Sunday, November 18, 2018
Stan Lee, former Marvel Comics publisher and chairman, passed away this week at the age of 95. Lee is survived by his 68-year-old daughter J.C., who also had the challenge of handling her mother's passage this past year as well. Stand and Joan were married for almost 70 years. It is always yet unknown if Lee had a trust or a will. Several celebrities have foregone estate planning documents recently, including Aretha Franklin and Prince.
Estate planning can be an emotional process, and maintaining one can be especially tricky as a person ages, especially if the person has cognitive degeneration. This was a potential concern for Lee, who first claimed that his daughter had befriended three men and that all four individuals were conspiring to take advantage of him, then rescinded the claim three days later. It is best to decide the issues of who will take care of personal and financial decisions before an elderly person declines. “Older people get less confident in what they’re doing, and they get more susceptible to being influenced by other people who may not have the best of intentions," said David Lehn, partner in the private client and tax team of Withers.
Lee admitted that in the beginning he worked with several attorneys and managers that either did not have the best intentions or were simply not trustworthy. Now, one of the greatest complications Lee’s estate, and specifically his daughter, will be dealing with the numerous documents potentially floating around because of these past relationships. Even people without millions of dollars and a career creating iconic superheroes should prepare for the future they will and will not be in.
See Alessandra Malito, Stan Lee’s Tangled Web of Estate Planning and How to Avoid it in Your Own Life, Market Watch, November 17, 2018.
Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.
Blended families are becoming increasingly common, and with that comes specific considerations. When one of the parents/step-parents pass away, it leaves both step-children and biological children depending on the remaining person to make testamentary decisions that would have been supported by both. Unfortunately, that is not always the case.
Here are seven specific tips for second (or third, fourth, etc.) marriage couples:
- Upon the death of the first spouse, a trust can be established for the benefit of the surviving spouse to provide them with income and perhaps principal. The spouse should not be the only trustee, and consider giving a children a bequest upon the first death.
- If spouses want to sign a joint trust then the trust should be drafted so that it becomes irrevocable upon the first death.
- As troubling as it may be on the facade, consider worst case scenarios and open a separate bank account with the children named as beneficiaries.
- Discuss funeral arrangements and plans with family members proactively, and sooner rather than later.
- Consider naming your spouse and one of your children as co-attorneys in fact.
- Communicate, communicate, communicate! Make sure everyone is on the same page, knows your wishes, and does not feel betrayed.
- Beneficiary designations trump a well drafted estate plan, so double check them.
See Meredith Murphy, Seven Estate Planning Considerations for Blended Families, Salawus, November 13, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Saturday, November 17, 2018
Tara Sklar & Rachel Zurew recently published an Article entitled, Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention, Elder Law eJournal (2018) Provided below is an abstract of the Article.
Over the last four decades, there has been a steady movement to increase access to aging in place as the preferred long-term care option across the country. Medicaid has largely led this effort through expansion of state waivers that provide Home and Community-Based Services (HCBS) as an alternative to nursing home care. HCBS include the provision of basic health services, personal care, and assistance with household tasks. At the time of this writing, seven states have explicitly tailored their waivers to support aging in place by offering HCBS solely for older adults, individuals aged 65 and over. However, there is growing concern about aging in place contributing to greater risk for social isolation, and with that increased exposure to elder abuse. Abuse, neglect, and unmet need are highly visible in an institutional setting and can be largely invisible in the home without preventative measures to safeguard against maltreatment. This article examines the seven states with Medicaid HCBS waivers that target older adults, over a 36-year period, starting with the first state in 1982 to the present. We conducted qualitative content analysis with each waiver to explore the presence of safeguards that address risk factors associated with elder abuse. We found three broad categories in caregiver selection, quality assurance, and the complaints process where there are notable variations. Drawing on these findings, we outline features where Medicaid HCBS waivers have the potential to mitigate risk of elder abuse to further support successful aging in place.
Friday, November 16, 2018
Mark J. Roe & Michael Troege recently published an Article entitled, The 2017 Tax Act's Potential on Bank Safety and Capitalization, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.
Much has been written and discussed in banking circles about recent rollbacks in prudential regulation, with some seeing the rollbacks as unsafe and others seeing them as allowing stronger financial action. Undiscussed is that the basic taxation of the corporation in the United States — and banks are taxed like ordinary corporations — has a profound impact on the level of debt and equity throughout the economy and in the banking system in particular, and that recent changes to the tax code could affect bank safety, stability, and capitalization levels.
