Wills, Trusts & Estates Prof Blog

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

Tuesday, January 21, 2020

Article on Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?

MarriageIryna Dikovska recently published an Article entitled, Can a Choice-of-Court Agreement Included in a Marriage Contract Meet the Requirements of Both EU Succession and Matrimonial Property Regulations?, Wills, Trusts, & Estates Law e Journal (2019). Provided below is an abstract of the Article.

Due to the fact that matrimonial property and inheritance issues are closely intertwined, in some situations the determination of rules which should be applicable to particular relationships seems problematic. This fully applies to marriage contracts which cover both types of issues. The presence of a cross-border element in such contracts raises the question of the delineation of the legal regimes of the Matrimonial Property Regulation and the Succession Regulation applicable to matrimonial property and succession issues respectively. This paper analyses the rules which should be applicable to choice-of-court agreements for matters arising out of marriage contracts which cover both matrimonial property and inheritance issues and include a cross-border element. For this reason, the paper reveals the interaction between the regimes of the Matrimonial Property Regulation and the Succession Regulation, and the requirements of choice-of-court agreements under both regulations. Some of the requirements of these regulations of choice-of-court agreements coincide (eg formal requirements), while others differ. The main differences include: the precondition for the conclusion of a choice-of-court agreement under the Succession Regulation, which is not required under the Matrimonial Property Regulation; the courts which may be chosen; and the circle of matters which can be resolved by the courts on the basis of the choice-of-court agreement. It is concluded that a choice-of-court agreement, included in the marriage contract, can meet the requirements of both the Succession Regulation and the Matrimonial Property Regulation if: the dispositions upon the death of a spouse, included in the marriage contract, are an ‘agreement as to succession’ in the meaning of Article 3(1)(b) of the Succession Regulation; the marriage contract includes a choice-of-law agreement in favour of the law of the Member State whose nationality a deceased spouse possessed when the choice-of-law agreement was concluded; this choice of law agreement covers the succession of the deceased spouse ‘as a whole’; the choice-of-court agreement grants jurisdiction to the courts of the Member State whose nationality a deceased spouse possessed at the time of the conclusion of the choice-of-law agreement; it provides the jurisdiction of ‘the courts’ of a Member State (not ‘a court’).

January 21, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (0)

Court Holds that a Husband had no Interest in his Deceased’s Wife’s Real Estate that was Obtained Via a Gift Deed

TexasProperty acquired by a married person in Texas is presumed to be community property, unless it is proven through clear and convincing that the property is separate property. This determination is made at the time of acquisition, or inception of title. To be separate property obtained during the marriage, the property must be acquired through gift, devise, or descent.

In Leland House v. Webb, a husband claimed that tracts of land his deceased wife acquired from her aunt through a deed was a conveyance that fell within the community property presumption. The executor argued that the transfer was not a sale of property, but was a gift. The trial court agreed that the executor beat the presumption, and the husband appealed.

The appellate court stated it was undisputed that the tracts of land was transferred to the wife during her marriage. The husband's argument focused on the fact that the word "gift" never appeared in the deed. The executor conceded that issue, but argued that the consideration for the property was merely "love and affection" that the aunt had for the wife. The court found that "Leland’s interpretation of the deed unreasonable because the deed plainly states that the only consideration for the transfer was love and affection for a family member." Because of this, the aunt's "intent to give the Property to Dianne can be ascertained from the language of the deed." Therefore, the acquisition rebutted the community property presumption, and the husband held no interest in the tracts of land. 

See David Fowler Johnson, Court Holds that a Husband had no Interest in his Deceased’s Wife’s Real Estate that was Obtained Via a Gift Deed, Texas Fiduciary Litigator, January 15, 2020.

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

January 21, 2020 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Monday, January 20, 2020

Article on Crummey Powers: Still a Powerful Estate Planning Tool

CrummeyRobert J. Adler recently published an Article entitled, Crummey Powers: Still a Powerful Estate Planning Tool, Probate & Property Magazine, Vol. 34 No. 1 (Jan/Feb 2020). Provided below is the introduction to the Article.

