanks to Keith Huffman (Attorney, Dale, Huffman, & Babcock Lawyers) for bringing this Article to my attention.  

Download 20160729090328848

August 1, 2016 in Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)

Sunday, July 31, 2016

How a Will Can Be Unequal But Fair

Unequal willOftentimes, children see the inheritance from their parent’s as the final accounting of their love, so anything other than an equal split is hard to accept. However, it is possible for parents to leave inheritances that are unequal but fair. The challenging part comes with how those children will deal with such division. This is where good open communication can solve the hurt from tough decisions. Purposefully leaving money unequally requires greater foresight, so a conversation and good estate plan can help solve a lot of these problems.

See Paul Sullivan, How a Will Treating Children Differently Can Still Be Fair, NY Times, July 29, 2016.

Special thanks to Jerry Borison (Professor of Law, University of Denver Sturm College of Law) & Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.


July 31, 2016 in Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, July 28, 2016

How to Protect Your Assets When Getting Remarried

RemarriedThe biggest estate-planning question when getting remarried is, how do I reconcile preserving assets for my children from a previous marriage while still taking care of my commitment to my new spouse? Usually, heirs fear the new spouse because most all states give rights to a spouse to take some part of the decedent spouse’s estate. An ex-spouse could also still hold they key to certain assets if your estate-planning documents are not up to date before passing. Therefore, consider updating your estate-planning documents, including provisions about your new spouse as executor, the holding of assets individually or jointly, your new spouse on deeds, and specific bequeaths to children from previous marriages. Additionally, there are some common estate-planning mistakes after remarrying that you should avoid, such as no prenuptial, no verbal instructions to loved ones, and no planning for long-term care.

See Deborah Nason, Getting Remarried? Protect Your Assets and Your Interests, CNBC, July 28, 2016.

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

July 28, 2016 in Estate Administration, Estate Planning - Generally, Estate Tax, Trusts, Wills | Permalink | Comments (0)

Tuesday, July 26, 2016

Article on Antemortem Probate

AntemortemKatherine M. Arango recently published a Note entitled, Trial and Heirs: Antemortem Probate for the Changing American Family, 81 Brook. L. Rev. 779 (2016). Provided below is a summary of the Note:

The Pritchett-Dunphy-Tucker family has brought the diversity of today's modern American family center stage and has replaced the Bradys of the 1970s and the Cleavers of the 1950s. The notion of the traditional American family has changed dramatically due to the rise in divorce rates and remarriages, the growing popularity of cohabitating, and the increased acceptance of same-sex couples. Andrew J. Cherlin, a professor of public policy at Johns Hopkins University, acknowledged that “[the] turnover in our intimate partnerships is creating complex families on a scale we've not seen before,” and although families have undergone an enormous change, our society is very much still in the midst of a transformation. But the law of succession has failed to keep pace with the emergent population of nontraditional families.

In light of the American family's changing dynamics, this note first explores how inheritance law could benefit from an antemortem probate statute that would protect a growing population of Americans. It then encourages the drafters of the Uniform Probate Code (UPC) to adopt antemortem probate procedures. Part I of this note considers the American family's changing structure and explains how current inheritance laws do not protect the changing American family. Part II discusses the background of antemortem probate, including its history and the proposed models for an antemortem statute. This part also describes the antemortem statutes currently in effect in five states and the arguments for and against the antemortem measure. Part III proposes implementing an antemortem probate statute that incorporates aspects of current state statutes and the Administrative Model (which proposes that a state implement an ex parte proceeding in which a decisionmaker considers the testator and the testator's particular factual circumstances in *782 order to determine a will's validity). Lastly, Part IV proposes a statute that the drafters of the UPC could adopt.

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

Article on Family Provision Will Contests

Family will contestBen White, Cheryl Tilse, Jill Wilson, Linda S. Rosenman, Kelly Purser, & Sandra Coe recently published an Article entitled, Estate Contestation in Australia: An Empirical Study of a Year of Case Law, 38 U. New S. Wales L.J. (No. 3) (2015). Provided below is an abstract of the Article:

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

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