Wills, Trusts & Estates Prof Blog

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

Tuesday, September 26, 2006

"Fill Out the Policies, Mother"

You may enjoy listening to a novelty song, sung in barbershop quartet style by Sherman & Larsen, entitled Fill Out the Policies, Mother.

Here are the lyrics:

It's just a formality, mother,
Sign on the dotted line.

Fill out the policies, mother,
Twenty-five cents at a time.

Last year daddy died
Of a strange malady,

Now sister is gone,
There's just you and me ...

So fill out the policies, mother,
Insurance should not be ignored.

You've signed it and so,
There's one more to go,

Here's your box-lunch,
Now hurry aboard.

Just one more formality, mother,
Here's your unsigned will.

Strange, how I found the thing with me,
Does your fountain-pen need a refill?

And, finally now, here's your property deed.
Your power-of-attorney is all that i need.

So, fill out the papers, dear mother,
And you will rest easy tonight,

Knowing if you should die,
I'll be one wealthy guy!

Here's your box-lunch,
Now get on that flight!

Special thanks to H. Carter Hood of the Washington, D.C. firm of Ivins, Phillips & Barker for bringing this song to my attention.

September 26, 2006 in Humor | Permalink | Comments (0) | TrackBack (0)

Cremains Scattered -- But That Wasn't the Plan

Yesterday (September 25, 2006), a privately-funded rocket (SpaceLoft XL) was to take a payload which included cremated remains (along with a bag of Cheerios and some high school science projects) into a 13-minute suborbital flight.  The rocket was then supposed to parachute back to earth.

But, something went wrong, very wrong.  The rocket malfunctioned and crashed to the ground scattering the payload, including the cremains, over the New Mexican desert.

See Associated Press Rocket crashes after NM spaceport launch (Sept. 26, 2006).

September 26, 2006 in Current Events, Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Monday, September 25, 2006

Rachel Hirschfeld Offers Pet Trust Services

Estate planning for pet owners has been discussed several times on this blog.  I have just learned that New York attorney Rachel Hirschfeld has created a website, Pet-Trust.net, which is

dedicated to the animals we love and to their owners who want to make certain that when they can no longer take care of their loyal and loving pets, an enforceable legal plan is in place to protect and provide for their animal companions. * * *

Rachel Hirschfeld is a nationally recognized estate and trust attorney who is committed to protecting the animal companions who enrich our lives. Her mission is to educate pet owners and those who advise them as to how to protect the lives of pets when owners are no longer able to do so.

September 25, 2006 in Technology, Trusts | Permalink | Comments (0) | TrackBack (0)

Illinois Power of Attorney Law Provides Tool to Fight Elder Abuse

In POA amendments help protect incapacitated principals, 94 Ill. B.J. 462 (2006), Helen Gunnarson explains that a recent amendment to the Illinois Power of Attorney Act "empowers the Department of Aging and its provider agencies to go to court to require agents to produce their records, which will help authorities identify and stop abuse."

September 25, 2006 in Articles, Disability Planning - Property Management, Elder Law | Permalink | Comments (0) | TrackBack (0)

Anatomical Gifts -- Lung Policy Changes Enhance Survival

The following excerpts are from Denise Grady, Lung Patients See a New Era of Transplants, NY Times, Sept. 24, 2006:

A quiet revolution in the world of lung transplants is saving the lives of people who, just two years ago, would have died on the waiting list.  * * *

Starting in May 2005, new rules nationwide put patients who needed transplants most at the top of the list — people who would soon die without a transplant, but who had a good chance of surviving after one.

Previously, lungs went to whoever had been waiting longest, even if another patient needed them more. The waiting time was often two years or more, so there was little hope for people with lung diseases that came on suddenly or progressed rapidly.

Another major change is that more lungs from cadavers have become available, for two reasons: more people are becoming organ donors, and doctors have figured out ways to salvage lungs that previously would have been considered unusable. The new methods use drugs, respirator settings and other techniques to prevent damage to the lungs and keep their tiny air sacs open in brain-dead patients.

In the past, lungs could be retrieved from only about 15 percent of organ donors, but at some centers the rates have risen to 40 percent.

