Tuesday, January 18, 2022
Elizabeth Carter offers an insightful presentation about the pros and cons of adultery provisions and their enforceability.
You can access the Podcast here.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, University of Virginia School of Law) for bringing this Podcast to my attention.
Monday, January 17, 2022
Gerry W. Beyer recently published an article entitled, Electronic Wills: The Changing Future of the Estate Practice, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
As of September 15, 2021, four states have enacted the Uniform Electronic Wills Act: Colorado (effective July 2, 2021), North Dakota (effective August 1, 2021), Utah (effective August 31, 2020), and Washington (effective January 1, 2022). Six states have enacted other electronic will statutes: Nevada (effective July 1, 2017), Indiana (effective July 1, 2018), Arizona (effective July 1, 2019), Florida (effective July 1, 2020), Illinois (effective July 26, 2021), and Maryland (effective October 1, 2021).
This article discusses the development of electronic wills, the Uniform Electronic Wills Act and the e-will statutes of the six non-uniform states, and the situations where e-wills may be a valuable part of the estate planner's toolbox.
The article also contains the complete text of all state statutes and detailed comparison charts which set forth the key features of each state's e-will statutes.
Sunday, January 16, 2022
After a six-year long legal fight over the value of Prince's estate, the parties have agreed on its final value at $156.4 million. Originally, the administrator of Prince's estate, Comerica Bank & Trust appraised it for $82.3 million, while the IRS put the value at $163.2 million.
Prince died at the age of 57 of a fentanyl overdose in April 2016. The artist died intestate, without a will. Prince's heirs consisted of six siblings, two of which have died since Prince's passing, and two others are in their 80s.
Prince's estate will be administered evenly between Primary Wave, a New York music company, and the three oldest of the music icon's six heirs or their families. If the parties agree, estate administration could begin as early as February.
See Ken Martin, Prince estate value set at $156.4M years after his death, Fox Business, January 15, 2021.
Saturday, January 15, 2022
Although settlement agreements can be beneficial, they do not come without risk. "In Austin Trust Co. v. Houren an agreement contained language in a release that barred the parties from bringing future claims."
Below is a brief background on the case:
Following the death of their father, the beneficiaries of an estate realized that their distributions would be delayed until a federal estate tax return had been filed. Seeking to speed up the distribution process, the beneficiaries entered into a family settlement agreement (“FSA”) with all interested parties. The FSA was negotiated by the parties, who acknowledged that they were either represented by counsel, or consciously chose not to be represented by counsel.
The FSA contained a release that, among other things, released all claims for breach of fiduciary duty. The exact language in the agreement releases read as follows: “any and all liability arising from any and all Claims,” including “claims of any form of sole contributory, concurrent, gross, or other negligence, undue influence, duress, breach of fiduciary duty, or other misconduct” and defined “covered activities” to include “(1) the formation, operation, management, or administration of the Estate,…or the Trusts, (2) the distribution of any property or asset of or by…the Estate,…or the Trusts, (3) any actions taken (or not taken) in reliance upon this Agreement or the facts listed in Article I,” (4) “any Claims related to, based upon, or made evident in the Disclosures,” and (5) “any Claims related to, based upon, or made evident in the facts set forth in Article I.”
The FSA was signed on June 10, 2015. In early 2016, the executor of the estate filed the federal estate tax return, which did not list an alleged $37 million debt as either an asset or a liability. Austin Trust sent a demand letter seeking repayment of the alleged debt, which the executor rejected. Austin Trust claimed a breach of fiduciary duty, and the executor asserted that this duty had been released. The trial court agreed, and an appeal followed.
In Austin Co., the court had to determine whether the release agreement was valid before it addressed whether the executor breached a fiduciary duty. The court listed six factors that it considered in deciding whether to affirm the settlement agreement. The court determined that the release was valid and did not have to decide whether a fiduciary duty was breached.
Though settlement agreements can be beneficial, parties should exercise great caution and diligence before execution a settlement agreement.
See Releases and Family Settlement Agreements in Trust & Estate Litigation, Freeman Law, 2021.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, January 14, 2022
Laura Padilla recently published an article entitled, Flesh of My Flesh but Not My Heir: Unintended Disinheritance , Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
This article explores issues around property rights, biology and technology.
