Wills, Trusts & Estates Prof Blog

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

Thursday, October 29, 2020

Estate of late Holocaust survivor sues 'Borat' creators

"The estate of a recently deceased Holocaust survivor filed a lawsuit to keep her interview out of Sacha Baron Cohen’s upcoming “Borat” movie, saying she thought the film was a serious documentary."

Creator of "Borat" approached Judith Dim Evans, who passed away this summer, to talk about the Holocaust. It turns out, Evans agreed to the interview under the impression that "Borat" was a serious documentary and not a comedy. This lead to her estate filing a lawsuit this week in Fulton Superior Court. 

Ms. Evans was reportedly "horrified and upset" to find that the movie was intended to "mock the Holocaust and Jewish culture." 

The estate claims that Ms. Evans would not have agreed to the interview if she had known of the true purpose behind it and nature of the film for which it would be used. 

The estate is seeking for the scene including Evans' interview be removed from the film, as well as damaged less than $75,000. 

See Elizabeth Rosner, Estate of late Holocaust survivor sues 'Borat' creators, Apple News, October 14, 2020. 

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

October 29, 2020 in Current Events, Estate Planning - Generally, New Cases, Television | Permalink | Comments (0)

Chicago woman's self-written obituary goes viral for her wise advice

EstateplanningA Chicago woman wrote her own obituary in which she provided timeless advice. Due to the good advice the obituary contains and the special fact that the woman wrote it herself, it has gone viral.

Stacy Lois Oliver, died on October 4. at the age of 52. Oliver died of multiple system atrophy, a progressive neurodegenerative disorder. Her death came only two years after her diagnosis/ 

Stacy's husband, Jeff Oliver, stated that she decided to write her own obituary after she found out that there was no cure for MSA. 

Jeff Oliver told Good Morning America, "She knew the disease was going to start taking more and more of her away," and "While she had it, she decided to get her thoughts out quickly."

Inspiring words from Stacy Oliver included, “I'm not telling you what to do, but I am telling you what to do,” and “Stop worrying about your weight, go live, be, do. Smile, people don't get to feel them enough.”

Stacy encouraged people to enjoy the moment and to laugh and love in abundance. 

See Ann W. Schmidt, Chicago woman's self-written obituary goes viral for her wise advice, Fox News, October 16, 2020. 

October 29, 2020 in Elder Law, Estate Planning - Generally, Humor | Permalink | Comments (0)

Wednesday, October 28, 2020

Billionaire Robert Smith Admits He Cheated On Taxes For 15 Years

TaxRobert F. Smith, is known as a "brilliant investor who built Vista Equity Partners into a private equity powerhouse and a generous philanthropist lauded for paying off student debt of Morehouse College's entire graduating class last year." 

However, on Thursday, federal prosecutors claimed that Smith concealed income and evaded taxes for 15 years. 

Smith avoided prosecution by cooperating in a case against Robert Brockman, who was has been accused of using a "web pf Caribbean entities to hide $2 billion in income in what prosecutors called the largest U.S. tax case ever against an individual."

Smith admitted that he repeatedly made false filings with the IRS, even after he attempted to enter an amnesty program in 2014. Smith has signed a non-prosecution agreement and has also agreed to pay more than $139 million in back taxes, interests and penalties. 

"Smith admitted that he used $2.5 million in untaxed funds to buy and renovate a vacation home in Sonoma, California, paying for it in 2005 with private equity funds deposited into accounts in the British Virgin Islands and Banque Bonhote in Switzerland."

"In 2014, Smith directed Excelsior to contribute $182 million in shares in a Nevis-based entity, Flash Holdings LLC. The shares went to Fund II Foundation, a U.S.-based charity that he co-founded. Smith falsely claimed that he’d been required to make that charitable contribution as part of his original agreement with Brockman. Had it been true that the offshore assets had always been designated for charity, it could have supported the view that Smith didn’t owe taxes on them." 

There are also many other instances where Smith used funds to build homes and other properties using money he concealed from the IRS. 

See Neil Weinberg & David Voreacos, Billionaire Robert Smith Admits He Cheated On Taxes For 15 Years, Financial Adviser Magazine, October 16, 2020. 

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

October 28, 2020 in Current Affairs, Current Events, Estate Planning - Generally, Income Tax, New Cases | Permalink | Comments (0)

As They Aged, They Started Businesses for People Like Them

MaryAnneMary Anne Hardy, realized that her nursing career was coming to an end, but she was not ready to retire. Hardy had heard about patient advocates, who help the elderly and their adult children "navigate the increasingly complex American health care system." 

