Wills, Trusts & Estates Prof Blog

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

Tuesday, June 26, 2007

Where is my son's brain?

Mark Hansen, The Body in Question, ABA J. e-Report, June 22, 2007, discusses the Ohio case of Albrecht v. Treon. In 2001, Christopher died and, as required under local law, an autopsy was performed.  However, Christopher's parents did not discover until five years later that Christopher was buried without his brain because tests on his brain had not yet been completed.  After the testing was complete, the brain was incinerated with other medical waste.  The parents claim that his remains were not treated with respect and that they were not given notice of the brain retention.

The article explains that:

The litigation has drawn considerable attention—and much concern—among coroners and medical ex­am­iners nationwide. If the plaintiffs prevail, the case could fundamentally change the way autopsies are conducted in this country, experts on both sides of the issue say.

The suit bares one of the more unsavory aspects of the forensic investigation. It also raises difficult, emotional issues regarding a coroner’s legal authority to conduct autopsies as he or she sees fit, as well as over the family’s desire to bury the body in as complete a state as circumstances will allow.

In almost every state, medical examiners and coroners remove brains, other body parts, tissues and fluids during autopsies for later laboratory examination. And while most inform the next of kin of the autopsy, they don’t often explain to grieving families exactly what an autopsy entails. Nor do they usually contact the family afterward to find out how they’d like to dispose of whatever remains.  * * *

Tracking down and documenting the next of kin’s wishes before an autopsy can eat up valuable time during a forensic investigation, he says. The value of an autopsy declines as the body deteriorates, even when refrigerated. In many cases, the next of kin is unknown, unavailable or in dispute. Family members often disagree over how to handle the body. And the next of kin in some cases could be the chief suspect in a murder.

June 26, 2007 in Death Event Planning | Permalink | Comments (0) | TrackBack (0)

Capacity to Create a Trust

Anne is an elderly widow with two children, Mari and Al.  In February of 2000, she executed a will that left her entire estate to her son Al and expressly disinherited her daughter Mari. Later that year, Anne suffered an acute stroke and was hospitalized. When she was released, Mari and her family moved in with her to take care of her. Mari found the will that disinherited her and told her mother that she would not take care of her “for nothing.” Mari arranged for several meetings between her mother and her mother’s attorney. At their conclusion, Anne had Mari appointed her agent for both property management and health care. Also, Anne executed an irrevocable trust appointing Mari as trustee and leaving Anne’s home and the bulk of her estate to Mari. Anne’s attorney recorded the execution of the trust in which Anne orally acknowledged what she was doing. Anne later sued to have the trust rescinded, and the trial court found that “at the time of the creation of the Trust, Anne did not have capacity to enter into a complicated legal document and that she was unduly influenced by [her daughter Mari].”


In Hunter v. Klimowicz, 2007 WL 1599221 (Ind. Ct. App. 2007), the Court of Appeals of Indiana upheld the trial court’s decision de novo. Anne’s physician testified that while Anne could have made simple decisions, such as where to go to eat, or completed simple tasks, such as writing a check, the complexity of the Trust and other legal documents put them beyond her range of competent understanding. In reviewing the doctor’s testimony, the court explained that,


[h]er attending physician * * * testified that although Anne became more alert and cooperative during her rehabilitation, she was still struggling with understanding written and spoken language [at the time the trust was executed]. Dr. Simaga attested that based on Anne’s neurological condition and the medications she was taking, she was unable to appreciate and understand a complicated legal document at that time.


The court then held that,


Although Anne’s statements recorded at the time of the Trust could be viewed as evidence of her mental capacity, we find them to be ambiguous and note that, at a later date, she could not recall the meeting at all and was perplexed when shown the documents bearing her signature. * * * Under these circumstances, we conclude that the trial court properly ordered that the Trust be rescinded.

June 26, 2007 in New Cases, Trusts | Permalink | Comments (0) | TrackBack (0)

Monday, June 25, 2007

Charitable Giving in 2006

Charitable_givingThe following are the key points reported in Stephanie Strom, Absence of Major Disaster in ’06 Affected Giving, NY Times, June 25, 2007:

      • Charitable giving was up an inflation-adjusted 1% over 2005.
      • Disasters in 2005 such as Hurricane Katrina triggered an increase in giving, especially when coupled with the accompanying tax incentives.
      • "When donations for disaster relief are excluded * * *, giving rose 5.7 percent on an inflation-adjusted basis" in 2006.
      • Religious-based gifts made up 32.8% of charitable giving in 2006.
      • The biggest gains in 2006 was in the category of universities, private schools, and other educational institutions.
      • Arts organizations saw a 6.5% inflation-adjusted increase in 2006.
      • Organizations focusing on international affairs such as disaster relief saw a 12% inflation-adjusted decrease in 2006.

