Saturday, April 30, 2005
An innovative casebook entitled Family Wealth Management edited by Grayson McCouch and Bill Turnier will be published in May by West.
Prof. McCouch describes the book as follows:
The book is intended for teachers who wish to offer a basic course in financial investing and planning for law students. The materials range well beyond the conventional estate planning syllabus and cover topics such as housing, higher education, life and disability insurance, and retirement planning.
Here is a link to the title page, preface, and table of contents of this exciting new book.
Friday, April 29, 2005
In yesterday's USA Today (April 28, 2005), an almost full-page story discusses the popularity of living will or "grim reaper" parties. These parties, similar to Tupperware and lingerie parties, are designed to assist people prepare living wills and related documents.
The article even provides guidelines on how to host such a party. The recommendations include to:
- Invite adult family members and neighbors.
- Consider having guests bring a covered dish for a "pot luck" meal.
- Have extra copies of the forms available so attendees may bring copies to individuals who could not attend.
- Arrange for a facilitator or expert (doctor or lawyer) to attend.
- Comply with state law formalities such as witnessing and/or notarization.
Thursday, April 28, 2005
Earlier on this blog, I discussed a children's book with a tremendous number of estate planning themes.
I have just discovered that this book, along with others in the same series, was made into a movie which was released in December 2004 entitled Lemony Snicket's A Series of Unfortunate Events.
Perhaps I should rent the DVD and see if the movie retained these themes. But, with exams to grade, it is not high on my "to do" list.
If you have viewed the movie, let me know what you think!
In Estate of Herbert v. Herbert, 152 S.W.3d 340 (Mo. Ct. App. 2004), the court held that the statutory prohibition on an agent making gifts to him or herself absent express authorization in the power of attorney applies to a deposit of the principal’s funds by the agent into a joint and survivorship account belonging to the principal and the agent. The court also indicated that oral permission from the principal is not sufficient.
Thanks to Prof. William LaPiana for bringing this case to my attention.
Wednesday, April 27, 2005
"How much intent does the decedent need to show to enable an apparently limited income interest to qualify for the qualified terminable interest property (QTIP) marital deduction?"
This is the issue carefully analyzed in Prof. Wendy Gerzog's article Davis and Whiting: QTIP Income Interests and Intent, 106 Tax Notes 1597 (Mar. 28, 2005). The article reviews two recent cases and a recent Technical Advice Memorandum that have grappled with this issue.
I have written about the ability to make provisions for a pet animal in an estate plan.
Doug Cowan, one of my most diligent students, just pointed out to me that in Turin, Italy, a dog owner can be fined up to $650 if the owner does not take the dog for at least three walks per day.
Some dog owners probably don't go for that many walks themselves!!
Tuesday, April 26, 2005
In Saigh It Isn't So, 107 Tax Notes 115 (Apr. 4, 2005), Prof. Wendy Gerzog examines the Saigh case.
In Saigh, while conceding transferee liability up to the value of the property transferred to her from the decedent’s estate, the estate beneficiary argued that she was not liable for interest.
The article reviews the opposing holdings in the Eleventh and Eighth Circuit’s holdings in the brothers’ Baptiste cases on the same section 6324 issue. In addition, the article examines the fiduciary liability cases wherein the Tax Court reached opposite conclusions from its holding in Baptiste.
The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 05-434 which address conflicts which may arise when an attorney represents several members of the same family in estate planning matters.
The Opinion validates the common practice of one lawyer representing several members of the same family. The basis of this authorization is that the interests of the parties may not be directly adverse and that more than conflicting economic interests are needed before the attorney may not represent both.
The Opinion recognizes, however, that current conflict of interest may result even without direct adversity if there is a significant risk that representation of one client will materially limit the representation of another.
Despite the “permission” granted by this Opinion, I continue to think the representation of more than one family member in estate planning matters is problematic. A potential conflict may turn into a real conflict at a later time leaving the attorney in an untenable position. It is simply not worth the risk. I believe it is better for a lawyer to owe 100% of his or her duties to one and only one family member. There will then never be doubt whom the attorney represents or what actions the attorney should take if something “gets sticky,” True, practitioners may lose some business and some clients may have higher legal fees but I believe this is preferable to the alternative.
Monday, April 25, 2005
One of my eclectic students, Graham Smith, recently recommended that I read a children’s book entitled The Bad Beginning by Lemony Snicket because of its thematic elements revolving around various aspects of estate planning.
I followed his advice and read the book. It is unlike any children’s book I have ever read. Ominously, the book begins with following warning, “If you are interested in stories with happy endings, you would be better off reading some other book.”
The book revolves around the lives of three children who by page eight lose their loving and wealthy parents in a tragic fire. The orphans are then sent to a distant relative who forces them to live in unsanitary conditions and perform child labor. The relative makes matters worse by engaging in acts of child abuse such as beating a child, forcing a fourteen year old child into marriage, binding, gagging, and confining an infant, making death treats, and committing other heinous acts.
Despite the nightmares this book may cause its tender readers (like me) to have, the book provides a tremendous boost to the value of a legal education and that it is never too early to start. The older children find a way to access and study law books. The legal knowledge they gain leads to the very happy “almost” ending. (Things get worse after the author’s warns, “If you like, you may shut this book this instant and not read the unhappy ending that is to follow.”)
Here is a sampling of the wills, estates, and trusts topics covered in this book:
- Trusts (Not referred to by name but by concept, “I will be handling [your parents’] enormous fortune [and] [w]hen [oldest child] comes of age, the fortune will be yours, but the bank will take charge of it until you are old enough.”)
- Degrees of relationship (e.g., third cousin four times removed)
- Naming of guardians in a will
- Inheritance law
- Marital (“nuptial,” as it is called in the book) law
- In loco parentis
By a close vote of 183-136, Spain’s lower house of parliament approved a bill which would permit same-sex couples to enter into unions which give them the same rights as different-sex couples such as the right to inherit.
Two other European nations, Belgium and the Netherlands, have already enacted similar legislation.