September 25, 2006 in Current Events, Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Sunday, September 24, 2006

Top SSRN Downloads

Ssrn_21 Below are the top downloands from July 26, 2006 to September 24, 2006 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank Downloads Paper Title
1 319 Family Limited Partnership Formation: Dueling Dicta
Mitchell Gans, Jonathan G. Blattmachr,
Hofstra University - School of Law, Milbank, Tweed, Hadley & McCloy LLP,
Date posted to database: August 2, 2006
Last Revised: September 12, 2006
2 77 Super-Recognition and the Return-to-Sender Exception: The Federal Income Tax Problems of Liquidating the Family Limited Partnership
Samuel A. Donaldson,
University of Washington - School of Law,
Date posted to database: August 23, 2006
Last Revised: August 23, 2006
3 68 The JEC’s Estate Tax Report: Myths and Legends
Neil H. Buchanan,
Rutgers School of Law - Newark,
Date posted to database: June 8, 2006
Last Revised: June 8, 2006
4 64 Why Shouldn't I be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How I Learned to Stop Worrying and Start Loving the French)
Terry L. Turnipseed,
Syracuse University College of Law,
Date posted to database: June 23, 2006
Last Revised: June 23, 2006
5 62 Rights of the Dead
Kirsten Rabe Smolensky,
University of Arizona - James E. Rogers College of Law,
Date posted to database: August 16, 2006
Last Revised: August 16, 2006
6 55 Valuing Corporations for Estate Tax Purposes: A Blount Reappraisal
Adam Chodorow,
Arizona State University - College of Law,
Date posted to database: August 16, 2006
Last Revised: August 16, 2006
7 38 The Collision Between CRTs and the UPC Elective Share
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: June 8, 2006
Last Revised: August 2, 2006
8 28 Defining Life from the Perspective of Death: An Introduction to the Forced Symmetry Approach
Kirsten Rabe Smolensky,
University of Arizona - James E. Rogers College of Law,
Date posted to database: August 18, 2006
Last Revised: August 18, 2006
9 26 Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption
Jana B. Singer,
University of Maryland - School of Law,
Date posted to database: August 10, 2006
Last Revised: August 20, 2006
10 16 From Right to Wrong: A Critique of the 2000 Uniform Parentage Act
Mary Patricia Byrn,
University of Minnesota Law School,
Date posted to database: September 6, 2006
Last Revised: September 21, 2006

September 24, 2006 in Articles | Permalink | Comments (0) | TrackBack (0)

Saturday, September 23, 2006

Joint Accounts -- What Law Governs?

The issue in Barboza v. McLeod, 853 N.E.2d 192 (Mass. 2006) was “whether the law of a joint account's situs governs ownership of the proceeds of the joint bank account, where the decedent established the joint account in [California] and died in Massachusetts.”  Helen M. Zaborowski, the deceased, had a joint bank account with her nephew, the defendant Andrew McLeod. Upon her death, McLeod withdrew the funds and closed the account. Stanley Barboza, Helen’s brother and Robert Barboza, her son, were administrators of the her estate.  They sued McLeod, saying that under Massachusetts law, the funds belonged to the estate.

Under California law,"[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent." Cal. Prob.Code § 5302(a)

The Massachusetts court concluded that:

California law applies to determine whether the proceeds of the joint account are nonprobate assets belonging to the defendant, that the plaintiffs have failed to establish by clear and convincing evidence that the decedent did not intend the proceeds of the joint account to go to the defendant on her death, and that the judge erred in admitting certain evidence, we vacate judgment for the plaintiffs and dismiss the underlying complaint.

In addition to citing a number of other jurisdictions that look to the law of the situs rather than the residence at the time of death, the court said that 

California has a substantial interest in ensuring the proper adjudication of joint accounts opened within its borders. Moreover, the record in this case supports the inference that the decedent intended the account to be subjected to the benefits and burdens of California law. Based on the documents and testimony submitted it is clear that, up until her death, the decedent retained her mental acuity, lived independently, and ably managed her personal affairs. Until her death, she continued diligently to maintain the account in California.