We analyze here how and why the 2017 tax act will incentivize banks to be better capitalized, albeit modestly so. For those worried about regulatory rollbacks that decrease bank safety, this tax incentive — which has been unremarked upon and not analyzed in the academic literature, as far as we can tell — offsets some recent regulatory rollbacks. And, more important analytically and potentially for policy, we show that this tax change, if properly expanded, would have a major beneficial safety impact on banks. Properly reformed, the taxation of banks (1) can substantially improve bank safety, at a level that may well rival the improvements from post-crisis regulation and (2) can be done in a revenue-neutral way.
Parents are meant to provide, care, nurture their children and do everything in their power to allow their children become the greatest adults they could be. But what if a parent withholds an incredible opportunity from their child, supposedly out of love? Also, what if the child finds out about that betrayal years down the road, after the beloved parent has passed away?
That's what happened to Celeste, a student in high school from California with a knack for speaking France. A knack so great, in fact, that she won a local foundation's contest to spend a month in France. Upon her return, the president of the foundation was so impressed that he wrote a letter addressed to both Celeste's mother and Celeste herself, offering her a scholarship to the university of her choice in France, paying all expenses and tuition. But the mother did not pass on the message; instead she replied back that she could not stand for her daughter so be so far away for so long, and that Celeste would remain in her hometown and pursue cosmetology. The mother signed the letter "Leave us alone!"
Celeste never left home, had three adult children with French names, and never lost her love for the French language. It was not until she was going through her mother's diary 2 weeks after her passage that she discovered the letter and the selfish intent behind its refusal. She now wants to know what she can do against her mother's estate, which is giving a sizable amount to charity and grandchildren. She would first have to file a claim against the estate, as creditors are paid first, then if that is denied she would file a lawsuit against the estate, claiming her mother breached her duty to her by wrongfully withholding the offer.
Secondly, she would have to send post cards from France.
See H. Dennis Beaver, Esq., Mom's Shocking Diary Secret Triggers Legal Challenge by Daughter, Kilpinger, November 14, 2018.
Special thanks to Lorri Carpenter (CPA, Florida) for bringing this article to my attention.
Photo by @dguttenfelder | Mrs. Kotajima, age 100, Mrs. Uehara, 84, and Mrs. Shimizu, 92 share their elder care home with companion puppy and baby seal robots. The popular science fiction of many cultures depicts the rise of robots as an ominous threat. But the Japanese have long portrayed robots as friends and heroes and embrace humanoid robot technology. Increasingly, the Japanese are looking to robotic solutions for society's needs. On assignment for @natgeo in Tokyo.
See National Geographic, Instagram, November 11, 2018.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Thursday, November 15, 2018
Article on The Rhetoric of Race, Redemption, and Will Contests: Inheritance as Reparations in John Grisham's Sycamore Row
Teri A. McMurtry-Chubb recently published an Article entitled, The Rhetoric of Race, Redemption, and Will Contests: Inheritance as Reparations in John Grisham's Sycamore Row, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
When Henry “Seth” Hubbard renounced his formally drawn wills and created a new holographic will on the day of his suicide, one that excluded his children, grandchildren, and ex-wives, and gave the bulk of his estate to his housekeeper and caretaker, a will contest was imminent. That Seth Hubbard was a white man living in rural Mississippi and his housekeeper, a Black woman, made the will contest illustrative of our ongoing national discomfort with slavery, the Confederacy, and the respective obligations of and responsibilities to the descendants of both. This is John Grisham’s Sycamore Row, a novel in which the reader journeys to discover the mysteries behind Seth Hubbard’s will, his intentions, his burden as a witness to a lynching over his ancestor’s land, and the fate of the descendants of the formerly enslaved who worked and settled that land known as Sycamore Row only to see its destruction when they asserted their right to it. Seth’s act of bequeathing the bulk of his estate to a stranger made family through blood spilled over stolen land and stolen, broken Black bodies is an important start to an important discussion: Who bears responsibility to the survivors of domestic terrorism, white supremacy, and for the benefits that white privilege bestows? The will contest encapsulates the rhetoric of race and redemption; in Sycamore Row Hubbard’s estate acts as reparations.
