Wills, Trusts & Estates Prof Blog

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

Wednesday, October 20, 2021

Injunctive Relief to Prevent Monetary Damages in Estate Litigation

Estate planningGenerally, a party is only entitled to injunctive relief if they can "demonstrate that the damages for which they seek redress are not compensable by an award of monetary damages. . ."

However, the US District Court recently decided that injunctive relief was necessary to preserve monetary assets pending the resolution of the matter. Though it is rare to see estate litigation before a US District Courts the Court applied New Jersey law to reach its holding that injunctive relief was appropriate. 

The US District Court found that "the decedent had improperly taken a large sum of money from the party who had brought the litigation" after the plaintiff discovered that the decedent's estate was going to sell a parcel of property. The plaintiff moved for an injunction requiring the proceeds from the sale to be held in escrow. The District Court found that injunctive relief was necessary to "preserve the status quo and prevent the dissipation of these assets prior to a ruling on the merits." 

The Court further concluded that the plaintiff would suffer irreparable harm should the assets be distributed before the conclusion of the lawsuit. 

The District Court's decision indicates that courts may impose injunctive relief in order to protect monetary assets. 

See Paul W. Norris, Injunctive Relief to Prevent Monetary Damages in Estate Litigation, Stark & Stark Attorneys at Law: New Jersey Law Blog, October 12, 2021. 

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

October 20, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, October 19, 2021

Reimagining Postmortem Conception

Kristine S. Knaplund recently published an article entitled, Reimagining Postmortem Conception, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents. And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception--a New York amendment effective in February 2021--the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive. This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

October 19, 2021 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Approaching Equitable Retirement Tax Incentives

Albert Feuer has recently posted on SSRN  his article entitled Approaching Equitable Retirement Tax Incentives.   Here is the abstract of his article:

In September, the Ways-and-Means Committee of the House approved proposals to substantially improve the equity of retirement tax incentives for American workers. The new requirement that employers automatically enroll employees in a simple defined contribution plan, and the new refundable retirement savings tax credits, both do so. One major proposal needs to be added. Roth individual retirement accounts and annuities (IRAs) must be subject to the same required minimum distribution (RMD) rules as traditional IRAs. Other Committee proposals may be improved. Simplify the new excess balance distribution rules for a taxpayer, whose aggregate IRA and defined contribution accounts exceed $10 million at the end of a tax year. Harmonize the sanctions for excess balance violations with those for RMD rule violations. Simplify the new Roth IRA conversion rules. Remove the income threshold triggers for the new limits. Increase reporting about participant and beneficiary individual accounts.

Congress is now considering how to better implement the common-sense principle that tax incentives to encourage adequate retirement savings be focused on retirement savings. By increasing transparency and the benefits directed at those with inadequate retirement saving as described herein, and reducing loopholes and undue complexity, Congress may not only increase the equity and efficacy of our huge retirement tax incentives and our tax system, but boost Americans’ confidence in their government.

October 19, 2021 in Articles, Non-Probate Assets | Permalink | Comments (0)

Monday, October 18, 2021

As Second Homes Get Far More Use, the Question Is: Where Do You Live?

Estate planningOf course, owning one home comes with its challenges. But the challenges may mount even higher when owners split their time equally between two or more properties. In these cases, owners face tax, legal, financial, and personal challenges. 

The Rounds family have recently faced these challenges since they have began to spend an extensive amount of time at their second home in the Teton Vally region on the Wyoming/Idaho border. 

Mr. Rounds and his wife closed on a $2.5 million house in Idaho, and although the family planned on splitting their time equally between their home on the East Coast and the new home, they have already spent six months in the new home. 

The family has had to figure out how to "ship cars halfway across the country, find a second pediatrician for their 11-mont-old-daughter, and get their three Maltese dogs back and forth between the two homes." These challenges are not typically encountered by people who only spend weekends and the occasional vacation week at a second home. 

This "co-primary home" lifestyle has been the norm for the ultra-rich. But due to the pandemic, working remotely has become more of the norm and has made the co-primary home lifestyle a more realistic lifestyle choice for second-home owners who are less wealthy.

For those thinking about the lifestyle, it is important to consider the tax, financial, legal, and personal challenges that may come along with it.

See E.B. Solomont, As Second Homes Get Far More Use, the Question Is: Where Do You Live? , The Wall Street Journal, October 14, 2021.

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

October 18, 2021 in Estate Administration, Estate Planning - Generally, Income Tax, Travel | Permalink | Comments (0)

Sunday, October 17, 2021

National Estate Planning Awareness Week October 18-24, 2021

National Estate Planning week will begin on Monday, October 18 2021 and will extend to October 24, 2021. National Estate Planning week was adopted in 2008 "to help the public understand what estate planning is and why it is such a vital component of financial wellness." 

The National Association of Estate Planners & Councils (NAEPC) is the association of choice for estate planning professionals. The NAEPC is made up of 2,000 Accredited Estate Planner designated professionals, 270 affiliated local estate planning councils, and 30,000 members with ongoing education and a forum for networking within the estate planning community. 

The NAEPC had this message for Councils: 

NAEPC's goal is to work with affiliated local councils to reach every American annually with a reminder about the need for estate planning. It is our hope our councils will host education events, call-in phone banks, and seminars each and every October to help spread the word: YOU need estate planning TOO!

As leaders in the estate planning community, your members have first-hand experience with the challenges Americans face with regard to saving, investing, and planning for their future. As an estate planning council, you have the ability to make a significant impact in your home community. 

