Thursday, February 20, 2020
Glen "Glennie" Davis, 88, of Green Meadow, Minnesota received quite a special send-off at his funeral this week. Davis was a farmer, but he had also been a school bus driver for 55 years, from 1949 to 2005. After retiring from the school district with a proudly held accident-free record, he continued to volunteer to drive for Meals-on-Wheels.
Jim Hindt, the owner of Hindt Funeral Home, gifted the man a school bus-themed casket. “Everybody loved him,” Davis' daughter, Lisa Hodge of Rochester said, adding that, "He was a big supporter of the school and the football team."
See Caleb Parke, Longtime Minnesota School Bus Driver Gets Special Casket, Fox News, February 19, 2020.
The race for the next presidential candidate on the Democratic ticket is starting to heat up, and the main talking points currently are climate change, infrastructure, and health insurance. But there are two points that matter to high wealth Americans: (1) lowering exemptions and raising rates for the estate and gift taxes, and (2) ending the valuation discount for closely held family businesses.
Under the Tax Cuts and Jobs Act (TCJA) of 2017, the current exemption amount for the federal estate tax was raised to $11.4 million for an individual and $23 million for a couple. Anything above that threshold is taxed at 40%. That exemption amount will remain in effect until 2025 or unless it is lowered by other legislation. Many progressive candidates have it stated in their campaign that they would like to lower that threshold and possibly even increase the tax rate above the exemption amount. If a Democrat does win the office of president, it is highly likely that these may occur. Chris Pegg, senior director of wealth planning for Wells Fargo Private Bank, says that "we’ve never had exemptions this large, and we’ve never had candidates talking about wealth redistribution. If you look at some of the dials that are most likely to be turned, I think the estate tax is one of them.”
Shortly after taking office, President Trump issued an executive order that told the Treasury Department to withdraw the regulations placed by President Obama that disallowed discounts for closely held family businesses. “Those regulations were shelved; they weren’t unwritten,” Pegg said. Though many progressive candidates are mentioning disallowing the discounts, the move would affect all family owned small businesses, not just those owned by the "1%," says Bill Smith, managing director in the national tax office of at CBIZ MHM, an accounting firm.
See Paul Sullivan, 2 Tax Strategies to Consider Ahead of the 2020 Election, New York Times, February 14, 2020.
Special thanks to Matthew Bogin, (Esq., Bogin Law), Joel C. Dobris (Professor of Law, UC Davis School of Law), and Mark J. Bade (CPA, GCMA, St. Louis, Missouri) for bringing this article to my attention.
Wednesday, February 19, 2020
Article on Scottish Law on Intestacy and Probate: Borrowing from the United States and Canada to Bring Scottish Law out of Flux
Zia Akhtar recently published an Article entitled, Scottish Law on Intestacy and Probate: Borrowing from the United States and Canada to Bring Scottish Law out of Flux, Est. Plan. & Cmty. Prop. L.J., Vol. 12 Book 1 (Fall 2019). Provided below is the introduction to the Article.
Most nations that developed a legal system under the English Common Law have adopted laws for wills and succession by intestacy that suit the needs of their nationals. They adapt laws when necessary, like when the dynamics of a typical family change, which has been prominent issue in the modern era. The legal framework governing wills has been established in the United Kingdom, but in Scotland there is an ongoing debate on developing laws of intestacy. Scottish legislators are reviewing potential legal schema to adopt.
This article will consider the rules of intestacy and the grounds upon which legal reform is being proposed to amend the law in Scotland. The intention is to compare the benefits of adopting legal provisions from other jurisdictions in common law countries that can serve as a framework for possible legislation. This article will evaluate the jurisdictions that can serve as models for adoption, defining their laws, and evaluating the community property bases for the distribution of property.
First, the laws in England and Wales will be compared to Scottish Law, showing the relative issues Scottish nationals may face. Instead of simply adopting English laws, this article will explore the possibility of adopting succession legal approaches from North America, namely the community property system in some if the United States and the threshold approach from British Columbia, Canada.
Next, this article will address how Scotland could address conflicts of law when applying successions laws. It will show that there are current methods available to Scottish nationals through the already-existing Brussels IV law, as part of the European Union, even though the United Kingdom has opted out. It will then show how the United States and Canada have addressed their own conflict of law issues, and how Scotland could consider borrowing from those approaches.
Tuesday, February 18, 2020
Article on Intellectual Property and Domestic Relations: Issues to Consider When There is an Artist, Author, Inventor, or Celebrity in the House
Ann Bartlow recently published an Article entitled, Intellectual Property and Domestic Relations: Issues to Consider When There is an Artist, Author, Inventor, or Celebrity in the House, Wills, Trusts & Estates Law eJournal (2020). Provided below is an abstract of the Article.