June 25, 2007 in Estate Tax, Gift Tax | Permalink | Comments (0) | TrackBack (0)

Davenport Analyzed

GerzogProf. Wendy Gerzog (Professor of Law, University of Baltimore School of Law) has recently posted her article entitled Davenport: Res Judicata Applied on SSRN.

Here is the abstract of her article:

The Fifth Circuit applied res judicata in Davenport and the gift tax on 1980 gifts may finally be paid. The article details a long history of litigation culminating in this case.

Prof. Gerzog's article also appears in 115 Tax Notes 1199 (June 18, 2007).

June 25, 2007 in Articles, Gift Tax | Permalink | Comments (0) | TrackBack (0)

Popularity of Estate Planning for Pet Owners

PetsThe love owners have for their pets transcends death as documented by studies revealing that between 12% and 27% of pet owners include their pets in their wills. The popular media frequently reports cases which involve pet owners who have a strong desire to care for their beloved companions.  You may follow these links for a FAQs and state statutes.

As evidence of the increasing interest in estate planning for pet owners, see Roberta C. Yafie, Trust-Fund Pets, NY Post, June 24, 2007 (stating that "[m]ore and more middle-class pet owners are opting for Pet Trusts to ensure their dependant's are cared for").

June 25, 2007 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Sunday, June 24, 2007

Top SSRN Downloads

Ssrn_2 Here are the top downloads from April 24, 2007 to June 24, 2007 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days:

Rank Downloads Paper Title
1 140 American History of Inheritance Law
Adam J. Hirsch,
Florida State University College of Law,
Date posted to database: April 26, 2007
Last Revised: April 26, 2007
2 102 Reforming the Gift Tax and Making it Enforceable
Mitchell Gans, Jay A. Soled,
Hofstra University - School of Law, Rutgers University,
Date posted to database: May 2, 2007
Last Revised: May 17, 2007
3 73 Hester: A Saga of Greed
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: May 17, 2007
Last Revised: May 17, 2007
4 64 Big Bird Lays an Egg?
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: April 24, 2007
Last Revised: April 24, 2007
5 56 A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute
Jeffrey A. Cooper,
Quinnipiac University School of Law,
Date posted to database: May 14, 2007
Last Revised: June 8, 2007
6 47 Why Limit Charity?
Miranda Perry Fleischer,
University of Illinois College of Law ,
Date posted to database: June 14, 2007
Last Revised: June 17, 2007
7 46 Equitable Apportionment: Recent Cases and Continuing Trends
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: April 1, 2007
Last Revised: April 11, 2007

June 24, 2007 in Articles | Permalink | Comments (0) | TrackBack (0)

Saturday, June 23, 2007

Trust Drafting Advice

Jonathan C. Lurie (Partner, McDermott Will & Emery LLP, Los Angeles, Calif.) and William R. Burford (Counsel, McDermott Will & Emery LLP, Los Angeles, Calif.) have recently published their article entitled Drafting Flexible Irrevocable Trusts, 33 ACTEC J. 86 (2007).

Here is the introduction of this article:

Trusts drafted in the United States have traditionally been narrowly tailored and well defined in scope and purpose, requiring judicial intervention—sometimes unsuccessfully—to adapt to changing wishes, needs and circumstances. Domestic trusts generally include a host of details that would be found in a nonbinding letter of wishes, if at all, in trusts drafted outside of the United States. Indeed, many trusts drafted outside of the United States include such a degree of flexibility—or, some would say, obscurity—that it can at times be difficult even to ascertain the identity of the beneficiaries from the document alone.

Much of the prolixity and constraint imposed on trustees and beneficiaries of domestic trusts may be ascribed to United States tax laws, which often require a variety of specific incantations to secure desirable tax consequences. Other factors, however, may also be at work, including mistrust of fiduciaries or a desire to control beneficiaries from the grave. While the type of broad, open-ended discretion common outside of the United States remains relatively rare in domestic trusts, the increasing adoption of multi-generational or dynasty trusts, coupled with the uncertainty surrounding the future scope and impact of estate taxes, have whet the appetite of many for greater flexibility in our drafting to allow future trustees and beneficiaries to adapt trust terms to unknown future circumstances.  This article discusses several relatively simple techniques that may be employed to add flexibility to a trust instrument as well as some of the tax considerations attendant to including such provisions in a trust.

