Wills, Trusts & Estates Prof Blog

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

Tuesday, June 18, 2019

Could Trees Be the New Gravestones?

RedwoodSandy Gibson, the chief executive of Better Place Forests out of Silicon Valley, believes that the gravestone is the most obvious target for innovation in the funeral services industry. “We’re trying to redesign the entire end-of-life experience.” The premise: gone are traditional cemeteries, and coming in are forests that will never be developed. Instead of being buried, the person's cremated remains are mixed with fertilizers and used on a specific tree. 

People are enthralled by the environmental friendly idea, with thousands of trees already sold to still-living customers, according to Gibson, raising $12 million in venture capital. Other than the topic of dead bodies coming up often, the office is a normal San Francisco start-up, with around 45 people bustling around and frequenting the roof deck with a view of the water.

For an incredibly long-living and extremely desirable redwood tree, it could cost a customer upwards of $30,000. A more economical choice would be to buy into a community tree, starting at $970 plus cremation costs. Because it is a forest with looser rules that graveyards, pet cremains are allowed as well. And though it is a fairly low-tech operation of mixing cremains with water and dirt, no San Francisco start-up would be complete without some high-tech options. For an extra fee, customers can have a digital memorial video made. Visitors will be able to scan a placard and watch a 12-minute digital portrait of the deceased talking straight to camera about his or her life, and the customer can choose to either allow anyone to watch or just certain people.

See Nellie Bowles, Could Trees Be the New Gravestones?, New York Times, June 12, 2019.

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

June 18, 2019 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Monday, June 17, 2019

Article on ‘Sham Trusts’ and Ascertaining Intentions to Create A Trust

TrustsYing Khai Liew published an Article entitled, ‘Sham Trusts’ and Ascertaining Intentions to Create A Trust, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

According to received wisdom, ‘sham trusts’ is a doctrine which provides an exception to the normal objective process of ascertaining intentions to create a trust by permitting courts to give effect to subjective intentions as the ‘true’ intention. This article makes three points. First, that approach does not properly reflect how courts deal with sham trusts: courts are not concerned with ascertaining subjective intentions when dealing with ‘sham trusts’. Second, ‘sham trust’ cases are but specific factual applications of a general approach, namely that an objective intention to create a trust is ascertained from any admissible evidence accepted by the court as being relevant to its inquiry. Thus, there is no separate ‘sham trust’ doctrine, and therefore no special requirements to be fulfilled (such as an intention to deceive) for legal effect to be withheld from a trust instrument. Third, the general approach can be particularised in the form of a flexible framework, which explains how courts deal with the admissible evidence. While any relevant evidence is admissible, certain types of evidence are given more weight than others.


June 17, 2019 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Gloria Vanderbilt Dies at 95; Built a Fashion Empire

GloriaGloria Vanderbilt, society heiress that revamped fashion merchandising and whose life was full of tabloid scandal, has passed away at the age of 95. Her death was confirmed by her son, Anderson Cooper. 

Gloria was the great-great-granddaughter of the 19th-century railroad and steamship magnate Commodore Cornelius Vanderbilt, and she used her illustrious last name to sell fashion items during the 1970s. Even her early life was smeared with infamy, with her father dying when she was a baby and eventually her mother and aunt pitting against each other in a sensational child-custody case that would leave the 10-year-old traumatized. Gloria would be followed by the American gossip seekers that devoured the stories of her affairs the Hollywood royalty, such as Errol Flynn, Frank Sinatra, Gene Kelly, Howard Hughes and Marlon Brando. It was rumored that Holly Golightly, the heroine of Breakfast at Tiffany's, was modeled after Gloria.

She divorced three men, was widowed by one man, and had four sons. Her son, Carson Carter, committed suicide by jumping from his Manhattan penthouse terrace, witnessed by his mother whom had pleaded with him.

Gloria was born into the most elite inner circle of American families, and inherited her own trust fund infancy, though she could not touch it until she was 21. But with Gloria Vanderbilt jeans, she was earning her own money (through exploiting the family name, though) so that she was no longer spending inherited funds. But with competition from other brands, her brand faded but her lavish spending did not. in 1995, she was hit with federal and state liens for back taxes totaling $2.7 million, and had to sell her East Side townhouse and her home in Southampton to satisfy the judgments. She denied being broke, but in her later memoir critics found parallels between the privileged child and the Broadway character of Little Orphan Annie. Though Little Gloria was born rich, as a child she was poor in love from her parents.

