Wills, Trusts & Estates Prof Blog

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

Sunday, October 24, 2021

New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest

Estate planningIn Matter of Falkowsky, the New York Supreme Court, Appellate Division, Second Department, "affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capacity and undue influence, and denied the admission of the will to probate." 

The Court affirmed the Surrogate's Court decision in which it found a lack of testamentary capacity alone, focusing on the evidence presented which "effectively demonstrated that the decedent did not understand the nature and extent of his property." 

Harold Falkowsky was hospitalized on December 1, 2014. Two weeks later, Harold apparently executed a last will and testament "in which he devised $20,000 to each of his sons, Ira and Jeffrey, 50% of the residue of his estate to charities, and the other 50% of his residue to his sister, Alice Sobel. Harold, the decedent, died on January 14, 2015, just a month after he executed the Will. 

In March 2015, Alice petitioned for probate of the will and letters testamentary. Jeffrey, Harold's son, filed objections to the probate of the will, alleging lack of testamentary capacity and undue influence.

After examining the evidence, the Court ultimately found that Alice failed to prove that the decedent possessed the requisite testamentary capacity under New York Law, "as she failed to establish that the decedent knew the nature and extent of the property of which he was disposing." 

See New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest, Probate Stars, October 19, 2021. 

October 24, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, October 22, 2021

Social Security Benefits to Increase 5.9% for 2022

Americans receiving Social Security benefits in 2022 will see "the largest increase in their payments in four decades, reflecting surging inflation during the pandemic."

According to the Social Security Administration, in 2022 the cost-of-living adjustment (COLA) will be 5.9%, which will result in an addition of $92 to retirees' average monthly benefit next year. The increase brings the amount to $1,657, the agency estimates. The 5.9% COLA is the largest since 1982. 

The Social Security Administration also said that the maximum amount of earnings subject to the Social Security tax "will increase to $147,000 in 2022 from $142,800 this year, a 2.9% increase." 

According to Naomi Fink, a retirement economist at Capital Group, an investment manager, "[t]he extent to which the larger-than-usual Social Security adjustment makes retirees' and other recipients feel more well off will largely depend on whether inflation eases next year compared with 2021. . ." 

See Amara Omeokwe, Social Security Benefits to Increase 5.9% for 2022, The Wall Street Journal, October 13, 2021. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

October 22, 2021 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

The ACTEC Foundation Announces Mary Moers Wenig 2021 Student Writing Competition Winners

The following is from an ACTEC press release:

Washington, DC, October 21, 2021: The American College of Trust and Estate Counsel (ACTEC) Foundation today announced the 2021 winners of the Mary Moers Wenig Student Writing Competition. Five law students' submissions stood out among 21 entries received and reviewed by a panel of judges appointed by the Legal Education Committee of the College. ACTEC Fellow T. Randolph Harris, who chaired the judging process, said, "This year’s entries were outstanding! It was exciting to read such thought-provoking papers."

The ACTEC Foundation supports the annual legal writing competition to encourage law students to create scholarly works in the area of trusts and estates. The first-place winner receives a full-tuition scholarship to the Heckerling Graduate Program in Estate Planning at the University of Miami School of Law for the 2022-2023 or 2023-2024 academic year, a $5,000 cash award and will have their work published in the ACTEC Law Journal. Candidates must apply and be admitted as full-time students to qualify for the scholarship. The second-place winner receives a $3,000 cash award, online publication — featuring their work on ACTEC's website —and possible publication in the ACTEC Law Journal. The competition's third-place recipient is awarded $1,000, online publication on ACTEC's website and possible publication of their work in the ACTEC Law Journal. Honorable mentions usually receive a $500 cash award. 

First place winner, Zachary Carsten of Pepperdine Caruso Law School, said, "I am so honored to be the winner of the 2021 Mary Moers Wenig writing competition, and I am grateful to the editors and staff of the ACTEC Law Journal for selecting my article. I hope it can provide a meaningful contribution in the conversation about physician-assisted suicide as this critical policy debate continues to unfold in the United States."

The 2021 Mary Moers Wenig Student Writing Competition Winners are:

    • First Place: Zachary Carsten of Pepperdine Caruso Law School
      • "Physician-Assisted Death and the Slippery Slope: Carving out an American Ledge"
    • Second Place: Madison L. Orcutt of University of San Diego School of Law
      • "Blood Does Not Necessarily Make a Family (or Any Fraction Thereof): Intestate Succession, Half-Blood Siblings, and Assisted Reproductive Technology"
    • Third Place: Daniel Fein of New York University School of Law
      • "A Defense of Perpetual Trusts"
    • Honorable Mention: Christopher John Benos of University of Virginia School of Law
      • "Trust Protectors as Fiduciaries: Three Approaches and Beyond the UDTA"
    • Honorable Mentions: Peter Mezey of New York University School of Law
      • "On Estate of Elkins and a New Path to Valuation of Collectibles?"