In the usual case, an unfunded irrevocable life insurance trust will rely on gifts from the trust grantor to provide funds necessary to pay future premiums. These gifts are subject to the gift tax. IRC § 2503(b) provides for a gift tax annual exclusion of up to $15,000 (as indexed through 2019) per donee per year for gifts of present interests. Gifts of a future interest do not qualify for the annual exclusion. Consequently, gratuitous transfers in trust of cash to pay life insurance premiums would ordinarily be future interest gifts for which no annually excludable amount is available.

January 20, 2020 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm

CryogenicsKurt Pilgeram says that the company Alcor Life Extension Firm was to preserve his late father's body cryogenically, but instead only froze the man's head, and sent Kurt the rest of his ashes. He sued the company for a million dollars, claiming the event caused him extreme mental distress. Now Alcor is countersuing the son, claiming fraud by way of hiding documents from the probate court.

Diane Cafferata, the attorney who represents the company, says that "After [Laurence] Pilgeram died in 2015, his son hid the codicil and all his father's testamentary documents from the probate court and falsely claimed his father died intestate," thus causing Kurt and his brother to inherit their father's $16 million fortune. Cafferata also claims that the son blocked the company from received an $80,000 life insurance policy that was to pay for the preservation. Within the alleged codicil is a provision that states if a beneficiary challenged his father's wish to be preserved, they were to receive merely a dollar.

Laurence Pilgeram was a scientist that worked for several decades in the field of cryogenics and entered into an agreement with Alcor back in 1990 at the age of 67 to be preserved upon his death. When he died in 2015 of cardiac arrest he was 90. The program requires the person's body to be brought to the company as soon as possible after death, but Alcor was not notified until three days after Pilgeram's passing. Because of this, they were forced to do a "neuro-isolation," where only the head is preserved and the rest of the body is cremated because the future may hold the ability to regrow a healthy body around a functioning brain, according to the company's website.

Pilgeram is the company's 125th person to be preserved.

See James Gordon, Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm, Daily Mail, January 18, 2020.

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

 

January 20, 2020 in Current Events, Death Event Planning, Estate Planning - Generally, New Cases, Science, Wills | Permalink | Comments (0)

Sunday, January 19, 2020

Law Student Writing Competition

WritingThe ABA's Section of Real Property, Trust & Estate Law (RPTE) is seeking entries for its Student Writing Contest, which is now entering its 18th year. It offers substantial prizes to its entrants:

The goal of the RPTE student writing contest is to encourage and reward law student writing on the subjects of real property or trust and estate law. It is designed to attract students to these law specialties and to encourage scholarship and interest in these areas. Articles submitted for judging are encouraged to be of timely topics and have not been previously published. This contest is open to all law and LL.M students currently attending an ABA-accredited law school. Entries must be received by the Section not later than May 31, 2020.

1st place:

  • $2,500 award
  • A full-tuition scholarship to the University of Miami School of Law's Heckerling Graduate Program in Estate Planning OR Robert Traurig-Greenberg Traurig Graduate Program in Real Property Development for the 2019–2020 or 2020-2021 academic year.
  • Free round-trip airfare and hotel accommodations to the RPTE Fall Leadership Meeting, November 14–16, 2020 in San Juan, PR. This is an excellent meeting to network with RPTE leadership!
  • One-year free RPTE membership
  • Consideration for publication in The Real Property, Trust and Estate Law Journal, the Section's law review journal, which is mailed to 25,000 RPTE members
  • Name and essay title will be published in the eReport, the Section's electronic newsletter

2nd place:

  • $1,500 award
  • One-year free RPTE membership
  • Consideration for publication in The Real Property, Trust and Estate Law Journal, the Section's law review journal, which is mailed to 25,000 RPTE members
  • Name and essay title will be published in the eReport, the Section's electronic newsletter

3rd place:

  • $1,000 award
  • One-year free RPTE membership
  • Consideration for publication in The Real Property, Trust and Estate Law Journal, the
  • Section's law review journal, which is mailed to 25,000 RPTE members
  • Name and essay title will be published in the eReport, the Section's electronic newsletter

Students must apply and be admitted to the graduate program of their choice to be considered for the scholarship. Applicants to the Heckerling Graduate Program in Estate Planning must hold a J.D. degree from an ABA accredited law school and must have completed the equivalent of both a J.D. trusts and estates and federal income tax course. Applicants to the Robert Traurig-Greenberg Traurig Graduate Program in Real Property Development must hold a degree from an ABA accredited law school or a foreign equivalent non-US school.