September 23, 2006 in New Cases, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Friday, September 22, 2006

Virginia and Pet Trusts

More People Leave Big Inheritances To Fido, Fluffy, KSAT.com, Sept. 20, 2006, provides a discussion of Virginia's pet trust statute which took effect on July 1, 2006.

Estate lawyer Montgomery Knight Jr. said he had one Richmond client who left $2.5 million to a horse. Distant relatives objected and a judge reduced the horse inheritance to $150,000. Knight added that another client left $35,000 for the care of a goose.

Special thanks to Christopher Below for bringing this article to my attention.

For more information of estate planning for pet owners, go here.

September 22, 2006 in Estate Planning - Generally, Trusts | Permalink | Comments (1) | TrackBack (0)

Care Custodians as Beneficiaries

Under California law, “care custodians” are disqualified from benefiting from donative transfers from elderly or disabled persons.  In Bernard v. Foley, 39 Cal. 4th 794 (2006), defendant James Foley and his girlfriend Ann Erman had cared for the deceased, Carmel L. Bosco, in the two months preceding her death.  Three days before Bosco passed away, she executed the seventh amendment to her revocable living trust.  The amended trust made Foley and Erman 50% residuary beneficiaries. Neither of them had been named as beneficiaries in earlier versions of the trust.
In this case we determine whether close personal friends of a dependent elder who at the end of her life provided her with personal care, including health care, are "care custodians" for the purposes of statutory provisions that presumptively disqualify care custodians as beneficiaries of testamentary transfers from dependent adults to whom they provide such services.[***]
We conclude that when an unrelated person renders substantial, ongoing health services to a dependent adult, that person may be a care custodian for purposes of the statutory scheme at issue, notwithstanding that the service relationship between the individuals arose out of a preexisting personal friendship rather than a professional or occupational connection.

September 22, 2006 in Estate Planning - Generally, New Cases | Permalink | Comments (0) | TrackBack (1)

Thursday, September 21, 2006

Late Probate in Kansas

Avis A. Tracy, the deceased, was thought to have died intestate.  However, the co-administrators of the estate, Tracy’s sister and niece, discovered a will three days after the six month statute of limitations for admitting a will to probate in Kansas.  Under the will, Sallie Shore was appointed executor.
On March 9, 2004, the coadministrators filed an amended petition to probate Tracy's will and for the issuance of letters testamentary. This petition stated that Tracy's will had been discovered on February 24, 2004. According to the affidavit of mailing in the record on appeal, notice of the petition to probate the will was sent to Tracy's sister, four nieces, and two nephews. No notice was sent to Shore or the First Christian Church, the beneficiary in Tracy's will.

On February 23, 2005, Shore also filed a petition to probate the will, stating that the will had been "withheld from probate by the actions of the deceased scrivener, who stored the will in an envelope with old, canceled checks and bank statements." Shore stated she "had access to the will for less than 90 days," arguing that it should be admitted pursuant to K.S.A. 59-618. No one disputes Shore's statement that she had access to the will for less than 90 days. The will left the balance of Tracy's estate to Shore, as trustee for the First Christian Church in Wellington, Kansas.
The district court denied probate of the will, saying K.S.A. 59-618 did not apply. Based on the words of the statute, it said that “the wrongdoing of someone who has possession and knowingly withholds a will from probate was a condition which permitted an innocent beneficiary to submit a will to probate beyond the 6-month time limit.”  It said the scrivener in this case did not have possession or knowingly withhold the will, and hence the statute did not apply.  However, the Court of Appeals of Kansas did not agree with this interpretation.
The district court's interpretation of K.S.A. 59-618 is contrary to the underlying intent of the probate code, particularly under the facts of this case; the will was found with the deceased scrivener's papers within a few days after the 6-month limitation period, Shore's petition to probate the will stated that she "had access to the will for less than 90 days," and the coadministrators also petitioned the district court to probate the will. We believe that the language of K.S.A. 59-618, along with the stated intent of the probate code to probate legally executed wills, allows probate of Tracy's will. This case is reversed and remanded to the district court with directions to admit the will to probate.
See In re Estate of Tracy 140 P.3d 1045 (Kan. App. 2006).

September 21, 2006 in Estate Administration, New Cases | Permalink | Comments (0) | TrackBack (1)