Wills, Trusts & Estates Prof Blog

Appellate Court Upholds Anna Nicole Smith's Burial in the Bahamas

A three judge panel of the Florida 4th District Court of Appeals ruled today, February 28, 2007, in the case involving the disposition of Anna Nicole Smith's body.

The court affirmed the trial judge's decision which left the location of Anna's burial up to Dannielynn's guardian. 

According to Court: Bury Anna Nicole Smith in the Bahamas, CNN.com, Feb. 28, 2007,

one of the attorneys for Virgie Arthur, Smith's mother, told CNN there were no plans to appeal to the Florida Supreme Court.

The funeral is now scheduled for 10:30 a.m. on Friday (3/2/07) in the Bahamas.

Special thanks to Prof. Joel C. Dobris of the University of California-Davis for being the first person to bring this development to my attention.

Anna Nicole Smith and the Appellate Court

Earlier today (February 28, 2007), a three judge panel of the Florida 4th District Court of Appeals heard arguments regarding the proper disposition of Anna Nicole Smith's body. 

Although the panel made no decision and did not indicate when it would rule, two judges were impressed with the fact that Anna purchased burial plots in the Bahamas as supporting Dannielynn's guardian's decision to bury Anna in the Bahamas next to her son, Daniel.

If the court rules in the guardian's favor, he plans to have the burial on Friday.  But, Anna's mother, Virgie Arthur, claims she will appeal to the Florida Supreme Court if the panel rules against her.

See Appeals court hears Smith burial arguments, CNN.com, Feb. 28, 2007.

Third Edition of Prof. Campfield's Estate Planning and Drafting Book to be Available in May

Regis Campfield (Marilyn Jeanne Johnson Distinguished Law Faculty Fellow and Professor of Law, Southern Methodist University School of Law), has prepared the Third Edition of his Estate Planning and Drafting book. It will be available for use in Fall 2007 classes.

The publisher (Thomson-West) describes the book as follows:

This is a problems-driven book, meaning that cases and rulings are included as resource materials for use in solving the problems. The materials are arranged in the fashion that individuals think about wealth transmission, beginning with wills, going on to trusts for non-tax reasons, then to tax planning at death and, finally, to lifetime tax planning.

The materials are arranged so that each chapter can be used independently of the chapters which follow or precede it. In each case, the issues are approached transactionally. It is expected that users will customize the materials by selecting those portions of interest to them, utilizing the convenient paragraph numbering system.

February 2007 ABA RPPT eReport Now Available

Here is a listing of the materials available in the February 2007 ABA RPPT eReport:

HECKERLING MUSINGS 2007

Steve Akers condenses the latest Heckerling Institute proceedings into one easy-to-read and well organized article. A must read for all estate planners!

IRS ISSUES RULING ON BUILT-IN LIABILITY

PROPOSED SMALL BUSINESS AND WORK OPPORTUNITY ACT MAY AFFECT EXPATRIATES

IRS ISSUES GUIDELINES ON TREATMENT OF FLPs AND FLLCs

Jim Roberts reports on three recent developments: TAM 200648028 concerning the IRS’ latest ruling on valuation as affected by a built-in liability; the proposed Small Business and Work Opportunity Act, which includes provisions changing the tax rules relating to expatriation to avoid tax; and the IRS’s release of “Appeals Coordinated Settlement Guidelines” for dealing with family limited partnerships and family limited liability companies.

ESTATE OF AMLIE V. COMM'R: MORE ON THE COMPARABILITY REQUIREMENT UNDER I.R.C. §2703

This Tax Court decision that a family settlement agreement will be respected under I.R.C. §2703 is summarized and discussed

Georgia Update

Mary F. Radford (Professor of Law, Georgia State University College of Law) has recently published her article entitled Wills, Trusts, Guardianships, and Fiduciary Administration, 58 Mercer L. Rev. 423 (2006).  In Prof. Radford's words,

This Article describes the significant Georgia cases and legislation from the period of June 1, 2005 through May 31, 2006 that pertain to Georgia fiduciary law. Specifically, the Article covers cases and legislation on matters relating to wills, trusts, the administration of decedents' estates, and the guardianship and conservatorship of minors and incapacitated adults.

Arguments Re Anna Nicole Smith's Body Scheduled for Tomorrow

The Florida 4th District Court of Appeal will hear arguments tomorrow (February 28, 2007) regarding the proper burial location for Anna Nicole Smith's body.

A three-judge panel is expected to hear the case.  The court has not indicated when it intends to rule.

See Anna Nicole Smith burial case heads to appeal, USA Today, Feb. 27, 2007.

California Casebook -- Prof. Shafiroff Authors New Edition

Ira L. Shafiroff (Professor of Law, Southwestern Law School) has recently published the second edition of his casebook entitled CA Wills and Trusts, Fundamental Principals, Ethical Considerations, and Moral Concerns.