Visit the University of Miami School of Law webpage for further information on the graduate programs.

January 19, 2020 in Current Events, Estate Planning - Generally, Writing Competitions for Students | Permalink | Comments (0)

Saturday, January 18, 2020

Rich People Don’t Just Live Longer. They Also Get More Healthy Years.

SandtimerPaola Zaninotto, a professor of epidemiology and public health at University College London, was a lead author a recent study published in The Journals of Gerontology: Series A. The study showed that the wealthy live longer and also have eight to nine more healthy years after 50 than the poorest individuals in the United States and in England.

The study analyzed data two existing data sets containing more than 25,000 people over 50. Instead of income, the study defined wealth as the person's financial assets such as their home and possessions, minus their debts. For Americans, the average wealth was $29,000 for the poorest group, $180,000 for the middle group and $980,000 for the richest group, Dr. Zaninotto said.In both countries, wealthy women tended to live 33 disability-free years after age 50 and wealthy men 31 disability-free years, while those that were poor eight to nine years less healthy years.

Race, social class and education level did not have any measurable effect on the results, but wealth did. “More wealth means it’s easier to get to your appointments and access additional services that would not be available to people with less,” said Dr. Corinna Loeckenhoff, who was not involved in the study and is the director of the Healthy Aging Laboratory at Cornell University. But there are other factors to consider in one's longevity, such as a healthy diet, exercise, and reducing stress. The researchers had previously found that older Americans tended to be less healthy than older Britons, largely because of obesity.

See Heather Murphy, Rich People Don’t Just Live Longer. They Also Get More Healthy Years., New York Times, January 16, 2020.

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

January 18, 2020 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)

Friday, January 17, 2020

Avid Fisherman's Family Honors his Memory by Bringing Boat into Funeral Home

Boatfuneral37-year-old Nathaniel Frey of Hellertown, Pennsylvania passed away on New Year's Eve at a local hospital. His family made sure that his most passionate hobby - fishing - was made aware to the funeral director, David Heintzelman. 

For the viewing on January 3, Frey’s casket was placed inside Frey’s own 16-foot aluminum fishing boat, which had been passed down from his grandfather and father. His casket was then transported from the church to the cemetery in his brother Jeremy's fishing boat. Joshuah Thompson, Frey's cousin, believed that he would be highly pleased with the service, claiming that Nathaniel had once texted him, "When It’s My Time, Take Me In My Fishing Boat."

Frey's family and friends are now planning to continue his annual fishing trip up to the Salmon River in Oswego County, a tradition he had been leading for the past 15 years. He was survived by his wife and two children.

See Alexandra Deabler, Avid Fisherman's Family Honors his Memory by Bringing Boat into Funeral Home, Fox News, January 16, 2020.

January 17, 2020 in Current Events, Estate Planning - Generally, Humor | Permalink | Comments (0)

Article on Discretionary Dilemma: Trustee Consideration of Beneficiary Financial Resources

Trusts2Jacob L. Geierman recently published an Article entitled, Article on Discretionary Dilemma: Trustee Consideration of Beneficiary Financial Resources, Probate & Property Magazine, Vol. 34 No. 1 (Jan/Feb 2020). Provided below is the introduction to the Article.

Trust instruments often provide trustees with discretion to distribute trust assets to or for the benefit of the beneficiaries. By their nature, discretionary trusts often create difficulties in ongoing administration. One common, but often overlooked, difficulty is administrating discretionary trusts is determining whether and how the trustee should consider beneficiary financial resources when making discretionary distributions.