June 23, 2007 in Articles, Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, June 22, 2007

Conservation Easements

Nancy G. Henderson (Partner, Henderson & Caverly, LLP, Rancho Santa Fe, California) has recently published her article entitled This Land Is Your Land, This Land Is (Still) My Land: Using Qualified Conservation Contributions to Preserve Cherished Family Properties, 33 ACTEC J. 72 (2007).

Here is the author's description of the article:

This article provides both a primer on qualified conservation contributions (QCCs) as well as an indepth discussion on certain aspects of QCCs, with a particular focus on qualified conservation easements (QCEs). The article is divided into five parts. The first part of the article addresses the federal income tax rules governing lifetime gifts of QCCs, including planning opportunities arising from the Pension Protection Act of 2006, which are due to expire on December 31, 2007. The article then turns to the estate tax benefits of QCCs, and, in particular, post mortem QCCs. Part three of the article addresses the use of QCCs in conjunction with other estate planning techniques, such as family-owned entities and qualified personal residence trusts. Part four examines briefly some of the state tax benefits of QCCs. The article concludes with an overview of the perceived abuses of QCCs and how recent negative attention from the IRS and Congress may affect the future of QCCs as a tax planning tool.

June 22, 2007 in Articles, Estate Tax, Income Tax | Permalink | Comments (0) | TrackBack (0)

The Future of the Estate Planning Profession

ClineChristopher P. Cline (Partner, Holland + Knight, Portland, Oregon) has recently published his article entitled The Fault, Dear Brutus, Is Not in Our Stars, But in Ourselves. Some Thoughts on the Estate Planning Profession, 33 ACTEC J. 34 (2007).

Here is the introduction of the article:

Why do we even do what we do? It seems that the job of an estate planning lawyer just keeps getting worse and worse. Large firms, traditionally places of opportunity and training, with some notable exceptions seem to be marginalizing or jettisoning the practice. As that happens, the number of adequately trained associates dwindles, putting greater pressure on smaller boutique practices to find qualified lawyers. And just at the time that this talent drain is occurring, the estate planning environment becomes more uncertain: grandstanding legislators drive estate tax repeal bills in to Congress on tractors to prevent family farms from going under even though there is no evidence that this occurs. States faced with the loss of the federal state death tax credit decide to simply pretend that it’s a prior year so they don’t have to lose revenue or actually draft new tax legislation that makes sense. Uniform acts breed like rabbits. Honestly, it’s enough to drive a person to become a consultant.

Faced with such problems, there seem to be few options. In light of the hash the government is making of Social Security and Medicare, many of us won’t be able to retire until the next Ice Age (which, in light of global warming, won’t be any time soon). This leaves us only with the options of pushing on or finding another job. And to those who choose the former, let me suggest that the best way to do so is not to keep doing the same thing over and over, all the time expecting to achieve a different result, the classic definition of insanity, but rather to redefine what we do. The modest proposal of this article is that we need to reinvent ourselves, if we’ve not done so already, in order to cope with this difficult new environment in which we find ourselves.

June 22, 2007 in Articles, Estate Planning - Generally | Permalink | Comments (2) | TrackBack (0)

Thursday, June 21, 2007

Disability Planning

Dussault William L. E. Dussault (Dussault Law Group, Seattle, Washington) has recently published his articled entitled Planning for Disability, 33 ACTEC J. 42 (2007). 

Here is the author's description of the article:

It is the purpose of this article to emphasize the need for, and method of, estate and personal planning for persons whose family members include persons who may be disabled. Basic special needs trust planning has become somewhat commonplace over the last 20 years. This article will review concerns that relate to testamentary and inter vivos planning for families with handicapped children. It will also expand the topic to include appropriate and necessary planning for the likelihood of late onset disability of a spouse or parent. This article will also review planning for the individual who has a disability and who receives funds during adulthood, when eligibility for publicly supported programs and services can be critically important. Finally, the article will offer some more sophisticated approaches that coordinate transfer tax strategies with disability planning.

June 21, 2007 in Articles, Disability Planning - Property Management | Permalink | Comments (0) | TrackBack (0)