See Robert D. McFadden, Gloria Vanderbilt Dies at 95; Built a Fashion Empire, New York Times, June 17, 2019.

June 17, 2019 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

The Elderly are Getting Complex Surgeries. Often it Doesn’t End Well.

HospitalAs the country's population ages and medical advances increase, more and more citizens 65 and older are deciding to undergo surgical procedures that were once deemed too dangers for their age group. But just because these operations are allowed does not mean that the outcome is always ideal; one study reviewing major, nonemergency surgery in 165,600 adults over 65 found that mortality and complications increased with age and hospital stays often lengthened for these patients.

The reasons for the health risks should come as no surprise: aside from whatever ailment the surgery is meant to resolve, older patients usually have other chronic health issues that require medications and medical care. Dr. Ko and Dr. Ronnie Rosenthal of the Yale University School of Medicine, lead the American College of Surgeon's Coalition for Quality in Geriatric Surgery. They have developed a new geriatric surgery verification program, to be unveiled next month at a conference in Washington, D.C., after four years of planning and research, which will consist of 30 standards that hospitals should meet to improve results for older patients.

The college has also devised similar quality programs for trauma, cancer and pediatric surgery. “People understand that children are different from adults,” Dr. Rosenthal said. “It’s taken a surprisingly long time to come around to the realization that older adults are also different.” Some of the standards deal with medications regimes that do not rely heavily on opioids, geriatric friendly rooms, and other infrastructure need, while other requirements for the designation deal with communication with the patients. The goals of an 80-year-old patient may be very different than that of a 50-year old, with fears of nursing homes and a lower quality of life for several years hanging over their heads. 

See Paula Span, The Elderly are Getting Complex Surgeries. Often it Doesn’t End Well, New York Times, June 7, 2019.

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

June 17, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Sunday, June 16, 2019

The Best Father’s Day Gift, a Father Can Give

FathersdayOn the day that is meant to celebrate fathers and the role they play in their children's lives, they usually receive the typical gifts: a stand-out tie, a shiny new grill, maybe a nice set of tools. But what about the ultimate gift that fathers can give to their children and other loved ones?

While a ballgame sounds great on the penultimate holiday for fatherhood, any real dad will tell you that the true reward is having a sense of accomplishment, in knowing you left everything on the field when providing for your family. An effective estate plan with all the appropriate and necessary documents will pass on your legacy and keeping your loved ones safe and protected even after you have passed on.

A health care proxy allows you to designate a person to make the difficult decisions if you become seriously ill or incapacitated. A living will details the end-of-life instructions to be carried out by a medical facility as it pertains to life sustaining care. Having a durable power of attorney can be established for other decisions in a time of need, such as financial decisions that are need when you cannot. Of course, no estate plan is complete with a disposition of property, so either a living trust or a will is necessary to transfer your assets as you desire.

See The Best Father’s Day Gift, a Father Can Give, OC Estate Lawyers, June 13, 2019.

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


June 16, 2019 in Current Affairs, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Games, Trusts, Wills | Permalink | Comments (0)

CLE on Probate and Trust Litigation

CLEThe National Business institute is holding a conference entitled, Probate and Trust Litigation, on Friday, July 12, 2019 from 9:00 AM - 4:30 PM at the Holiday Inn Philadelphia-Cherry Hill in Cherry Hill, New Jersey. Provided below is a description of the event.

Program Description

Real-World Insights for Both Estate Litigators and Planners

Fiduciary problems, family dynamics, creditor issues, unclear estate plans . . . disputes can arise from many areas of trusts and estates. Do you know how to prevent fights, settle them efficiently or move a case through court when litigation is unavoidable? Our seasoned faculty will provide you with practical instruction and tips on handling common controversies. From will contests to fiduciary litigation and more, don't miss this opportunity to build your skills - register today!

  • Learn how to handle will contests and trust fights, interpretation issues and reformations.
  • Uncover the mechanics of proving or disproving undue influence/lack of capacity.
  • Find out when and how to remove a fiduciary.
  • Explore how to resolve disputes with accountings - or prevent them from happening in the first place.
  • Discover effective ways to settle disputes to avoid costly and protracted litigation.
  • Get a refresher on litigation procedures and rules you need to know.
  • Define who your client is to avoid conflicts of interest and other problems.