January 17, 2020 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

'Death with Dignity' Bill Proposed in Indiana

IndianaIndiana Democratic Representative Matt Pierce out of Bloomington has presented a bill that would terminally ill patients with 6 months or less to live the option to die on their own terms. But this is not the first year that he has done it. He has proposed the bill every year since 2016 - the year a popular blogger from Indiana passed away after a 2 year battle with ovarian cancer.

Pierce says that the bill is modeled after the current bill in Oregon. The patient must request the medication twice, in writing, with a 15-day waiting period between the requests, plus be subject to psychological evaluations to determine that they are mentally competent.

"Why can't I have some control over my own dignity and my own body? Why can't an individual have that option if they want to exercise it," Pierce said. He also commented that some Republican colleagues are afraid to talk about the topic because it is controversial and may not sit well with social conservatives that believe that any type of assisted suicide is morally wrong.

See Jennie Runevitch, 'Death with Dignity' Bill Proposed in Indiana, WTHR.com, January 16, 2020.

January 17, 2020 in Current Events, Death Event Planning, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Thursday, January 16, 2020

Taxation and Gender Equality Conference: Research Roundtable and Policy Program

CLETaxation and Gender Equality Conference: Research Roundtable and Policy Program, September 14-15, 2020.

Deadline for Expressions of Interest: March 15, 2020

As the Organizers and members of the Academic Advisory Committee we are pleased to issue this Announcement and Call for Contributions to an event that will be held on September 14 and 15, 2020, in Washington, DC, to explore the interaction between tax law and gender equality. The goal of the Conference, which is sponsored by the Tax Policy Center, the American Tax Policy Institute, the American Bar Foundation, and, subject to the final approval of their boards, the Tax Section of the American Bar Association and the American College of Tax Counsel, is to shine a spotlight on gender issues in taxation and to bring consideration of gender impacts into mainstream discussions surrounding the enactment and administration of tax laws. The intended scope of the Conference is broad, focusing not only on gender issues in U.S. tax law but also on gender issues in the tax laws of other countries; it will consider all taxes, whether income, consumption, transfer, wealth, or other national-level taxes, as well as subnational taxes.

The Conference will begin on Monday, September 14, 2020 at the Washington, DC, offices of Pillsbury Winthrop Shaw Pittman with a research roundtable featuring principally academic papers. The research roundtable will follow the format typical of academic conferences, providing ample time for conversation among participants.

The second day of the Conference, Tuesday, September 15, 2020, will be held at the Urban-Brookings Tax Policy Center, also in Washington, DC. It will consist of a policy-oriented program of panel discussions bringing together academics, practicing attorneys, economists, policy makers, legislators and others to consider issues related to gender and taxation and to consider strategies for incorporation of gender-related concerns into everyday tax policy discourse. At least one panel will feature the recent work undertaken by the National Women’s Law Center exploring the relationship between taxation and gender (see https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2019/11/NWLC-Tax-Executive-Summary-Accessible.pdf).

We are now seeking participants interested in contributing either to the research roundtable or to the policy program (or to both). Participants can be legal academics, economists, legal practitioners, government officials, policy researchers, or others with an interest and expertise in tax law and its administration. Contributors from the United States as well as other countries are welcome.

Scholars, analysts and policymakers of all levels of seniority and from all disciplines are invited to submit proposals for consideration for inclusion in panel discussions. We expect that for each day of the program, there will be approximately 5-10 speaking slots available. Contributions to be presented at the research roundtable should be works in progress, not published (or committed to publication) prior to the conference. Contributions to be presented as part of the policy program may be works in progress or may be work published (or committed to publication) prior to the conference. A brief description of possible panel topics to be addressed in the policy program is provided below; please understand that this listing is intended to provide directional guidance on possible panel and research paper topics and should not be viewed as limiting the potential issues to be addressed.