About the ACTEC Foundation: The ACTEC Foundation is the philanthropic arm of The American College of Trust and Estate Counsel or ACTEC. The ACTEC Foundation is a nonprofit, 501(c)(3) that offers education to families and professionals and supports students interested in the trust and estate area of the law. Through continued financial support, The ACTEC Foundation offers professional development, scholarships and education for a number of important efforts, including legal education, educational support, public initiatives, legal publications and the student editorial board.

About the American College of Trust and Estate Counsel: Established in 1949, The American College of Trust and Estate Counsel, ACTEC, is a national organization of approximately 2,500 lawyers, peer-elected to membership by demonstrating the highest level of integrity, commitment to the profession, competence and experience as a trust and estate counselor. Our members, "Fellows," are the best and brightest in trust and estate practice, with decades of experience representing and advising families. ACTEC offers technical comments about the law and its effective administration but does not take positions on matters of policy or political objectives.

October 22, 2021 in Writing Competitions for Students | Permalink | Comments (0)

Thursday, October 21, 2021

Off Topic: Water Law Symposium: West Texas Water

At the request of my colleague and friend, Prof. Amy Hardberger , the George W. McCleskey Professor of Water Law and  Director of the Center for Water Law and Policy at the Texas Tech University School of Law, below is information about a seminar entitled West Texas Water:

The Texas Tech Law Review is proud to host the first West Texas Water Law Symposium on November 5th in conjunction with the Center for Water Law and Policy. The symposia will be offered for CLE credit. Register for the event at this link.

The Texas Tech School of Law invites you all to attend the Texas Tech Law Review Fall Water Law Symposium. This year’s symposium: West Texas Water The New Frontier, will provide an extensive look at the current state of Water Law and Policy affecting West Texas. Attendees will benefit from a surplus of knowledge presented through panels and lectures. The cost of attendance is $75. Due to the current status of the Covid-19 pandemic, the Symposium will take place completely virtual. The Symposium will be offering 7.5 hours of CLE credits with the Texas State Bar, including .75 hours of Ethics CLE credit.

Texas Tech Law Review is working in concert with the Texas Tech Center for Water Law and Policy to present this Symposium. They are excited to offer this CLE credit to our alumni. Professor Hardberger has recruited a group of speakers with diverse backgrounds in Water Law and Policy. We hope you can join us virtually on November 5th from 9:00 am to 5:15 pm. Follow this link to register for the event.

If you have any questions, please contact our Symposium Editor Donald “Trey” Parker at donald.parker@ttu.edu.


October 21, 2021 in Conferences & CLE | Permalink | Comments (0)

Article: Trust Planning and the Washington State Capital Gains Tax

J. M. Coppieters recently published an article entitled, Trust Planning and the Washington State Capital Gains Tax, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

On April 25, 2021, the Washington State Legislature enacted a new state capital gains tax. Before now, Washington state has been one of the few states that does not impose a tax on either income or capital gains. Because of limitations imposed by the Washington State Constitution, the legislature has been forced to characterize the tax as an excise tax, rather than treat it as an income tax as would the federal government and every other state. Based on the statute’s structure and its presentation as an excise tax, whether intentionally or unintentionally, the legislature appears to have excluded both the trustees and beneficiaries of non-grantor trusts from being subject to the tax. This Article reviews the difference between grantor and non-grantor trusts, examines the apparent discrepancy between the two under the statute, and explores tax strategies planners and clients might consider pursuing in the wake of the new tax.

October 21, 2021 in Articles, Estate Administration, Estate Planning - Generally, Estate Tax, Trusts | Permalink | Comments (0)

Wednesday, October 20, 2021

Injunctive Relief to Prevent Monetary Damages in Estate Litigation

Estate planningGenerally, a party is only entitled to injunctive relief if they can "demonstrate that the damages for which they seek redress are not compensable by an award of monetary damages. . ."

However, the US District Court recently decided that injunctive relief was necessary to preserve monetary assets pending the resolution of the matter. Though it is rare to see estate litigation before a US District Courts the Court applied New Jersey law to reach its holding that injunctive relief was appropriate. 

The US District Court found that "the decedent had improperly taken a large sum of money from the party who had brought the litigation" after the plaintiff discovered that the decedent's estate was going to sell a parcel of property. The plaintiff moved for an injunction requiring the proceeds from the sale to be held in escrow. The District Court found that injunctive relief was necessary to "preserve the status quo and prevent the dissipation of these assets prior to a ruling on the merits." 