Hardy, 65, explained, “It was a light bulb. . . I thought about my parents’ experience, and it was a motivator.” Hardy became certified as an advocate and began taking clients in 2013. 

Hardy's mother had a stroke, followed by bowel surgery and a "cascade of infections and other preventable ailments." These mishaps lead to Hardy's mother being moved from facility to facility with "little communication among medical professionals or with her." 

"Ms. Hardy is at the intersection of two long-evolving trends — the rising number of later-in-life entrepreneurs and the growth in the so-called longevity market." 

"In 2019, roughly 25 percent of new entrepreneurs were between 55 and 64, up from 15 percent 20 years earlier, according to the Ewing Marion Kauffman Foundation, a nonprofit that promotes entrepreneurship." 

Hardy believes that her age could and often does work to her advantage, as she may be more knowledgeable in helping people through the process. 

See Susan B. Garland, As They Aged, They Started Businesses for People Like Them, N.Y. Times, October 16, 2020. 

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

October 28, 2020 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, October 27, 2020

A Per Stirpes Primer From The Connecticut Supreme Court

EstateplanningIn Schwerin v. Ratcliffe, the Connecticut Supreme Court analyzed the application of and rationale behind per stripes distribution. "The Court analyzed the terms of two family trusts and law from Connecticut and other jurisdictions to determine the correct generation to serve as the root for the per stirpes distribution in this case."

The plaintiffs, Francis and Brenda Schwerin sought a declaratory judgment regarding proper distribution of assets from two family trusts. The two trusts were (1) the Hubbell Trust and (2) the Roche Trust. Defendants were the trustees and potential beneficiaries of the trusts. 

The Hubbell Trust was to expire upon "the death of the last survivor of the grantor [Harvey Hubbell III], his wife Virginia W. Hubbell, his children Harvey Hubbell, Jr., William [Ham] Hubbell and Elizabeth H. Schwerin, and his grandchildren Lisa Lorraine Hubbell and Francis Timothy Schwerin …”

The Roche Trust was set to expire upon the death of the last survivor of the grantor [Roche], her son Harvey Hubbell, her grandchildren Harvey Hubbell, Jr., William [Ham] Hubbell and Elizabeth H. Schwerin, and her great-grandchildren Lisa [Lugovich] and Francis Timothy Schwerin …”

The people in quotations were defined as the measuring lives for the expiration of the Trusts. Therefore, the Trusts would expire upon the death of the last survivor of the measuring lives. 

When this case was brought, five of the measuring lives were deceased. 

In analyzing the rational behind Per Stirpes Distribution, the  Connecticut Supreme Court stated that when the testator has not "expressly provided otherwise" the law favors an equal distribution. 

The Court ultimately concluded that "the trial court properly determined that the per stirpes distribution began at the level of the children of the grantor, such that each child was the head of each stirpe." 

See A Per Stirpes Primer From The Connecticut Supreme Court, Probate Stars, October 20, 2020. 

October 27, 2020 in Estate Administration, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

IRS announced 2021 inflation-adjusted rates

IrsIn Rev. Proc. 2020-45, the IRS announced the 2021 inflation adjusted rates including:

The gift and estate tax exclusion increased to $11.7 million for deaths in 2021 (up from $11.58 million for deaths in 2020).

The annual gift tax exclusion remains the same at $15,000.

Note that these amounts could change if Democrats win the White House and both Houses of Congress. Candidate Biden is on record stating that the estate tax exclusion should be limited $3.5 million per person and the gift tax exclusion should be separated from the estate tax exclusion and reduced to $1,000,000.

 

October 27, 2020 in Current Events, Estate Tax, Gift Tax | Permalink | Comments (0)

Potential Estate Planning Implications of 2020 Election Results

EstateplanningAs the presidential election approaches, there has been a lot of discussion surrounding the potential tax law changes. Although nothing is for certain, there are many things that certainly could happen, especially if Joe Biden is elected president and the Democrats gain the majority of both the Senate and the House. 

Potential Tax Law Changes include:

  • Lower Transfer Tax Exemptions
  • Higher Transfer Tax Rates
  • No Income Tax Basis Adjustment at Death
  • Taxation of Capital Gains at Ordinary Income Tax Rates
  • Elimination of Other Popular Estate Planning Tools

 

As the potential tax changes loom about, there are few Year-End Planning Considerations that you should take into account before it is too late:

  • Use "bonus" Exemptions Before They Expire
  • Use Popular Planning Tools Before They Are Eliminated
  • Take Advantage of Low Interest Rates and Depressed Asset Values 
  • Build In Potential Access to Transferred Funds
  • Consider Accelerating Capital Gains
  • Do Not Wait Until December 31st 

As everyone' situation is unique, some of these considerations may not be worthy of your consideration, but it is always better to consider potential options before the options no longer exist. 