Who Should Attend

This intermediate level seminar is designed for attorneys and paralegals.

Course Content

  • Wills and Trusts: Contesting, Interpreting, Reforming
  • Testamentary Capacity and Undue Influence in Litigation
  • Handling Claims Against Fiduciaries
  • Disputing Accountings, Distributions and Creditor Claims
  • Settlement Tips
  • Navigating Court Rules, Processes and Procedures
  • Applying Legal Ethics Rules and Guidelines

June 16, 2019 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Friday, June 14, 2019

Note on Reading the Tea leaves: Sifting Through Jicarilla and Garner to Construct a Workable Fiduciary Exception Framework for ERISA Insurers

InsuranceTed A. Hages published a Note entitled, Reading the Tea leaves: Sifting Through Jicarilla and Garner to Construct a Workable Fiduciary Exception Framework for ERISA Insurers, 80 U. Pitt. L. Rev. 409-455 (2018). Provided below is the introduction to the Note.

Mark secures a new manager-level job with a $200,000 base salary and a guaranteed bonus of $300,000 for his first full year of employment. His employer also offers a competitive benefits package, which includes a long-term disability plan. Unfortunately, after only three months on the job, Mark gets into a terrible bicycling crash, rendering him permanently disabled.

Mark informs human resources that he will be applying for disability benefits under the disability plan, but he is told that the administration of the plan has been outsourced to an insurance company. He applies for disability benefits with the insurer responsible for evaluating his eligibility for benefits under the plan and paying them if appropriate. The insurer approves Mark's claim, but deems him eligible for a monthly benefit payment based on only his $ 200,000 base salary. Feeling cheated, Mark files an appeal arguing that his benefits should be based on his total compensation of $ 500,000. The insurer denies his appeal, stating that he did not work a full year prior to the accident and any bonus paid to him would be mere goodwill by his employer.

Mark decides to sue the insurance company. During discovery, he requests to see a memo written by the insurance company's lawyer for the claims analyst that oversaw Mark's claim. The insurer, however, contends that this memo is protected by the attorney-client privilege.

What happens next, strangely enough, depends on where the suit takes place. If Mark's claim is litigated in a federal court in Pennsylvania, New Jersey, or Delaware, then Mark is out of luck. His request to compel production of the memo will be automatically rejected. But, if he happens to be on the West Coast, he will automatically prevail through a common law fiduciary exception to the attorney-client privilege. If he is somewhere in between, the result is uncertain.

This inconsistency and uncertainty in the law denotes a current circuit split in the federal courts of appeal. The Third and Ninth Circuits disagree as to whether a beneficiary of an employee benefit plan can defeat an insurer's assertion of the attorney-client privilege, where the insurer is tasked with evaluating and paying benefit claims as a third-party claims administrator. In the Ninth Circuit, beneficiaries automatically defeat the privilege pursuant to Ninth Circuit caselaw on the fiduciary exception to the attorney-client privilege, and in the Third Circuit, just the opposite. Where the fiduciary exception applies, it precludes fiduciaries who obtain legal advice in the execution of their fiduciary obligations from asserting the attorney-client privilege against their beneficiaries. No circuit beyond the Third and Ninth has yet examined this issue, leaving much uncertainty for benefit plan participants and insurer-fiduciaries across the country.

Many perspectives have been written on whether the Ninth or Third Circuit "got it right," in holding the fiduciary exception per se applicable to insurers and per se not, respectively. This Note, however, focuses not on which court came to the right result, but rather, it scrutinizes the underlying legal framework that allowed the courts to divide. After reviewing the basic doctrinal test--a two-rationale framework which determines the fiduciary exception's applicability--and how it has been applied both historically and in the circuit split, this Note "reads the tea leaves" that is an uncertain fiduciary exception jurisprudence in an effort to establish uniformity. This is accomplished by a two-part solution. First, this Note extracts the key principles from the Supreme Court's only fiduciary exception case to define the proper doctrinal elements for each part of the two-rationale framework. But even if the courts are in accord as to the exact legal test by which the fiduciary exception should be applied, uncertainty still remains given the pliability of that framework. To resolve this shortcoming, a new prong to the fiduciary exception test for ERISA insurers is proposed: a good cause prong, borrowed from the shareholder derivative suit context, but modified so that the insurer bears the burden of showing cause for nondisclosure.

