Wills, Trusts & Estates Prof Blog

Trust Law Conference

The Cardozo Law School in New York City is sponsoring an academic conference entitled Trust Law in the 21st Century on September 19, 2005.  Profs. Melanie B. Leslie and Stewart Sterk are chairing the conference.

The conference will address three rapidly evolving issues in trust law:

(1) the growth of the perpetual trust, fueled by the demise of the Rule Against Perpetuities,

(2) the move by many states and offshore jurisdictions to increase the availability of trusts for asset protection purposes, and

(3) changing conceptions of fiduciary duty.

Because of generous support from the Jacob Burns Institute for Advanced Legal Studies and the American College of Trust and Estate Counsel Foundation of Los Angeles, California, there is no cost to attend the conference.  Advance registration is recommended.

Inheritance Rights of California Domestic Partners Preserved

California Family Code § 297.5(c) provides:

A surviving registered domestic partner, following the death of the other partner, shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower.

This statute was challenged by the State of California in Knight v. Superior Court, 128 Cal. App. 4th 14, 26 Cal. Rptr. 3d 687 (2005).  The court determined that the statute "did not constitute an amendment of Proposition 22 [marriage is only between opposite-sex individuals]; that the statute thus became effective without separate approval by the electorate; and, therefore, that section 297.5 is not void."

Yesterday (June 29, 2005), the California Supreme Court unanimously declined to review the lower court's opinion which, among other things, preserved the right of a surviving domestic partner to inherit from the deceased domestic partner in the same manner as a surviving spouse.

Teacher's Manual -- Wills, Trusts, and Estates -- 7th edition

Here is an excerpt from a recent e-mail I received from Prof. Robert H. Sitkoff, one of the co-authors of the 7th edition of Wills, Trusts, and Estates by Dukeminier, Johanson, Lindgren, and Sitkoff:

The Teacher's Manual is ready.  Microsoft Word versions are available for instructors from Aspen by emailing [email protected] or calling a sales assistant at 1-800-950-5259.  Or instructors can email me ([email protected]) and I'll forward the files.  The printed copy is being prepared and will ship next month.  The Manual contains a transition guide, syllabus notes, and summary and analysis of the material in the text.

The Free House Nightmare

Winning the house of Don's dreams has turned into a nightmare.  Don won a $1.5 million 5,000 square foot house on Lake Tyler in Texas in the Home and Garden Television (HGTV) Dream Home Sweepstakes.

Prizes such as these do not qualify as gifts for tax purposes.  Instead, they are consider income.  Accordingly, Don, who is unemployed, owes over $600,000 in income taxes plus over $30,000 in property taxes.

Don wanted to raise money by converting part of the home into a bed and breakfast but local zoning laws prohibit the commercial use of the land.  His attempt to obtain a variance failed.

Thus, it appears likely that Don will have to sell the home just like every other winner (except one) of this contest.  Of course, the sales price should exceed what he owes and thus he should still have a substantial amount of money to buy a small dream home.

See Tyler HGTV Dream Homes Becoming Nightmares For Winner, NBC5i.com, June 23, 2005.

This just provides further evidence of the old saying, "There is no free lunch."

Estate Planning and Guardianship CLE in Galveston

The 7th Annual Intermediate Estate Planning, Guardianship and Elder Law Conference sponsored by the University of Texas is scheduled for August 11-12, 2005 at the beautiful Moody Gardens Hotel in Galveston, Texas.

The course brochure states:

This is a comprehensive, unique conference providing practical advice and solutions to the problems arising with clients of modest to moderate wealth. This year’s conference includes a legislative update and sessions on Medicare prescription drug benefits, Medicaid strategies and multiple presentations on guardianship, including a “Guardianship Mock Trial.”

For more details, view the program and list of speakers.  Registration is available on line.

