Wills, Trusts & Estates Prof Blog

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

Thursday, March 21, 2019

Article on Online Tools under RUFADAA: The Next Evolution in Estate Planning or a Flash in the Pan?

ToolsJustin H. Brown and Ross E. Bruch recently published an Article entitled, Online Tools under RUFADAA: The Next Evolution in Estate Planning or a Flash in the Pan?, Probate and Property Magazine, Vol. 33 No. 2, March/April 2019. Provided below is an introduction to the Article.

Over the past five years, the estate planning process for digital assets has dramatically transformed. Much of this transformation is the result of the United Law Commission's introduction of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in September 2015, which a majority of US states and territories have adopted with some variations. RUFADAA, like its predecessor, UFADAA, was drafted with the intent to unify and clarify states laws with respect to a fiduciary's ability to access an individual's digital assets and electronic communications. However, unlike UFADAA, which presumed a decedent's consent for the decedent's personal representative to access her digital assets, RUFADAA places the burden on the decedent to provide express consent through the decedent's will or another mechanism. Under RUFADAA, an individual may use an "online tool," which is an account-specific feature that an online custodian (e.g., Apple, Google, Yahoo) may offer that enable its users to provide directions for disclosure or nondisclosure of digital assets to a designated person. Online tools are account-specific - in other words, using Google's online tool will not dictate how information held in the decedent's Apple account should be shared. Any assets that are not addressed with an online tool are subject to the terms of a testator's estate planning documents. When digital assets are not addressed by an online tool or an estate planning document, a providers terms of service agreement will dictate access and disclosure of a decedent's digital assets and electronic information.

March 21, 2019 in Articles, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Glass Hearts with Cremains for Keepsake

BlueheartsEtsy is known as a market place for unique and often individualized items. So it comes to no surprised that handmade glass hearts with the personal touch of a loved one's cremains are offered as a service. 

The hearts are available in a wide assortment of colors and are approximately 3 inches in diameter and 3/4 inch thick.

The artist is based in Montana, and promises to return all unused cremains. They are also 50% off right now!

For more information, see here.

March 21, 2019 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Real Estate for the Afterlife

CemeteryLiving in New York City is expensive, but it appears that also residing in the city that never sleeps after death takes a large amount of money. Cemetery plots as well as above ground crypts have increased in price significantly over the years, with basic plots across the boroughs generally priced from $4,500 to $19,000, not including hefty fees for foundations, interments and maintenance. The cheapest can be found on Staten Island, but if you want to rest in a rare spot in Manhattan you could be spending upwards of $1 million.

Cemetery directors fully understand the concept that land is a finite resource in New York and have been coming up with ingenious ways to extend the occupancy of cemeteries, especially with the new popularity of cremations. Plots have decreased in size over the years and some are even "double-depth," a plot that can contain two coffins on top of each other. Just as New Yorkers with small apartments have been forced to turn dining rooms into bedrooms and closets into home offices, cemeteries, too, have gotten creative. Walkways, roadways, and other paths have been removed to make up for more grave sites.

Many cemeteries in New York are building columbaria, aboveground structures with niches that can hold hundreds or even thousands of urns for cremains. The niches within the structures can have glass fronts in which survivors can view the urns, which are often then accompanied by photos and other articles of their deceased loved one. Trinity Church's cemetery in Manhattan no longer accommodates in-ground burials, and aboveground crypts can run as high as $60,000 for a single coffin, while niches for a single urn range from $1,900 to $6,500.

See Jane Margolies, Real Estate for the Afterlife, New York Times, March 15, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 21, 2019 in Current Affairs, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, March 20, 2019

Article on Estate Planning for Mary Jane and Other Marijuana Users

WeedGerry W. Beyer and Brooke Dacus recently published an Article entitled, Estate Planning for Mary Jane and Other Marijuana Users, Probate and Property Magazine, Vol. 33 No. 2, March/April 2019. Provided below is the introduction of the Article.