See Potential Estate Planning Implications of 2020 Election Results, Winstead PC, October 19, 2020. 

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

October 27, 2020 in Current Events, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, Trusts, Wills | Permalink | Comments (0)

Monday, October 26, 2020

Electronic-Wills Legislation: The Uniform Act versus Australian and Canadian Alternatives

Adam J. Hirsch and Julia C. Kelety have recently posted on SSRN their article entitled Electronic-Wills Legislation: The Uniform Act versus Australian and Canadian Alternatives, an earlier version which appeared in the September/October 2020 issue of Probate & Property magazine. Here is the abstract of their article:

Electronic wills, created on a computer and never executed on paper, are valid in only a few American jurisdictions today. Nonetheless, in 2019 the Uniform Law Commission promulgated the Uniform Electronic Wills Act and recommended it for adoption in every state. This article examines the Uniform Act and identifies weaknesses in its statutory blueprint. The article also challenges the proposition that electronic wills are appropriately dealt with under Uniform legislation. As an alternative, the article proposes that American states direct their attention to laws long in effect throughout Australia and in parts of Canada that validate electronic wills (along with audio- and video-wills) through harmless-error rules. Instead of creating a formalizing mechanism for e-wills, these foreign laws are remedial, allowing courts to probate e-wills that were improperly formalized under statutes that continue to call for paper wills. The article assesses the advantages and disadvantages of the two competing legislative models and argues that the foreign model is superior. Finally, the article suggests language for American statutes patterned after Australian and Canadian legislation.

October 26, 2020 in Articles, Technology, Wills | Permalink | Comments (0)

Tax Court to Update to DAWSON Case Management System

TaxThe U.S. Tax Court has recently announced that it will soon make the transition from its current case management system to DAWSON (Docket Access Within a Secure Online Network). "DAWSON is named after former Tax Court Judge Howard A. Dawson, Jr., who passed away in 2016. . ."

Due to the new transition, the Tax Court's current w-filing system will become inaccessible beginning at 5:00pm EST on November 20, 2020. Also, all electronic files will become read-only. 

Cases will still be electronically viewable, but documents may not be e-filed and no orders or opinions are expected to be issued during the transition. 

It is likely that Tax Court judges will avoid setting deadlines during this period of transition due to the obstacles presented by doing so the "old-fashioned" way. 

DAWSON is expected to enhance the following features:

  • Electronic filing of petitions and payment of filing fee
  • More user-friendly interface
  • Web-based, mobile-friendly and fully integrated system.

DAWSON is expected to bring a "significant upgrade" for Tax Court practitioners that will minimize delays and obstacles. 

See Jenny L. Johnson Ware, Andrew R. Roberson, & Kevin Spencer, Tax Court to Update to DAWSON Case Management System, McDermott Will & Emery: Tax Controversy 360, October 22, 2020. 

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

October 26, 2020 in Current Events, Estate Planning - Generally, Resource Links, Technology | Permalink | Comments (0)

Britney Spears' conservatorship keeps her from marrying, having a baby, makeup artist says

BritWhat has become a quite popular topic in the tabloids, is Britney Spears' conservatorship and the lack of control Spears appears to have due to said conservatorship. 

Following her public meltdown over a decade ago, Britney Spears has been under a legal guardianship, in which her father Jamie has been in charge of her finances and everyday life. 

Spears' makeup artist, Maxi, stated that it is quite possible that Spears would have married an even had children with her boyfriend Sam Asghari if not for the conservatorship forbidding her from doing so.

Maxi stated, "I can tell you what they’re still controlling to this day is whether she has a baby or not, whether she gets married or not, who her friends are, and those are some big things.” Maxi also added, "We're talking about some 'Handmaid's Tale'-type things to keep her from having a baby. Like we're talking... I can't detail and I'm not gonna specifically say, but I will say for sure, she would've had a baby by now. She would've probably been married to Sam by now. She would have groups of friends around her." 

Spears has made it quite clear that she is not in favor of her father being her conservator as she has filed court documents fighting the conservatorship.

One thing that fans of Britney Spears have noticed is that she has gained more control over her social media, which she has used to post a couple of questionable videos of her dancing.

October 26, 2020 in Current Events, Estate Planning - Generally, Guardianship, Music | Permalink | Comments (0)