June 2005 Issue of RPPT Bulletin Available

The June 2005 issue of the ABA's RPPT Bulletin is now available.  Here is a list of some of the highlights:

• Circular 230:  Discussion of this IRS mandate which "compels practitioners to meet extensive requirements for written communications (even emails) that are 'covered opinions.'"  Included are links to materials providing extensive discussions of this issue.
• Pro Bono Committee Workshop
• New Book:  The Funding of Living Trusts by Carla Neeley Freitag.
• Toolkit:  Copies of Lawyer's Toolkit for Health Care Advance Planning are available free of charge.
• Attorney-Client Privilege:  Establishment of ABA Presidential Task Force on the Attorney Client Privilege.

Keep Close Hold on Your Teaching Position!!

Sara K. Stadler, an assistant professor at Emory, has prepared an article entitled The Bulls and Bears of Law Teaching which is describe on SSRN as follows:

This Essay provides readers with a unique perspective on the world of law teaching: Employing a quirky methodology, Professor Stadler predicts which subjects are likely to be most (and least) in demand among faculties looking to hire new professors in future - rating those subjects, like so many stocks, from "strong buy" to "weak buy" to "weak sell" to "strong sell". To generate the data on which her methodology is based, Professor Stadler catalogued, by subject, almost every Article, Book Review, Booknote, Comment, Essay, Note, Recent Case, Recent Publication, and Recent Statute published in the Harvard Law Review between and including the years 1946 and 2003. In the end, she found an interesting (and, she thinks, predictive) relationship between the subjects on which faculty choose to write and the subjects on which students choose to write.

Prof. Stadler's results do not bode well for wills, trusts, and estates professor-want-to-bes -- she ranked our field as a "strong sell."  Here is an excerpt from her discussion:

Why would I include these two curves [admiralty and trusts/estates] on the same chart? They have at least one thing in common: Since 1989, both curves look like the heart monitor of a terminal patient; although the heart may be beating, however feebly, for trusts and estates, the doctor called a “code” in admiralty law more than a decade ago.  This is not to say that these courses are uninteresting; at Emory, at least, both are taught by popular professors, and both are well subscribed. But they are not oversubscribed, and class sizes are modest. If nothing else, this chart shows that law schools are making efficient use of their resources in admiralty law and trusts and estates. There is, to use an economics term, equilibrium between supply (on the faculty side) and demand (on the student side). Even when it comes to hiring, my handful of law schools may have gotten this one right: 0 in admiralty; 4 (.92% of the total) in trusts and estates.

My advice to hopefuls in these subjects is this: You know who you are. Find the people like you; wait for them to retire; and replace yourselves in the population.

Medicaid Proposals

In her article, In Effort to Pare Medicaid, Long-Term Care Is Focus, NY Times, June 27, 2005, Jane Gross reviews the proposals currently under consideration to reduce Medicaid expenditures, especially for individuals who "plan to be poor" so they can get on the Medicaid dole rather than pay for care using their own funds.

These proposals include the following:

• Extend look-back period to five years from the current three years for non-trust transfers.
• Require homeowners to obtain a reverse mortgage to finance care.
• Mandate that states obtain liens on the homes of nursing facility residents to make certain costs are reimbursed when the homeowners die.
• Create tax credits and/or deductions to encourage people to purchase long-term care insurance.

Hawaii Adopts Pet Trust Legislation

On June 24, 2005, the governor of Hawaii, Linda Lingle, signed legislation authorization pet trusts.  2005 Hawaii Laws Act 160 (adding a provision to Chapter 560).

This statute is an enhanced version of Uniform Probate Code § 2-907.

Gov. Lingle stated during the signing ceremony, "These aren't just pets. These are a part of the family. You miss them when you're away. You worry about them. They really are important parts of your life."  Tara Godvini, Hawaiian Pets Gain Right of Inheritance, Associated Press, June 25, 2005.

Illinois -- Advance Directives and Will Contest Standing

Two articles focusing on various aspects of Illinois law, including useful material for non-Illinois estate planners, appear in the June 2005 issue of the Illinois Bar Journal.

• Helen W. Gunnarsson, Help Your Client Choose the Right Advance Directive, 93 Ill.B.J. 284 (2005).
• Ray J. Koenig III and Adam S. Kornblatt, Disappointed Would-Be Legatees: Who Has Standing to Contest a Will?, 93 Ill. B.J. 294 (2005).