This Article explores the rhetoric of race, redemption, and reparations in Sycamore Row and as it plays out in American jurisprudence in three parts. Part II explores how the will contest in Sycamore Row illustrates arguments for and against reparations. Specifically, it evaluates how Aristotle’s Persuasive Appeals logos (using evidence and epistemology to persuade), pathos (using emotions to persuade), and ethos (using character to persuade) become racialized in the nomos (the normative universe where they function), both in Seth Hubbard’s will and the will contest that follows, and as used as appeals in reparations litigation. Part III uses interdisciplinary narrative theory to interrogate the language of Seth Hubbard’s will as his cultural narrative of race, racism, and redemption. It also considers how Seth’s story is a story of American racism that ends differently from our current American story. Seth’s story is a doorway to hope and a different way of viewing obligations and responsibilities to redress racial wrongs. In the final section, Part IV, the Article turns to the concept and practice of reconciliation, specifically how Seth Hubbard’s actions through his will, the backlash from his family, and the reverberations throughout Clanton, Mississippi provide a glimpse of racial reconciliation in practice. Hubbard’s will and the context for its creation demonstrate that racial reconciliation begins with acknowledgment of harm done, presents a plan to address the harm, and contains an action or action(s) to implement the plan. While Hubbard’s is one will, his will is a roadmap for the nation, as comprised of individual actors, to acknowledge and address racial harms and for racial reconciliation. The Article concludes with a call to disrupt the dangerous racial rhetoric that renders our country brittle and prone to shattering, threatening America with irreparable brokenness.
Canadian actor Douglas Rain, one of the co-founders of the Stratford Festival, passed away of natural causes at the age of 90 at St. Marys Memorial Hospital, just outside of Stratford, Ontario. He spent 32 years playing several Shakespearean characters on stage at the festival until 1998. His roles included Claudio in "Measure for Measure" in 1954, Malvolio in "Twelfth Night" in 1957, Edgar in "King Lear" in 1964 and Prince Hal in "Henry IV, Part 1" in 1958. Rain is survived by his two sons, David and Adam, daughter Emma, granddaughter, Salima, and a daughter-in-law, Asira.
It was the aloof and frightening voice of the artificially intelligent HAL 9000 in 1968's film 2001: A Space Odyssey that brought Rain into the public sphere. HAL is the onboard master computer on the spaceship Discovery 1 but goes rogue, at one pointing balking to an astronaut tells it to open the pod doors, "I'm sorry, Dave. I'm afraid I can't do that. This mission is too important for me to allow you to jeopardize it." When the spaceship occupants manage to shut the computer down, HAL sings Daisy Bell and utters, "I'm afraid, Dave. Dave, my mind is going. I can feel it."
The American Film Institute named HAL the 13th greatest movie villain of all time, joining a list that includes Hannibal Lecter and Darth Vader.
See Mark Kennedy, Actor Douglas Rain, Who Supplied HAL's Voice, Dies at 90, ABC News, November 12, 2018.
If you have minor children, selecting the right person to be the guardian for them in the tragic instance that you die or become incapacitated is one of the most important planning decisions that you have to make. Failing to do so could put the future of your precious offspring in the hands of an impersonal court system.
Tackling the responsibility of another person's child or children is not one that should be taken lightly, and thus should be accepted willingly and with a complete understanding of the duty. A proper guardian should be reliable and stable, with sound judgment and values that are similar to your own so the person can be an appropriate surrogate parent. Though being a family member is often seen as a necessary factor in being a guardian, it is not required. But having an established and caring relation with the child or children can be considered immensely valuable.
Children can be inherently expensive, from sports to education to medical bills. Asking a person to be the guardian for your children is also asking them to be responsible for their financial obligations as well. Therefore, it is important to work with a knowledgeable estate planner who can help arrange financial support not only directly for your child, but also if necessary, for the personal costs that the guardian incurs in taking care of your children. Depending on the circumstances and the people or person you choose, the trustee for your children's trust can be the same person or different from the person who choose to be the children's guardian.
See Cheryl E. Hader & Jonathan Kane, How to Choose the Right Guardian, Kramer Levin, November 8, 2018.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
Wednesday, November 14, 2018
Article on Non-Grant of ‘Letters of Administration’ Where ‘Suit for Partition’ is the Efficacious Remedy
Shivam Goel recently published an Article entitled, Non-Grant of ‘Letters of Administration’ Where ‘Suit for Partition’ is the Efficacious Remedy, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
The scope of an administration suit is to collect the assets of the deceased to pay off the debts and other charges and to find out what is the residue of the estate available for distribution amongst the heirs of the deceased. A suit for partition is distinct from an administration suit. Though administration of the estate may ultimately after accounts are taken also entail ‘partition’, but where it is found that there is no need for administration and what is in effect sought is partition only, the court is entitled in exercise of discretion under Section 298 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘ISA’) to refuse the grant of Letters of Administration and to relegate the parties to the remedy of partition.