Those interested in presenting at either the research roundtable or the policy program portion of the Conference should send an abstract of no more than 500 words describing their proposed presentation, an indication of whether the proposal is for the research roundtable or the policy program, and a copy of their CV to Alice Abreu at taxandgender@temple.edu. If the proposed panel presentation is based on a published or soon-to-be-published work, please also attach a copy or draft of the work. Expressions of interest are due by March 15, 2020. The Academic Advisory Committee expects to notify accepted participants by May 1, 2020. Accepted participants should submit circulation drafts of the work to be presented no later than August 14, 2020. Selected participants may be invited to publish their completed papers in The Tax Lawyer or may choose to publish elsewhere. (The Tax Lawyer is the flagship scholarly journal published by the Tax Section of the American Bar Association and is published in cooperation with the Graduate Tax Program of the Northwestern University Pritzker School of Law; it has a robust circulation both in print and through electronic access).

Limited funding may be available for reasonable travel expenses of those selected to present their work; in your expression of interest please indicate whether you will need financial assistance to participate in this event. There is no fee for attending the conference. The conference will be webcast and is open to members of the public.

We look forward to hearing from many interested potential contributors.

Organizers: Julie Divola (Pillsbury Winthrop Shaw Pittman and American Tax Policy Institute), Elaine Maag (Tax Policy Center), and Alice Abreu (Temple Center for Tax Law and Public Policy and American Tax Policy Institute)

Academic Advisory Committee: Alice Abreu (Temple), Bridget Crawford, (Pace) Anthony Infanti (Pittsburgh), Ariel Jurow Kleiman (San Diego), and Stephen Shay (Harvard)

POSSIBLE DISCUSSION TOPICS

The following is a representative list of panel topics for the policy program. Final panel topics will be determined based upon the abstracts received in response to this Call for Contributions.

    • In general: A review of the positive and negative (intentional and unintentional) impacts of tax laws on gender equality, including a broad discussion of the form such tax laws can take (e.g., the marriage penalty, deductions or exemptions for entrepreneurial efforts, consumption vs. income taxes, wage withholding taxes, pink taxes, corporate tax expenditures).
    • Impacts of U.S. tax laws on gender equality. Possible topics for separate panels include:
      • Specific issues under the TCJA.
      • A comparisons of gender equality issues as reflected in the tax reform proposals advanced by the current presidential candidates.
    • One or more topics covered in three interrelated reports prepared by the National Women’s Law Center (NWLC) that examine the federal tax code with a focus on gender and racial equity and explore policies to make the tax code work for everyone. (See (i) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, (ii) Reckoning with the Hidden Rules of Gender in the Tax Code: How Low Taxes on Corporations and the Wealthy Impact Women’s Economic Opportunity and Security and (iii) The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws at https://nwlc.org/resources/gender-and-the-tax-code/.) The papers were prepared by NWLC in collaboration with Groundwork Collaborative, the Roosevelt Institute, and the Georgetown Center on Poverty and Inequality.
    • Impact of U.S. tax administration (including collection and other enforcement efforts) on gender equality (e.g., innocent spouse relief).
    • Discussion of the economic impact of tax laws that influence gender equality (e.g., distributional effect on how income is distributed between the sexes and allocative effect on how paid and unpaid labor is allocated between the sexes). General discussion of the connection between gender equality and economic growth.
    • Examination of tax systems in countries that have historically been more thoughtful than the United States on the question of taxation and gender equality, including measures such countries have taken to advance the issue. For example, the German Technical Cooperative has a program to support OECD partner countries in their efforts to reform tax policy and tax administration to avoid or eliminate gender bias.
    • Examination of the impact of tax laws on gender equality in developing countries. For example, the International Centre for Tax and Development with support from the Bill and Melinda Gates Foundation has done research in this area.
    • Use of gender-neutral language in the tax law and government publications and encouraging equivalent use of names that suggest male, female, and indeterminate genders and the accompanying pronouns.

January 16, 2020 in Conferences & CLE, Current Affairs, Estate Planning - Generally, Income Tax | Permalink | Comments (0)