Wills, Trusts & Estates Prof Blog

Center for Rural Pennsylvania: Survey of Written Wills

A survey conducted in September 2023 by Susquehanna Polling and Research reveals that less than half of rural and urban adults in Pennsylvania have a written will outlining their wishes for handling money and estate after death. 

The poll involved 700 registered voters in Pennsylvania and was conducted from September 19-28, 2023, with a margin of error of +/-3.7 percent at the 95 percent confidence level. Respondents unsure if they had a written will were excluded from the analysis.

The analysis indicates that age and educational attainment play a role, with older and more educated individuals being more likely to have a written will. The top reason for not having a will is the perception of not needing one, mainly due to insufficient assets or the belief that the family will inherit everything. The survey also shows variations based on gender and race, with men and white individuals more likely to have a written will. Additionally, urban residents with higher educational levels are more likely to possess a will. 

Recognizing individuals' desires for asset distribution after death is crucial for families and presents an opportunity for community foundations. These organizations could benefit from potential benefactors' assets through basic planning efforts, contributing to community development. The study highlights that 46 percent of rural Pennsylvanians with a written will align with the national rate.

For more information see “Survey of Written Wills”, Center for Rural Pennsylvania, November 2023.

Sandra Day O’Connor, first woman Supreme Court justice, dies at 93

Sandra Day O'Connor, the first female Supreme Court justice, passed away at the age of 93 in Phoenix, Arizona. 

Diagnosed with dementia in 2018, she withdrew from public life, having served on the bench for 24 years. O'Connor was pivotal in landmark decisions and known for her diverse accomplishments, including being a judge, Arizona legislator, cancer survivor, and trailblazer for women, she received the nation's highest civilian honor from President Barack Obama.

O'Connor faced significant challenges in her early job search due to gender discrimination, with 40 law firms rejecting her for being a woman. Despite the setbacks, she persisted and accepted a legal secretary position. Opting for the public sector, she served as a deputy county attorney in San Mateo, California, and later worked as a civilian attorney in Germany. Returning to the U.S., she practiced law in Arizona, eventually becoming assistant attorney general in 1965. O'Connor entered politics, serving three terms in the Arizona Senate and making history as the first female majority leader in the United States in 1973.

Her perseverance led to her historic appointment to the Supreme Court in 1981, becoming the first woman on the Court. Despite facing early gender-based challenges, she felt a special responsibility to perform well and pave the way for future female appointments. O'Connor, a moderate conservative and often labeled a swing voter who, a term she rejected, emphasized her commitment to legal principles in decision-making. Her impact on the Supreme Court extended beyond her rulings, as she prompted the establishment of the first women's restroom near the courtroom, highlighting the Court's lack of female accommodations.

O'Connor retired in 2006 to care for her husband with Alzheimer's, and Samuel Alito succeeded her. She is survived by her three sons – Scott, Brian, and Jay – and six grandchildren, as well as her brother, Alan Day.

For more information see Juja Murgai and David Cohen “Sandra Day O’Connor, first woman Supreme Court justice, dies at 93”, Politico, December 1, 2023.

Henry Kissinger, secretary of state under Presidents Nixon and Ford, dies at 100

Former Secretary of State Henry Kissinger, a prominent diplomat known for shaping U.S. foreign policy during the Vietnam War era and improving relations with China, has passed away at the age of 100. 

Kissinger, with his distinctive presence and influential behind-the-scenes role, played a significant part in global affairs under Presidents Nixon and Ford, receiving both criticism and the Nobel Peace Prize. His influence expanded during the Watergate scandal, where he assumed a co-president-like role. 

As a teenager, Kissinger fled Nazi Germany and later cultivated a statesman image, engaging in advisory roles and managing a consulting business. While praised, he faced ongoing criticism for his policies in Southeast Asia and support for repressive regimes in Latin America. Throughout his eight years in government, Kissinger tackled major foreign policy issues, conducting groundbreaking "shuttle diplomacy" for Middle East peace and initiating secret channels to mend U.S.-China relations.

Last year at the age of 99, Kissinger continued his active engagement, touring for his book. In a July 2022 interview, he defended his past decisions, stating they were the best he could make at the time. Reflecting on Nixon, he acknowledged both foreign policy successes and domestic policy effectiveness, but criticized Nixon's inappropriate actions. 

Kissinger shared two children, Elizabeth and David, with his first wife, Ann Fleischer. He married his second wife, Nancy Maginnes, in 1974, and is survived by Maginnes and his two children, as well as five grandchildren.

For more information see Nancy Benac “Henry Kissinger, secretary of state under Presidents Nixon and Ford, dies at 100”, AP, November 30, 2023.

Article: The Law of a Last Request: Bury Me with My Favorite Toy, Part 1

William A. Drennan (Southern Illinois University Law School) published an Article in the ABA Probate & Property Magazine, Bury Me with My Favorite Toy, Part 1, Probate & Property Magazine, November/December 2023. Provided below is an introduction to the Article:

Can you take it with you? At least into your casket? Casket manufacturers now mass-produce caskets with “memory drawers” and “secret compartments” that can hold prized possessions and mementos. See Key Features on Which to Base Your Choice of a Casket, ToCanvas (Jan. 27, 2020), https://www.tocanvas.net/key. How can estate planners design and draft to help clients who want to take a cherished item along? This first article discusses potential client motivations, actual burial fact patterns, and techniques for an estate planner to address the one reported judicial opinion on this issue, which concluded the direction was unenforceable because it encouraged grave robbing. The second article, in a future issue, will focus on why this is a particularly challenging practical and legal area and describe potential design and drafting options for addressing the major legal issue beyond grave robbing—whether these directions are unenforceable under the public policy doctrine because of economic waste.

