Wills, Trusts & Estates Prof Blog

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

Monday, January 21, 2019

Book on The Heirs: A Novel

TheheirsSusan Rieger recently published a book entitled The Heirs: A Novel (2018). Provided below is a synopsis of the book.

Six months after Rupert Falkes dies, leaving a grieving widow and five adult sons, an unknown woman sues his estate, claiming she had two sons by him. The Falkes brothers are pitched into turmoil, at once missing their father and feeling betrayed by him. In disconcerting contrast, their mother, Eleanor, is cool and calm, showing preternatural composure.

Eleanor and Rupert had made an admirable life together -- Eleanor with her sly wit and generosity, Rupert with his ambition and English charm -- and they were proud of their handsome, talented sons: Harry, a brash law professor; Will, a savvy Hollywood agent; Sam, an astute doctor and scientific researcher; Jack, a jazz trumpet prodigy; Tom, a public-spirited federal prosecutor. The brothers see their identity and success as inextricably tied to family loyalty – a loyalty they always believed their father shared. Struggling to reclaim their identity, the brothers find Eleanor’s sympathy toward the woman and her sons confounding. Widowhood has let her cast off the rigid propriety of her stifling upbringing, and the brothers begin to question whether they knew either of their parents at all.

A riveting portrait of a family, told with compassion, insight, and wit, The Heirs wrestles with the tangled nature of inheritance and legacy for one unforgettable, patrician New York family. Moving seamlessly through a constellation of rich, arresting voices, The Heirs is a tale out Edith Wharton for the 21st century.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

January 21, 2019 in Books, Books - Fiction, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Rise in Cohabiting Couples Choosing Death Bed Marriages [UK]

MarriageMany couples are wedding shortly before one partner dies, presumably for the tax and probate benefits of such transactions. In the United Kingdom, everything that passes to a surviving spouse is exempt from inheritance tax. The spouse also inherits at the probate value, meaning when a major asset is sold the capital gains tax will only apply on the increase of value from when the person passed away.

The Passport Office released a report in May 2018 that there were 190 urgent applications for a Registrar General’s License to get married or enter a civil partnership, an 11% increase from the year before. This can be highly beneficial for those that believe that common law marriages have the same right of inheritance as formal ones. This is not the face, and unfortunately many people do not find this out until it is too late - and the inheritance tax bill is due.

Adult children may dispute a marriage performed in the throes of illness, especially if a will is written that disinherits them entirely or removing a portion of what they believed they were due. They may question if their parent had the capacity for either contract or whether there was undue influence. A last minute marriage will certainly protect the spouse or civil partner, but having a watertight will is also essential to clear up any confusion.

See Kate Saines, Rise in Cohabiting Couples Choosing Death Bed Marriages, Money Pages, January 11, 2019.

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

January 21, 2019 in Current Affairs, Estate Planning - Generally, Estate Tax, Intestate Succession, Wills | Permalink | Comments (0)

Significant Increase in Use of Property Tax Deferral, Decrease in Home and Community Care for Seniors

NursinghomeSeniors Advocate Isobel Mackenzie released an annual report called Monitoring Seniors Services 2018, showing that the number of seniors using property tax deferral increased by 53% in the last 4 years. The last year alone showed an increase by 21%, with 57,305 seniors deferring their property taxes, of which 13,179 were new users of the program.

Though there was a 4% increase in seniors over the age of 65 and 5% increase in those over 85%, there was a 1.4% decrease in the number of seniors receiving home support service. More hours were delivered as the total number of hours delivered remained about the same resulting in a 2% increase in the average hours of care. There may be shift moving assisted living into the private sector, a there is a 2% decrease in publicly subsidized registered assisted living units, but a 7% increase in privately funded registered assisted living units. Long-term care facilities saw a 2% reduction in turnover with an 8% reduction in new admissions with 1,379 people awaiting placement. Waitlists for these facilities as of March 2018 were 7% longer than March 2017, but 23% shorter than September 2016. 

Mackenzie noted, “As always this report highlights there are a significant number of supports for seniors, and while some services increased in tandem with the growing seniors’ population, others are not keeping up with demand."

See Rattan Mall, Significant Increase in Use of Property Tax Deferral, Decrease in Home and Community Care for Seniors, Voice Online, January 9, 2019.

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

January 21, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Article on Disposition of Digital Assets in Georgia

UgaClint A. Guillebeau published a Note entitled, Disposition of Digital Assets in Georgia, 25 J. Intell. Prop. L. 29-40 (2017). Provided below is an introduction of the Note.