See NAEPC, National Estate Planning Awareness Week October 18-24, 2021, naepc.org, last visited October 17, 2021. 

October 17, 2021 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Saturday, October 16, 2021

Cher Sues Sonny Bono's Widow, Mary, for Withholding Royalties

CherCher has filed suit against Sonny Bono's widow, Mary Bono, alleging that Sonny's widow has "been withholding royalties from Sonny and Cher's 1960s hits. . .such as 'I Got You Babe' and 'The Beat Goes On." 

According to the legal documents filed in Federal Court, Cher claims that she and Sonny agreed to an equal split of their music royalties when they divorced in 1975. Cher claims that she and Sonny executed a deal when the couple settled the divorce in 1978. 

Cher alleges that Mary has been trying to "undo her ownership of those rights and royalties in recent years." 

Cher and Sonny married in 1964 and were very successful as a couple in the early '70s before they divorced. Cher went on to have a successful solo career, while Sonny became a California politician. Sonny was married to Mary when he died in a skiing accident in 1998. 

According to reports, Cher and Mary got along well after Sonny's death, but their friendship has clearly ended as Cher is now suing for at least $1 million in damages and is asking a judge to declare the 1978 divorce settlement enforceable. 

See Cher Sues Sonny Bono's Widow, Mary, for Withholding Royalties, TMZ, October 14, 2021. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

October 16, 2021 in Estate Administration, Estate Planning - Generally, Music | Permalink | Comments (0)

Friday, October 15, 2021

Top state court upholds trust provision requiring beneficiary to be unmarried

TrustOn October 8th, the Indiana Supreme Court upheld a trust provision that made distribution of an inheritance contingent on the beneficiary being unmarried. 

The Court held that the provision "is not an unlawful restraint on marriage." The provision was part of a revocable trust that "resulted in the estate of Marcille Borcherding to her son, daughter and four stepchildren after her death." 

The trust stated that Marcille's son, Roger Rotert, would get his share of the estate outright if he was unmarried at the time of her death. If Rotert was to be married, the assets would remain in a subtrust. 

Rotert's third wife filed for divorce before Marcille Borcherding executed the trust, but the couple reconciled and were still married when Marcille died in 2016. Marcille's daughter Connie Stiles, who served as a trustee for the subtrust, came to an agreement with Rotert in which Rotert agreed to receive the subtrust's cash assets and agreed to keep the real property in the trust. Rotert later brought suit. 

Indiana law voids will provisions that condition a spouse's inheritance on remaining unmarried, but the Indiana Supreme Court stated that the rule does not apply to trusts, which can set marriage conditions on spouses and others.

See Debra Cassens Weiss, Top state court upholds trust provision requiring beneficiary to be unmarried, ABA Journal, October 13, 2021. 

October 15, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Thursday, October 14, 2021

Article: Trustee Decision-making in the Australian Superannuation Context

Tobias Barkely recently published an article entitled, Trustee Decision-making in the Australian Superannuation Context, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: Estate planning

The Australian compulsory superannuation system contains $AUD 3 trillion in funds, which is a substantial share of the personal wealth held in Australia. This means decisions made by superannuation trustees are important for everyone in Australia, both as beneficiaries and as participants in the Australian economy. The regulation of trustee decision-making, like the superannuation system as a whole, is founded on the equitable principles of trust law, but with an extensive overlay of legislative and regulatory intervention. Examining the regulation of decision-making in this context provides important insights into foundational trust law principles as well as a major component of wealth management in Australia.

October 14, 2021 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Pandora Papers: Secret wealth and dealings of world leaders exposed

The Pandora Papers revealed the secret wealth and dealings of world leaders, politicians and billionaires. About 35 current and former leaders and more than 300 public officials are named in the files from offshore companies, which are being referred to as the Pandora Papers.

PandoraThe examination of the files, organized by the International Consortium of Investigative Journalists (ICIJ), is the largest examination by the ICIJ with more than 650 reporters taking part. 

In what has been called one of the biggest leaks of financial documents, exposés include the King of Jordan who secretly amassed £70m of UK and US property, ex-UK PM Tony Blair and his wife who saved £312,000 in stamp duty when they bought a London office and bought an offshore firm that owned the building. 

Also included in the leak is information on secret assets in Monaco that belong to Russian President Vladimir Putin. The leak also shows the Czech Prime Minister Andrej Babis failed to declare an offshore investment company used to purchase to villas for £12m in the south of France. 

The joint investigation is made up of access to nearly 12 million documents and files from 14 financial services companies in countries including the British Virgin Islands, Panama, Belize, Cyprus, the United Arab Emirates, Singapore, and Switzerland. 

Among the allegations brought against some figures are corruption, money laundering, and global tax avoidance. 

See Pandora Papers reporting team, Pandora Papers: Secret wealth and dealings of world leaders exposed, BBC News, October 3, 2021. 

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

October 14, 2021 in Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, October 13, 2021

Article: Incentivizing Wills Through Tax

Margaret Ryznar recently published an article entitled, Incentivizing Wills Through Tax, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

There have been recent calls to loosen will formalities in order to allow more people to execute wills, the importance of which has been highlighted by the COVID-19 pandemic. The reduction of necessary will formalities can be successful in expanding the use of wills, as can potential tax incentives for creation of wills, such as a tax credit. However, there are numerous advantages to using tax to initiate change, as considered in this Article.

October 13, 2021 in Articles, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, Wills | Permalink | Comments (0)