Part I of this Note provides background on the fiduciary exception. Part I-A traces the doctrine's trust law origins, whereby the two-rationale framework was established as the legal test for the exception. Part I-B discusses how that test has been extended, focusing on its use in shareholder derivative suits through the Garner doctrine. Part II explores the fiduciary exception in ERISA cases, with Part II-A covering trustee-like ERISA cases. Part II-B dives into an ERISA context where the doctrine has not been so easily applied: the insurer-fiduciary context of the circuit split. Part II-C discusses the uncertainty surrounding the split and its causes. Finally, Part III offers a two-part solution to rework the doctrine. In Part III-A, the Supreme Court's Jicarilla decision is probed to establish the proper elemental tests for the two-rationale framework. Part III-B then proposes a new doctrinal prong for the fiduciary exception framework in the ERISA insurer context: a good cause prong deriving from Garner, but with a modified burden standard.

June 14, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally | Permalink | Comments (0)

Thursday, June 13, 2019

Article on Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners

CourtThomas W. Mitchell recently published an Article entitled, Historic Partition Law Reform: A Game Changer for Heirs’ Property Owners, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Over the course of several decades, many disadvantaged families who owned property under the tenancy-in-common form of ownership – property these families often referred to as heirs’ property – have had their property forcibly sold as a result of court-ordered partition sales. For several decades, repeated efforts to reform state partition laws produced little to no reform despite clear evidence that these laws unjustly harmed many families. This paper addresses the remarkable success of a model state statute named the Uniform Partition of Heirs Property Act (UPHPA), which has been enacted into law in several states since 2011, including in 5 southern states. The UPHPA makes major changes to partition laws that had undergone little change since the 1800s and provides heirs’ property owners with significantly enhanced property rights. As a result, many more heirs’ property owners should be able to maintain ownership of their property or at least the wealth associated with it.

June 13, 2019 in Articles, Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

These Beautiful Glass Pieces are Created with Your Pet’s Ashes

GlasspawMany people are accepting pets into their lives not only as companions but also as beloved family members. Glassmaker Cameron Davenport helps bereaved families keep memories nearby incorporating pets’ cremated remains into gorgeous glass trinkets. These glass trinkets can be formed into pendants in the shape of a cat or dog paw, and either worn as a necklace or other desire.

Cameron makes glass items with not only pet cremains but also human cremains. “One of my favorite parts about my job are the smiles and tears I receive from my clients,” he said. “They love the work I do and the meaning behind it.”

See Kathleen St. John, These Beautiful Glass Pieces are Created with Your Pet’s Ashes, Kgun9.com, June 11, 2019.

June 13, 2019 in Estate Planning - Generally | Permalink | Comments (0)

Doris Day: The Tragic Last Days of a ‘Manipulated’ Hollywood Icon

DorisdayAmerica's sweetheart of the 1950s and 60s, Doris Day, passed away on May 13 at the age of 97. But those around her paint the picture of a lonely and manipulated woman that did not spend much time outside of her home, isolating herself to her bedroom and kitchen. Her only grandchild, Ryan Melcher, said that he only learned of his grandmother's death from social media. Ryan's father, Terry, had been her only child and had been adopted by her third husband, producer Marty Melcher. Doris found out that Marty had squandered her $20 million fortune after his death, forcing her to begin The Doris Day Show on CBS.

Ryan has claimed on Facebook that veterinarian-turned-manager Bob Bashara blocked him from seeing his aging grandmother and even replaced board members on her animal-rescue foundation with Bashara's direct family members. Day's representative has denied these allegations. The longtime manager has stated that the actress's will specified that she wanted no funeral service or grave marker, and that she wanted her fortune to go to the Doris Day Animal Foundation. No will has yet been probated or filed.

See Sara Nathan and Chris White, Doris Day: The Tragic Last Days of a ‘Manipulated’ Hollywood Icon, Fox News, June 9, 2019.


June 13, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Film, Television, Wills | Permalink | Comments (0)