This article articulates some of the special issues raised by intellectual property in the context of family-law-oriented concerns. It also necessarily explores the characteristics and properties of personal intellectual property in a broader sense. What follows is an overview of the special issues and concerns intellectual property might present in the context of divorce, estate planning, or probate. Please keep one important caveat in mind: Intellectual property has become a very dynamic area of the law. Governing federal patent, copyright, and trademark statutes are extensively amended with astounding frequency. Right of publicity and trade secret law are also constantly evolving. Legislative proposals that would significantly alter certain aspects of intellectual property law are constantly proposed and may be adopted by Congress (or by individual states) at any time. In addition, courts play a large role in delineating the scope of intellectual property protections, and the judiciary, through its role as adjudicator of intellectual property disputes, has (and will continue to have) a profound effect on the continually shifting landscape of rights, obligations, and privileges associated with intellectual property.
Monday, February 17, 2020
Richard and Tracey Cox of Georgetown, Kentucky wed in 1986 and had 4 children - 3 boys and a girl. In 2009, Richard was diagnosed with Stage 4 throat cancer. Before he passed away in 2012, the husband and wife renewed their vows. But Richard's love and affection for his wife even extends beyond the grave.
Tracey's birthday is February 13th and the nationally recognized day of love is the next day. So Richard made arrangements that she would receive flowers every year on that day with a personalized note from him, reading "Happy Birthday and Valentine's Day. Love Rich."
Their son Nicholas says that his father taught him about true love. "We need to continue to instill it in our young ones. My father did this, this is probably my greatest gift he taught me."
See Melissa Ratliff, This Husband Made Sure his Wife Would get Flowers on Valentine's Day — Even Long After his Death, Kgun9.com, February 14, 2020.
Uniform Trust Code Analyzed in Fall 2019 Issue of the American College of Trust and Estate Counsel Law Journal
The entire Fall 2019 issue of the ACTEC Law Journal is devoted to reviewing the Uniform Trust Code with thirteen short articles now that twenty years have elapsed since its original approval by the National Conference of Commissioners on Uniform State Laws.
- Forward: Twenty Years of the Uniform Trust Code, Jeffrey A. Cooper
- Just Say No: Reasons States have not Adopted the UTC, Robert Barton
- Alternative Dispute Resolution and the Uniform Trust Code - Colorado's Approach, Darla L. Daniel
- The Prudent Investor Rule Past, Present and Future: A View from Illinois, Jane G. Ditelberg
- Who is a Qualified Beneficiary?, John P. Edgar
- The Dark Side of Codification, Thomas P. Gallanis
- The Need for a New Type of Purpose Trust, the Stewardship Trust, Susan N. Gary
- Trustee Liability for Breach of Trust - Loss or Profit, or Loss and Profit?, Kenneth F. Joyce
- UTC's Duty to Inform and Report at 20 - How Mandatory is Transparency?, Mel M. Justak & Anne-Marie Rhodes
- A Powerful Tool - Modification or Termination of a Noncharitable Irrevocable Trust by Consent Under Section 411(A) of the Uniform Trust Code, Maureen L. O'Leary
- Beyond UTC Section 808 and the Uniform Direct Trust Act, Wayne E. Reames
- Purpose Trust Cy Pres, Thomas E. Simmons
- Settlor-Authorized Fiduciary Indifference to Trust Purposes and the Interest of Beneficiaries, James P. Spica
Cameron Huddleston, the author of Mom and Dad, We Need to Talk, says that the conversation with your parents about how they are going to financially survive after retiring can happen organically, even with premeditation. Many parents can be uncomfortable with the shift in the care dynamic - the child is placing themselves in the position to care for the parent. Amanda Clayman, a financial therapist and financial wellness advocate for Prudential, advises that the child can tie the conversation to their own life as a way to maintain the original roles. The parent can explain their own choices as an example to their children, and both sides can offer insight to each other.
Carol Levine, a senior fellow at the United Hospital Fund in New York, says that it is best not to bring up these difficult subjects during the holidays. Timing if important, of course, and adult children can get together before broaching the subject with their parents as a unit.
A simple guess of combining Social Security and a 401(k) may not be enough. Online retirement calculators such as AARP’s for the Social Security benefits and NerdWallet’s or T. Rowe Price’s can provide a better start, but eventually any person or couple will need to consult with a financial planner. Another tough subject to attack: whether the parent would want to move in with the child if the time should come that their independence becomes limited. Multi-generational homes are not as common in America as they are in other countries, but many parents may prefer it over living in a long-term care facility among strangers.
See Erin Lowry, Dear Mom and Dad: Are Your Finances Ready for Retirement?, New York Times, February 13, 2020.