Article: Celebrity Estate Planning: Misfires of the Rich and Famous VI

Jessica Galligan Goldsmith, Erica Howard-Potter, John S. Kiely, Merrie Jeanne Webel, Kirsten A. Curatolo, David E. Stutzman, and Samuel F. Thomas published an Article in the ABA Probate & Property Magazine, Celebrity Estate Planning: Misfires of the Rich and Famous VI, Probate & Property Magazine, November/December 2023. Provided below is an introduction to the Article:

As estate planning professionals, we see many clients with poorly drafted documents and poorly conceived estate plans. Sometimes the errors made are based on mistakes of fact and sometimes they are based on mistakes of law. If clients come in time, these estate planning misfires can usually be avoided. If not, the consequences for the client’s family can be devastating. Surprisingly, wealthy celebrities are often the recipients of poor estate planning. When estate planning misfires occur, litigation among family members and with taxing authorities can be the ultimate result. The misfires discussed below involve celebrities, but the overarching issues relate to everyone.

King’s estate to transfer £100m into ethical funds after bona vacantia revelations

King Charles's estate has announced the transfer of over £100 million, including funds collected from deceased individuals through the old system of bona vacantia, into ethical investment funds. This move comes amid increasing scrutiny over the Duchy of Lancaster's use of funds from people who have died in the north-west of England with no will or next of kin.

Some of the funds were used to renovate properties owned by the King, which were rented out for profit. Additional questions have been raised about managing bona vacantia funds given to the estate's charities, with two charities having built significant endowment funds worth over £40 million. 

The Duchy of Lancaster has decided to shift its investment portfolio into environmental, social, and governance (ESG) funds, aligning its approach with that of the Duchy of Cornwall. There is no indication that the estate plans to stop collecting bona vacantia or alter how it is spent. The Duchy of Lancaster and its charities' investment portfolios, totaling £74 million, are also being transferred to ethical funds.

For more information see Maeve McClenaghan, Rob Evans, and Henry Dyer “King’s estate to transfer £100m into ethical funds after bona vacantia revelations”, The Guardian, November 25, 2023.

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

Estée Lauder is split by succession rift as heirs battle over the troubled beauty brand's future after its shares plunged 50% this year

The heirs to the Estée Lauder fortune are in a struggle over the future of the company as its shares have plummeted more than 50% this year. The Lauder family, which holds about 35% of the company's shares and 80% of the voting power, is divided on supporting CEO Fabrizio Freda's turnaround plan. Leonard Lauder, who recently left the board at the age of 90, is dissatisfied with Freda, while his son William, a former company leader, strongly supports the current CEO. 

The company faces challenges such as dependence on China, slow adaptation to platforms like TikTok, and reliance on traditional department stores. Freda's strategy focuses on reducing unsold inventory, with key tests of his position expected in late March and late June.

For more information see Keith Griffith “Estée Lauder is split by succession rift as heirs battle over the troubled beauty brand’s future after it’s shares plunged 50% this year”, The Daily Mail, November 18, 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention. 

How inheritance data secretly explains U.S. inequality

Many Americans are unlikely to receive an inheritance, with only 1 in 5 households receiving one in 2022, according to the Federal Reserve's Survey of Consumer Finances. Inheritances primarily come from parents (73%), grandparents (14%), and aunts/uncles (8%), with windfalls often including homes and other real estate.

However, since 1992, parental inheritances have nearly doubled, peaking in one's 50s. A racial gap exists, with white individuals three times more likely to inherit than their Black, Hispanic, or Asian counterparts, contributing to substantial wealth disparities.

For more information see  Andrew Van Dam “How inheritance data secretly explains U.S. inequality”, The Washington Post, November 10, 2023.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention. 

Mississippi family claims funeral home put wrong person in their loved one's casket

A grieving family in Mississippi experienced a shocking mix-up at their relative's wake upon discovering that the wrong body had been placed in the casket wearing their loved one's clothing and jewelry. 

Georgia Robinson, the sister of the deceased, sensed something was wrong upon arriving at the People's Funeral Home in Jackson for the service on November 3. She then realized that another woman was in the casket they had chosen for Mary Jean Robinson, wearing her sisters desired outfit and accessories. The family promptly brought the mistake to the attention of the funeral home staff, expressing their obvious distress over the mix-up. 

A local TV news outlet reported on the incident and chose not to publish photos out of respect for the other deceased woman's family. The report did not clarify whether the other family knew the situation or had lodged a complaint.

For more information see Christina Coulter “Mississippi family claims funeral home put wrong person in their loved one’s casket”, Fox Business, November 16, 2023.

The IRS Is Cracking Down on an Insurance Strategy Commonly Used as a Tax Shelter

The IRS is intensifying efforts to curb micro-captive insurance, a method companies employ to self-insure and exploit tax benefits. Micro-captives, often considered abusive by the IRS, allow small business owners to pool premiums and cover various risks. 

Recent funding under the Inflation Reduction Act has empowered the IRS to enhance enforcement through advanced technology and cross-departmental collaboration. Micro-captives enable owners to deduct up to $2.65 million in premiums. Still, misuse of these structures for investment purposes has triggered IRS scrutiny. The agency aims to identify and audit complex abusive tax schemes associated with micro-captive insurance.

For more information see Karen Hube “The IRS Is Cracking Down on an Insurance Strategy Commonly Used as a Tax Shelter”, Barrons PENTA, November 14, 2023.

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