Estate planning law tells us that following an individual’s death, the disposition of that individual’s tangible property, such as a car or a house, whether he died intestate or with a thorough estate plan, will pass on to his or her heirs. Probate and estate issues are governed by state law and Georgia’s laws are codified in the Georgia Code in Section 53 where the disposition of tangible property can be found. What is lacking in Georgia’s wills, trust, and estate laws is what happens to other forms of property such as digital assets. With the ever-increasing reliance and usage of the internet this issue needs to be addressed. Currently, there is no federal law with regard to the disposition of digital assets, and state law that has thus far been adopted is scarce. However, in 2015 the Uniform Law Commission (ULC) drafted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) with a twofold purpose expressed in a prefatory note. 

First, it gives fiduciaries the legal authority to manage digital assets and electronic communications in the same way they manage tangible assets and financial accounts, to the extent possible. Second, it gives custodians of digital assets and electronic communications legal authority to deal with fiduciaries of their users, while respecting the user’s reasonable expectation of privacy for personal communications.

This Note will support the position that states, and Georgia in particular, should adopt a version of RUFADAA but should first strongly consider and redraft some of the language. This Note will advocate in part on the potential adoption of federal law requiring users to sign an online tool before gaining access to a website. Further, this Note proposes a reorganization of the three tier distribution system of digital assets found in the Revised Uniform Fiduciary Access to Digital Assets Act which would allow estate planning documents, if drafted later in time, to trump the online tools articulated designations.

Part II of this Note will provide the background needed for a thorough understanding of the problem. This section will provide the definition and examples of digital assets, provide the history of how digital assets have been handled over the years, as well as provide an understanding of current federal and state law regarding this issue. This section will also analyze how Georgia in particular has dealt with digital assets. Part III will outline important aspects of RUFADAA and analyze the benefits as well as potential consequences of a strict adoption of RUFADAA. Part IV will advocate for Georgia to adopt RUFADAA but with a few changes to better handle possible issues. Part V will be a conclusion summarizing this Note. 

January 21, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Sunday, January 20, 2019

Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party

WillNaming the correct party to a suit is one of the most elementary and necessary aspects to any litigation, and though it may appear to be a simple mistake, it can cause the entire case to come crashing down. 

In the appellate level court of Virginia, a wife that had been excluded from her husband's will found this out the hard way. After realizing the circumstance's of her late husband's will after it had been entered into probate, she filed a suit in circuit court seeking to claim her statutory elective share of his augmented estate. When a spouse is written out of a decedent spouse's will, some state's have statutes providing that the surviving spouse is entitled to a certain portion of the estate. The procedures to do so are very precise.

The wife was styled and brought against the Estate itself and did not include the administratrix, the fiduciary appointed to administer the Estate - but the wife did serve the administratrix. The Administratrix later made a motion to dismiss the lawsuit on the grounds that it was filed against the wrong party, and also as the statute of limitations had passed, not allow the wife to file a new suit against the administratrix. Wife argued the amending the complaint was more equitable remedy. The trial court ruled that naming the estate as the party was a nullifying offense, and the complaint could not be amended as there was no other party named. The appellate court affirmed the decision, as litigants have a duty to investigate the proper parties to sue or be sued, and all parties must be living.

See Brett Herbert, Matters of Style: Spouse’s Elective Share Suit Dismissed for Naming the Wrong Party, Estate Conflicts, January 14, 2019.

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

January 20, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Malpractice, New Cases, Wills | Permalink | Comments (0)

Saturday, January 19, 2019

An Amazonian Divorce

AmazonAs the shock wave of the news expanded over the last couple weeks, it would have been hard to miss that Amazon founder, Jeff Bezos, has announced that him and his wife of twenty-five years were divorcing. 

The couple lived in Washington, a community property state, and with Amazon being founded during the marriage it could mean that MacKenzie would be entitled to half of the value of the massive company. Stocks, personal property, and other forms of Bezos's wealth would need to be accounted for as well. But many say that it would be in MacKenzie's ultimate best interest to have Amazon continue to be successful and thrive, so diluting her soon-to-be ex-husband's share of the company would be counter-productive.

The couple created a charitable fund in late 2018 called the Day One Fund, which helps homeless families and creates preschools in impoverished areas. It started with a $2 billion from the Bezos’s, and it unclear as of yet how the fund will be impacted by the divorce.

See Emily C. Jeske, An Amazonian Divorce, Smith Debnam Law, January 9, 2019.