The publisher describes the book as follows:

California Wills and Trusts uses a traditional case method anchored specifically to the California Probate Code. Included throughout are California Law Revision Commission comments and explanatory notes. The text focuses on California law for both wills and trusts, but for trusts, also gives full treatment for other lines of authority, thus ensuring complete coverage for the California Bar Exam (which requires California law for wills questions, but general legal principles for trusts questions).

Adult Adoption Examined

Angela Chaput Foy (Associate, Halling & Cayo, S.C., Milwaukee, Wisconsin) has recently published her article entitled Adult Adoption and the Elder Population, 8 Marq. Elder's Advisor 109 (2006).

Here is the introduction to her article:

Elder adults face challenges that are unique to their current stage in life. Their health, means of income, and daily routine all may have changed from earlier periods in their life. With these changes, elders also may reevaluate their relationships. Adult adoption may be an option for elder adults who wish to form a familial relationship with someone to whom they are not currently related.

The first section of this article explores adult adoption: what it is, how it works and how it differs from minor child adoption. The second section then examines how adult adoption may affect the elder population: through traditional and non-traditional inheritance, formalizing relationships, and grandparents' rights. Lastly, the article reveals the risks that elders may face because of their involvement in an adult adoption. Although this article does recognize adult adoption as a means to form non-traditional families, it does not discuss adult adoption as a substitute for marriage; therefore, it does not discuss adult adoption as it may apply to homosexual couples.

Domestic Asset Protection Trusts -- Big Deal Over Nothing?

Darsi Newman Sirknen (Associate, Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, Tennessee) has recently published her article entitled Domestic Asset Protection Trusts: What's the Big Deal?, 8 Transactions 133 (2006).

Here are a few excerpts from her article:

Within the last decade, a few American states have enacted legislation allowing self-settled spendthrift trusts, or "asset protection rusts" ("APTs"). Before these statutes were enacted, a number of foreign countries recognized these trusts, but they had never before been recognized in the United States. Professors, practicing lawyers, and other scholars have written numerous articles concerning this relatively new device. Several of these articles have been negative, expressing outrage that such "court and creditor thwarting" trusts that are "an affront to the public policy of the other ... states" have moved from their traditional offshore homes to take up residence in the United States. But is all the outrage really justified? This paper examines the domestic APT and offers the conclusion that the APT is worth far less attention than authors recently have given it. * * *

Many authors express outrage that some states now allow wealthy settlors to retain the enjoyment of their property while their creditors go unsatisfied. Some essentially predict the country's moral downfall due to this horrendous new "trick" up the sleeves of wealth protection planners. But is all the outrage really warranted? One professor has stated, "The treatment of spendthrift trusts can make a nice legal point ... but it strains credibility to believe that a change in the law will affect more than a handful of people each year." As of 2003, a little over five years after the first APT legislation became effective, a Delaware practitioner estimated that "a few hundred" Delaware APTs had been created with a market value exceeding $2 billion.  He also indicated that "several" Nevada APTs and "a few" Rhode Island APTs had been created.  An Alaska practitioner estimated that 310 nonresidents and 125 residents of Alaska had created Alaska APTs.  It is almost certain that more trusts have been created in the last couple of years, but these numbers are still not astronomical considering the total population of the United States, or even the population of the APT states alone. Despite hundreds of trusts being created, however, the author has been unable to find any case in which a creditor has brought a challenge to a domestic APT. In addition, the number of bankruptcy filings in Alaska from 1997 to present and in Utah from 2003 to present has remained roughly the same.  Statistics from Delaware show that the number of bankruptcy filings between 1997 and 2001 nearly doubled, but this could be due to the introduction of a new computer system in 2001 that does not continue to track cases filed and resolved prior to that date. In any case, this information may indicate that perhaps the settlors of these trusts really have legitimate motives other than thwarting courts and creditors. And for those few settlors who intend to abuse the system (for there will always be abuse, whether it is of the APT system, available tax planning devices, or something else), there are other disincentives more powerful than negative APT commentary.

Anna Nicole Smith's Body to Remain in Florida

Earlier today, February 26, 2007, Judge Seidlin refused to reconsider his ruling giving control over Anna Nicole Smith's body to Dannielynn's guardian.

Virgie Arthur, Anna's mother, filed an appeal with the Florida 4th District Court of Appeal which agreed to hear the case.  The case is on a fast track due to the deterioration of Anna's body.  The attorneys in the case have until 2:00 p.m. EST tomorrow, February 27, 2007, to respond to Virgie's appeal.

The appellate court also issued a stay preventing Anna's body from being removed from Florida.

Virgie claims that it would be too inconvenient for her to travel to the Bahamas to visit Anna's grave.

See Appeals court blocks Bahamas burial for Smith, CNN.com, Feb. 26, 2007.