An estate planner is more likely to encounter a client who regularly uses marijuana than a client who needs estate and gift tax planning, given that 55 million Americans are current users. Christopher Ingram, How Many Americans Regularly Use Pot: The Number Is, errr, Higher Than You Think, Wash. Post, April 20, 2018. At least 32 states and the District of Columbia currently exempt qualified users of medicinal marijuana from penalties imposed under state law. Additionally, ten states, Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and the District of Columbia authorize purely recreational use. See Legal Recreational Marijuana States and DC, ProCon.org (last visited Nov. 11, 2018). Accordingly, practitioners need to be aware of the interface between marijuana and estate planning.

This article provides a discussion of the major issues that arise in this context including: (1) impact of marijuana use on capacity; (2) interpretation of clauses conditioning benefits on the non-use of illegal drugs; (3) life insurance issues; and (4) marijuana-based assets in a decedent's estate or trust.

March 20, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

2 Ways to Combine Charitable Giving and Life Insurance

LifeinsuranceFinancial planning can be an ongoing process as life can be ever-changing. Sometimes having a life insurance policy can be the sole manner in which to preserve household wealth, while other times in can be more efficient to combine it with charitable giving.

If you no longer need a particular life insurance policy, you can simply give it away. You may donate it outright to a certain charity, or used a Donor Advised Fund (DAF). By changing the ownership, you can be done with it and may even be able to take a charitable income tax deduction for the value of the policy at the time of the gift. But there may be an issue of ongoing premiums, which would also shift to the charity. You can either continue to pay the premiums for the charity either to the charity itself or to the insurance company, or “you could convert the policy to a reduced and paid-up policy and donate it with no ongoing premiums needed," according to Dana Holt, CEO of HOLT Consulting.

You may also give a new life insurance policy to a charity, but the charity must have an insurable interest in the donor (you). If this is hard to manage, you could also name the charity as a beneficiary of the policy, either as a partial or full beneficiary, or to a trust that establishes the charity as the trust beneficiary to maintain more control over the funds.

See Jamie Hopkins, 2 Ways to Combine Charitable Giving and Life Insurance, Forbes, March 6, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

March 20, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts | Permalink | Comments (0)

CLE on Tax Treatment of Crytpocurrencies: What You Need to Know

CLEThe American Law Institute is holding a webcast entitled, Tax Treatment of Crytpocurrencies: What You Need to Know, on Friday, April 5th, 2019 from 1:00 - 2:00 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend
There’s a lot of buzz surrounding cryptocurrency as digital currency platforms gain acceptance for business transactions. There’s also an equal amount of confusion around how to treat cryptocurrencies for federal income tax purposes. Although the IRS has offered some guidance treating some cryptocurrencies as property, the buying, selling, and trading of cryptocurrencies, such as Bitcoin, for investment can still raise a lot of questions. The increasing use of digital money has resulted in new ways to acquire and use cryptocurrency, which raises further challenges. Legal counsel, tax advisers, and compliance professionals must fully understand the tax obligations to meet these compliance challenges.

What You Will Learn
Even though the IRS classifies all cryptocurrencies as property, there is still widespread uncertainty over the more complex factors when determining tax liability. Join us for this 60-minute webcast that focuses on the taxable events of cryptocurrencies and compliant reporting issues, including:

• Virtual currency tax compliance issues
• IRS Notice 2014-21: What is and isn’t addressed
• Tax treatment of Forks and Airdrops
• Token offerings and SAFTs
• Reporting obligations

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

Who Should Attend
This program is for any lawyer or accountant who is looking for a deeper understand of the tax obligations for cryptocurrencies.

March 20, 2019 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, March 19, 2019

Article on Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience

IowaE. Gary Spitko recently published an Article entitled, Intestate Inheritance Rights for Unmarried Committed Partners: Lessons for U.S. Law Reform from the Scottish Experience, 103 Iowa L. Rev. 2175 (2018). Provided below is an abstract of the Article.

No U.S. state affords intestate inheritance rights to the unmarried and unregistered committed partners of a decedent. This omission has become more and more problematic in recent years as cohabitation rates in the United States has risen and marriage rates have decline. Indeed, the phenomenon of increasing cohabitation rates and declining marriage rates is observed across the developed word. Unlike in the United States, however, a significant number of foreign jurisdictions have reformed their law to afford intestate inheritance rights to a decedent's surviving unmarried committed partner.