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

January 19, 2019 in Current Affairs, Current Events, Estate Planning - Generally, Technology | Permalink | Comments (0)

The £40m Freddie Mercury Prize

FreddieThe former fiancé of Freddie Mercury, Mary Austin, inherited 50% of the Queen front man when he passed away from AIDS in 1991, increasing to 75% when his parents passed away. The other 25% went to Mercury's sister. Austin also inherited his 28-room mansion in west London and his enviable art and Louis XV furniture collections. Though the pair never married due to Mercury coming out as gay, the two remained extremely close for the rest of his life.

Future earnings of Queen are split four ways between the Freddie Mercury estate and his three surviving bandmates – guitarist Brian May, drummer Roger Taylor and bassist John Deacon. Therefore Austin, 67, will receive roughly 19% of the profits of the recent Bohemian Rhapsody movie, or £40 million. She did not participate in the production of the movie and appears to have no dealings with the remaining members of the band.

A film insider said "This film was created and managed by Queen, which means they can protect their share. I would expect the studio to get around 50 per cent and the rest to go to the surviving Queen members and the Freddie Mercury estate."

See Arthur Martin & Adam Luck, The £40m Freddie Mercury Prize, Daily Mail, January 11, 2019.

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

January 19, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Film, Wills | Permalink | Comments (0)

Friday, January 18, 2019

Article on Is the Trustee-Beneficiary Relationship Necessarily Fiduciary

Trusts2Tobias Barkley published an Article entitled, Is the Trustee-Beneficiary Relationship Necessarily Fiduciary, Wills, Trusts, & Estates Law eJournal (2014). Provided below is an abstract of the Article.

This paper is about the relationship between trust law and the concept of a fiduciary. The traditional position on this relationship is that express trustees are necessarily fiduciaries. However, developments in trust drafting practice and their implicit acceptance by the courts have put the relationship between fiduciary and trustee under strain, with the result that there appears to be a divergence between the fundamental obligations of a trustee and the fundamental obligations of a fiduciary.

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

Thursday, January 17, 2019

'Aunt Bee' of the Andy Griffith Show Left 100K for Small Town Police

BavierNOWFrances Bavier, the actress who played Aunt Bee in the classis Andy Griffith Show, appeared to be highly appreciative of her local police department. Bavier lived in Siler City, North Carolina in her later years solo with an astounding 14 cats. She passed away at the age of 86 in 1989 and her will specified that $100,000 go toward a trust fund for the police. The principal of the trust fund is kept at $100,000, while the interest is divided among the police staff of around 20 every year for a Christmas bonus around December 15.

Floyd Bowers, who worked at an Exxon station in the town, told the press in 2004 that Bavier "liked her privacy, and she was hard to please. My wife worked at the hospital, and she was what the nurses call a hard patient.” Though she may have been difficult to deal with, locals believe that it was a nice last gesture by the woman.

See Amy Lieu, Frances 'Aunt Bee' Bavier of the Andy Griffith Show Left 100g for Police in Small Town of North Carolina Report, Fox News, January 11, 2019.


January 17, 2019 in Estate Planning - Generally, Television, Trusts, Wills | Permalink | Comments (0)

You Must Plan for Your Clients' Extramarital Affairs

SecretRelationships that occur outside of the marriage happen enough that advisors should be aware of the situations arising from them even though not every client will need that particular advice. The extramarital relationship can have particular repercussions if the married person is affluent. The relationship can be short flings or long-term affairs, and the longer the affair the more likely the "stranger to the marriage" may feel entitled to certain assets or a certain percentage of the person's estate.

The conversation to convince the client to be honest about the affair may be awkward, but it could be pivotal to be forward thinking and cover all aspects of the client's testamentary desires. Clarity about the financial aspects of the relationship supported by legal documentation and legal structures can be very beneficial. An irrevocable trust with the paramour designated as the beneficiary can be effective to make sure they are provided for after the client's death while also guaranteeing that a jilted spouse or disenchanted descendants cannot alter it.

What about a rejected lover? "Hell hath no wrath like a woman scorned." The entanglement of embarrassment and revenge may add a certain spice to Hollywood movies but it does not do any favors for clients. Astute wealth planning and carefully worded nondisclosure agreements with substantial legal penalties can be effective in these unfortunate situations.

See Russ Alan Prince, Russ Prince: Yes, Advisors, You Must Plan for Your Clients' Extramarital Affairs, Financial Advisor Magazine, January 10, 2019.

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

January 17, 2019 in Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)