Thursday, January 13, 2022
Marion Shamallah recently published an article entitled, Emerging Trends in the Law of Succession in Kenya, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
Family has been the basic unit of the society as espoused under article 45 of the constitution of Kenya. On the other hand the law of succession is greatly shaped by the laws governing family including marriage and children laws. As such with changes in the family structures and lass the law of succession has greatly shifted towards a positive direction to incorporate children born out of wedlock and cohabiting partners.
Wednesday, January 12, 2022
Article: Mandatory Share in Inheritance as An Institution for the Protection of the Rights of Family Members: The Experience of Russia and Foreign Countries
Aleksandra Fokina recently published an article entitled, Mandatory Share in Inheritance as An Institution for the Protection of the Rights of Family Members: The Experience of Russia and Foreign Countries, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
This study presents a comparative legal analysis of the institution of a mandatory share in inheritance in the law of Russia and some foreign countries according to three comparison criteria: the concept and legal definition; the size of the mandatory share and mandatory heirs; features of calculating the size of the mandatory share.
The relevance of the chosen topic is due to the fact that the similarities and differences established as a result of comparative legal analysis of the norms of inheritance law of Russia and foreign states of the legal regulation of the institution of mandatory share in inheritance allow us to re-evaluate the current regulation of mandatory share in inheritance in Russian law and use the experience of foreign countries for further improvement of Russian legislation on inheritance.
As a result of the conducted research, significant differences were established in the regulatory and legal regulation of the institution of a mandatory share in the inheritance, which can be used as part of the reform of the inheritance law of Russia.
Tuesday, January 11, 2022
This week, the American College of Trust and Estate Counsel, ACTEC, shared a new podcast for T&E professionals and a video resource for the general public and clients.
ACTEC Trust and Estate Talk (podcast series for professionals)
Spousal Support Provisions in Premarital Agreements - A law professor explains spousal support in premarital agreements and offers examples, especially helpful in states that litigate fault in divorce and tie it to alimony.
ACTEC Family Estate Planning Guide (video resource series clients)
Understanding Life Insurance Policy Ownership - Estate planning experts offer an overview of life insurance policy ownership, insurance options, an explanation of irrevocable life insurance trust and more in this video.
Kate Emery, the founder of a successful digital-consulting firm was considering retirement and was weighing options for her company, The Walker Group. At the time, the Walker Group had nearly fifty employees and was bringing in around ten million dollars. If Emery were to sell the Company, she may have easily made a hundred million—or more.
However, after a meaningful conversation, Emery decided to take the Walker Group in a new direction as she did not want to sell her company and jeopardize her lifework. Emery then revamped her already successful company by installing a new, yet unusual enterprise model. The Company began sharing a third of its distributed profits with employees and donating a third to nonprofits in Farmington, Connecticut where the Company was established.
In 2018, Emery paired with the Purpose Foundation after she read about its new kind of corporate ownership structure. The foundation uses what is known as a perpetual-purpose trust which exists to fulfill some purpose, as opposed to providing for a human beneficiary.
In a perpetual-purpose trust, the trust becomes the legal owner of the business, and the business owner now has "a fiduciary duty to fulfill its purposes, which might include sharing profits with workers, protecting the environment, and hiring the formerly incarcerated." These trusts can be used to prevent future owners from "discarding pro-social policies in favor of higher profits."
With this type of corporate structure, companies can keep their goodwill intact—indefinitely.
See Nick Romeo, Can Companies Force Themselves to Do Good?, The New Yorker, January 10, 2022.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Monday, January 10, 2022
Samuel L. Bray and Paul B. Miller recently published an article entitled, Getting Into Equity , Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
For two centuries, common lawyers have frequently talked about a “cause of action.” But “cause of action” is not an organizing principle for equity. This Article shows how a plaintiff gets into equity, and it shows equity is shaped by the interplay of its remedial, procedural, and substantive law. Equity is adjectival, related to law rather than the other way around. Remedies, not rights, are what give it power. And for getting into equity, it is the grievance that is central. To insist on an equitable cause of action is to work a fundamental change in how a plaintiff gets into equity.