Special thanks to Matthew Bogin, (Esq., Bogin Law) and Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Sunday, February 16, 2020
As the iconic baby boomer generation reaches upwards of 74 years of age, more and more individual will require long-term care. This can range from residing in a nursing home, staying at their house and being visited regularly by provider or families, or moving into an assisted living facility. With the increase in assisted living residences across the country, it is important to understand how much information about these facilities are provided to consumers.
Unlike nursing homes which are federally regulated, each state is responsible for setting licensing requirements and quality standards for assisted living residences within their jurisdiction. Each state is required to provide free data of licensed facilities to the public. Private search databases may not be objective, but instead utilized for marketing purposes. The websites of these assisted living facilities may not easily provide critical information to the public, such as reports of state-required quality inspections, listing of accepted insurance plans, the availability of staff personnel, and even the overall cost of the care.
More than two-thirds of states did not say whether their residences offered memory care, and the increase in elderly patients requiring care due to Alzheimer's and dementia is dramatically increasing. But not all websites had only negative reviews: California listed inspection updates, Florida itemized activities offered in each residence, and Arizona posted plain-language summaries of inspection results. Overall, more is needed so that consumers can make the appropriate decisions for their individual situations, but improving the information on the websites might require new or revised state regulations.
See Lindsay J. Peterson & Kathryn Hyer, Incomplete and Inadequate: Information Lacking for Seniors Looking for Assisted Living, The Conversation, February 14, 2020.
Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.
Saturday, February 15, 2020
On November 18th of last year, 74-year-old Sandy Hawkins walked into a Wells Fargo in Florida and demanded that the teller give him $1,100. When the teller counted out $2,000, Hawkins scolded him and said it was too much. He left with the $1,100, but while walking the bag became ensnared in a thorny bush and ripped open. Hawkins kept walking and left the loot behind. When police approached him the next day, he went willingly, even giving them the note he had forgotten to hand over to the teller, reading, "Give me $1,100. Now. No Alarms. Hope to get caught."
What caused this man that closely resembled Santa Claus with no prior criminal record to suddenly rob a bank? Simple - he was heartbroken, so bad that he no longer knew how to cry out for help. He married the love of his life, Linda, at the late age of 52, but said it was the best day of his life. But just a few months after their 22nd wedding anniversary in September of 2018, Linda had a pain in her side. Erring on the side of caution, she went to the emergency room on a Tuesday and was admitted for testing. The next day, Hawkins was told she had blood cancer and due to it attacking her major organs, she had maybe 72 hours to live. On Friday she died.
Bank robbers face up to 15 years, which to 74-year-old Hawkins, who has prostate cancer that he refuses to treat, would be a life sentence. Instead, Assistant State Attorney Samuel Meshulam told the judge, Jeffrey Gillen, that he took all relevant factors into consideration when working out a deal with the public defender's office. Hawkins agreed to reside and abide by all the rules in a transitional housing facility, the Lord's Place, for 12 months. Gillen said it was with happiness that he was signing off on the deal.
See Eileen Kelley, Bank Robber’s Cry for Help was Heard. The 74-Year-Old Widower Won’t go to Prison, Sun-Sentinel, February 14, 2020; see also Eileen Kelley, Heartbroken 74-Year-Old Widower Wanted Help. So he Robbed a Bank, Sun-Sentinel, December 20, 2019.
Friday, February 14, 2020
Article on Avoiding Prison Bars, But Gaining a Bar to Inheritance: A Statutory Solution for the Insane Slayer Through a Comparative Approach
Brittany Brewer recently published an Article entitled, Avoiding Prison Bars, But Gaining a Bar to Inheritance: A Statutory Solution for the Insane Slayer Through a Comparative Approach, Wills, Trusts, & Estates Law eJournal (2020).
If a solution cannot be found within states, it’s time to look outside our own borders. This Article does just that. With murder amongst family members slowly becoming a frequent phenomenon, comes the burden of determining inheritance. This burden grows exponentially, however, when the slayer is later found not guilty by reason of insanity as a result of a mental illness at the time of the killing. States have grappled with their treatment of the insane slayer in different ways, either by letting them inherit due to their lack of intent, or by refusing to let them inherit under public policy justifications. By arguing that the insane slayer should be able to inherit due to their lack of intent at the time of the killing and the uncontrollable genetic inheritance of their mental illness, this Article is the first to present a solution for the insane slayer through a comparative approach. Specifically, by adopting statutory language from the Forfeiture Act of 1995 No. 65 in New South Wales, Australia. This piece of legislation weighs the conduct of the offender, the conduct of the deceased, the effect of the rule on the defendant and other persons, and any other matters the court finds material. As a result, this Act exudes the discretion, subjectivity, and fairness that the traditional American slayer statute lacks. By consolidating language from the Forfeiture Act of 1995 and traditional American slayer statutes, the statutory solution proposed in this Article has the potential to protect the insane slayer in ways other laws have failed to do.