Wills, Trusts & Estates Prof Blog

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

Monday, November 19, 2018

CLE on Meeting the New Challenges of Cyber Insurance Coverage: Think You're Covered? Think Again

CLEThe American Law Institute is holding a webcast entitled, Meeting the New Challenges of Cyber Insurance Coverage: Think You're Covered? Think Again, on Thursday, December 13, 2018 from 1:00 p.m. - 2:30 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend

The increasing severity of cyber threats to clients and firms alike has necessitated the evolution of cyber insurance policies to meet the variety of challenges to coverage posed by breaches and data loss. However, the lack of uniformity and inadequacy of terms in these policies has presented an added level of confusion and, more often than not, escalated the intensity of the litigation over coverage disputes. Given the required complexity of coverage, it is no longer good enough to have an insurance policy in place that was signed years ago. Today’s cyber risk environment demands that cyber policies be regularly reviewed and revised to avoid claims being denied due to coverage gaps, vague wording, and outdated provisions.  

What You Will Learn

Our panel of experts will address emerging cyber threats and highlight new areas of cyber insurance coverage that meet the latest challenges and give direction to help ensure that claims will be covered by the policy. Join us for this 90-minute video webcast to understand current risks associated with cybersecurity, including cyberterrorism, and how to craft cyber insurance policies to best mitigate the impact of data, reputational, and financial loss. Topics include:

How to identify gaps present in traditional insurance programs

How to update current policies to meet the new challenges of cyber risk

Negotiating terms and conditions for your cyber insurance programs

Types of cyber policies: Where coverage begins and ends

Do policies cover incidents of cyber terrorism?

Recent litigation and legislation involving security and breaches

Determining the potential claims sources that are giving rise to cyber-related losses

  All registrants will receive a set of downloadable course materials to accompany the program.  

Who Should Attend

Attorneys counseling policyholders across a variety of industries or insurance carriers, in-house counsel, and risk managers as they face increasingly complex data security concerns.


November 19, 2018 in Conferences & CLE, Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

IRS Announces Higher 2019 Estate and Gift Tax Limits

CashThe Internal Revenue Service announced today the official estate and gift tax limits for 2019, with the estate and gift tax exemption increased to $11.4 million per individual and the annual gift exclusion remaining the same at $15,000. Even if you are not ultra rich, the increase is a reminder that every person needs an appropriate estate plan.

There were only an estimated 1,890 taxable estates in 2018 after the Tax Cuts and Jobs Acts issued in by President Trump. This is a large increase from just a few years ago in 2013 when there was 4,687 taxable estates when the exemption was $5 million. The proponents of the increase are pushing for the increases to be permanent, while at the moment they are set to expire in 2025.

Palmer Schoening of the anti-death tax Family Business Coalition says that the ultimate goal would be a complete repeal of the estate tax, but permanency of the increases would make the transition easier. In the meantime, the wealthy will continue to plan around the estate tax, whittling down their estates with lifetime wealth transfer strategies to keep below the new threshold and avoid the 40% federal estate tax.

See Ashlea Ebeling, IRS Announces Higher 2019 Estate and Gift Tax Limits, Forbes, November 15, 2018.

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

November 19, 2018 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0)

Article on Public Wealth Maximization: A New Framework for Fiduciary Duties in Public Funds

FiduciaryPaul Rose recently published an entitled, Article on Public Wealth Maximization: A New Framework for Fiduciary Duties in Public Funds, 2018 U. Ill. L. Rev. 891-923. Provided below is an abstract of the Article.

This Article challenges the standard doctrine that public pension funds should be managed solely for the benefit of plan participants and their beneficiaries. Instead, economic logic suggests that public pension fund trustees owe their duties to the public collectively. This analysis is driven by the fact that, in practice, individual pension fund claimants function more like senior creditors than the residual claimants that are the typical recipients of fiduciary duties, and that the public—and current and future taxpayers specifically—are the true residual risk bearers for public pension funds.

This reframing of fiduciary duties in public funds has dramatic consequences for the investment policies of the funds. Most importantly, a shift in the locus of fiduciary duties to public wealth maximization will require fund managers to more fully consider the externalities accompanying their investments, which should serve to help them fully and accurately price their investments. Private investors might ignore certain negative effects, such as uncompensated harms from pollution or depleted natural resources, because the government absorbs the costs of such externalities. Indeed, a strict fiduciary duty to act in the interests of the fund would obligate a private investor to ignore such externalities, so long as they do not negatively affect the returns of the fund’s investments. The government—and by extension, the public who funds the government—that absorbs the cost of these externalities, however, should view investments differently. They should view it with an eye to minimizing negative externalities, particularly those that are significantly more expensive to remediate than to prevent. Similarly, a strict reading of fiduciary duty would suggest that funds should ignore positive externalities from investments that benefit society but not the plan participants. A focus on public wealth maximization would suggest that positive externalities should also be taken into account in investment decisions, which might, as a consequence, result in more investment in sustainable enterprises and long-term projects.

November 19, 2018 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, November 18, 2018

Stan Lee’s Tangled Web of Estate Planning ­and How to Avoid it in Your Own Life

StanStan 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 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 of 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.

November 18, 2018 in Elder Law, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Seven Estate Planning Considerations for Blended Families

AarpBlended 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:

  1. 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.
  2. If spouses want to sign a joint trust then the trust should be drafted so that it becomes irrevocable upon the first death.
  3. 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.
  4. Discuss funeral arrangements and plans with family members proactively, and sooner rather than later.
  5. Consider naming your spouse and one of your children as co-attorneys in fact.
  6. Communicate, communicate, communicate! Make sure everyone is on the same page, knows your wishes, and does not feel betrayed.
  7. 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.

November 18, 2018 in Elder Law, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Saturday, November 17, 2018

Article on Preparing to Age in Place: The Role of Medicaid Waivers in Elder Abuse Prevention

AgeivismTara 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.

November 17, 2018 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Friday, November 16, 2018

Article on The 2017 Tax Act's Potential on Bank Safety and Capitalization

Tax actMark 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.

November 16, 2018 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Mom's Shocking Diary Secret Triggers Legal Challenge by Daughter

FranceParents 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.  

November 16, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (2)

Japanese Use Robot Animals to Comfort Elderly

NatgeoPhoto 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.  


November 16, 2018 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)

Thursday, November 15, 2018

Article on The Rhetoric of Race, Redemption, and Will Contests: Inheritance as Reparations in John Grisham's Sycamore Row

SycamoreTeri 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.

November 15, 2018 in Articles, Books - Fiction, Estate Planning - Generally, Wills | Permalink | Comments (0)