The Court further concluded that the plaintiff would suffer irreparable harm should the assets be distributed before the conclusion of the lawsuit. 

The District Court's decision indicates that courts may impose injunctive relief in order to protect monetary assets. 

See Paul W. Norris, Injunctive Relief to Prevent Monetary Damages in Estate Litigation, Stark & Stark Attorneys at Law: New Jersey Law Blog, October 12, 2021. 

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

October 20, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, October 19, 2021

Reimagining Postmortem Conception

Kristine S. Knaplund recently published an article entitled, Reimagining Postmortem Conception, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents. And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception--a New York amendment effective in February 2021--the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive. This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

October 19, 2021 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Approaching Equitable Retirement Tax Incentives

Albert Feuer has recently posted on SSRN  his article entitled Approaching Equitable Retirement Tax Incentives.   Here is the abstract of his article:

In September, the Ways-and-Means Committee of the House approved proposals to substantially improve the equity of retirement tax incentives for American workers. The new requirement that employers automatically enroll employees in a simple defined contribution plan, and the new refundable retirement savings tax credits, both do so. One major proposal needs to be added. Roth individual retirement accounts and annuities (IRAs) must be subject to the same required minimum distribution (RMD) rules as traditional IRAs. Other Committee proposals may be improved. Simplify the new excess balance distribution rules for a taxpayer, whose aggregate IRA and defined contribution accounts exceed $10 million at the end of a tax year. Harmonize the sanctions for excess balance violations with those for RMD rule violations. Simplify the new Roth IRA conversion rules. Remove the income threshold triggers for the new limits. Increase reporting about participant and beneficiary individual accounts.

Congress is now considering how to better implement the common-sense principle that tax incentives to encourage adequate retirement savings be focused on retirement savings. By increasing transparency and the benefits directed at those with inadequate retirement saving as described herein, and reducing loopholes and undue complexity, Congress may not only increase the equity and efficacy of our huge retirement tax incentives and our tax system, but boost Americans’ confidence in their government.

October 19, 2021 in Articles, Non-Probate Assets | Permalink | Comments (0)

Monday, October 18, 2021

As Second Homes Get Far More Use, the Question Is: Where Do You Live?

Estate planningOf course, owning one home comes with its challenges. But the challenges may mount even higher when owners split their time equally between two or more properties. In these cases, owners face tax, legal, financial, and personal challenges. 

The Rounds family have recently faced these challenges since they have began to spend an extensive amount of time at their second home in the Teton Vally region on the Wyoming/Idaho border. 

Mr. Rounds and his wife closed on a $2.5 million house in Idaho, and although the family planned on splitting their time equally between their home on the East Coast and the new home, they have already spent six months in the new home. 

The family has had to figure out how to "ship cars halfway across the country, find a second pediatrician for their 11-mont-old-daughter, and get their three Maltese dogs back and forth between the two homes." These challenges are not typically encountered by people who only spend weekends and the occasional vacation week at a second home. 

This "co-primary home" lifestyle has been the norm for the ultra-rich. But due to the pandemic, working remotely has become more of the norm and has made the co-primary home lifestyle a more realistic lifestyle choice for second-home owners who are less wealthy.

For those thinking about the lifestyle, it is important to consider the tax, financial, legal, and personal challenges that may come along with it.

See E.B. Solomont, As Second Homes Get Far More Use, the Question Is: Where Do You Live? , The Wall Street Journal, October 14, 2021.

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

October 18, 2021 in Estate Administration, Estate Planning - Generally, Income Tax, Travel | Permalink | Comments (0)

Sunday, October 17, 2021

National Estate Planning Awareness Week October 18-24, 2021

National Estate Planning week will begin on Monday, October 18 2021 and will extend to October 24, 2021. National Estate Planning week was adopted in 2008 "to help the public understand what estate planning is and why it is such a vital component of financial wellness." 

The National Association of Estate Planners & Councils (NAEPC) is the association of choice for estate planning professionals. The NAEPC is made up of 2,000 Accredited Estate Planner designated professionals, 270 affiliated local estate planning councils, and 30,000 members with ongoing education and a forum for networking within the estate planning community. 

The NAEPC had this message for Councils: 

NAEPC's goal is to work with affiliated local councils to reach every American annually with a reminder about the need for estate planning. It is our hope our councils will host education events, call-in phone banks, and seminars each and every October to help spread the word: YOU need estate planning TOO!

As leaders in the estate planning community, your members have first-hand experience with the challenges Americans face with regard to saving, investing, and planning for their future. As an estate planning council, you have the ability to make a significant impact in your home community. 

See NAEPC, National Estate Planning Awareness Week October 18-24, 2021, naepc.org, last visited October 17, 2021. 

October 17, 2021 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)