This Article looks to Scottish law to inform consideration of how U.S. states might best reform their intestacy statutes so as to provide intestate inheritance rights to a surviving unmarried committed partner. Examination of Scottish law should provide especially fruitful for U.S. law reformers. The relevant Scottish statutory provisions have been in effect since 2006 and have been extensively critiqued by Scottish courts, academics, and practitioners. Indeed, the Scottish Law Commission ("SLC"), whose recommendations led to adoption of the current scheme, has called for repeal of these intestacy provisions, and has offered a replacement scheme. Moreover, Scottish succession law and U.S. succession law share significant norms valuing certainty and preferring fixed entitlements and limited judicial discretion.

The Article evaluates the Scottish statute with respect to three major issues of principle that should be at the center of U.S, reform discussions: fulfillment of purpose, implications for certainty and administrative convenience, and implications for marriage. The Article similarly evaluates the SLC's proposal to replace the current statute. Finally, the Article reflects upon the Scottish statute and the SLC proposal in considering which element of Scottish law a U.S. state might profitably borrow or should reject in an effort to craft a more inclusive approach to the intestate inheritance rights of unmarried committed partners consistent with the principles of U.S. succession law. The jumping off point for this discussion is this author's previously published proposal for a model statute that implements an accrual/multi-factor approach to intestate inheritance rights for unmarried committed partners. After describing the significant features of this proposal, the Article considers how one might evolve the proposed accrual/multi-factor approach to incorporate the lessons learned from the Scottish experience.

March 19, 2019 in Articles, Current Affairs, Estate Planning - Generally, Intestate Succession, New Legislation | Permalink | Comments (0)

Leslie Jones' Funeral Plans (SNL video)

SNLSometimes, planning a funeral can be more fun for a girl than her wedding. Especially when it involves Alex Rodriguez, Run DMC, and Jason Mamoa.

Disclaimer: video contains "adult" language.

See Weekend Update: Leslie Jones' Funeral Plans, NBC, March 9, 2019.

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

March 19, 2019 in Current Events, Death Event Planning, Estate Planning - Generally, Humor | Permalink | Comments (0)

New York Woman 'Sucked into Parents' Grave' Suing Cemetery

TombstoneJoanne Cullen was visiting the final resting place of her parents in Long Island found herself falling into a sudden sinkhole at the cemetery. her lawyer, Joseph Perrini, says that the fall caused her to pitch forward and hit her face on a tombstone and cracked a tooth. The stunned woman says she sunk into the grave down to her hips, and her cries for help went unanswered.

The scene occurred on December 29, 2016. “Getting sucked into your parents’ grave when you go to visit them on a cool December afternoon with the sun going down … it’s terrifying and traumatizing,” the lawyer said. Now the North Bellmore woman is seeking $5 million from the St. Charles Resurrection Cemetery administrators’ from the trauma of the event.

She claims that she is terrified to visit her parent's grave again, suffers from headaches and nightmares, and now fears walking in open fields. Perrini contends that gravediggers who backfilled an adjacent grave to Cullen’s parents left an underground void that caused Cullen to descend into the ground.

See New York Woman 'Sucked into Parents' Grave' Suing Cemetery, Fox News, March 17, 2019.

March 19, 2019 in Current Events, Estate Planning - Generally, Humor, New Cases | Permalink | Comments (0)

Monday, March 18, 2019

Article on Intervention to Prevent Abuse of Trust Structures [New Zealand]

TrustsNicola Peart published an Article entitled, Intervention to Prevent Abuse of Trust Structures, Wills, Trusts, & Estates Law eJournal (2010). Provided below is an abstract of the Article.

Trusts are very common in New Zealand, but they are increasingly detrimentally affecting the rights of creditors and spouses or partners when their relationship ends. This article examines the current statutory and common law remedies available to creditors and spouses or partners whose rights are defeated by trusts.It concludes that the existing law does not adequately protect such persons. The article considers options for reform and recommends that Parliament review the balance between socio-economic imperatives and the protection provided by the general principles of trust law.

March 18, 2019 in Articles, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)