Wills, Trusts & Estates Prof Blog

Post-Mortem Information Transmission Now Available

There are many things that people may want to be handled a certain way after their death. Deathswitch.com, offers its clients an opportunity to do so.

Here is how it works:

Deathswitch is an automated system that regularly prompts its users for a password to make sure that they are still alive. If the user fails to respond for some time, the system assumes that he or she is dead or critically disabled and e-mails pre-scripted messages to the people the user selected. Customer can select the frequency of the prompts and also the length of time after non-response triggering transmission. These time-frames can range from one day to one year.

Some of the ways in which Deathswitch can be used include:

• Sending computer passwords to co-workers and family
• Providing loved ones with bank account and other financial information
• Making known one’s final wishes
• Sharing unspeakable secrets
• Leaving love notes
• Having the last word in an argument
• Providing the loved ones with funeral instructions

Neil Hendershot also discusses this service on his blog where he ponders the ramifications of a premature discharge of an intended postmortem email message.

A Mystery ----

Yesterday, this blog experienced its highest number of visitors in one day, 2,176.  This is a greater number of readers than even when we were discussing Anna Nicole Smith or Leona Helmsley on a regular basis.

I am really puzzled as to what triggered this tremendous increase in readership.  If you have any thoughts, please let me know.

And, as always, I greatly appreciate your readership and support.

Comment Reminder

Do you notice that when you post a Comment, it does not appear?  Do you post it again and again?  Then, after a while, do you notice that it suddenly appears?

This is not aberrant behavior. Instead, it is by design because comments on this blog, as well as all other blogs in the Law Professor Blog Network, are moderated.  This means that a comment will not appear until the blog editor approves the comment.  This requirement is imposed because the blog editor may be held liable for the publication of comments under the theory of publisher liability. Because of publisher liability concerns, the Law Professor Blogs Network does not allow automatic comment publishing.

I do not receive an automatic notice that someone has posted a comment.  I do check on a regular basis but if you want to get you comment posted faster, please send me an e-mail simply stating you have posted a comment.

Is Steve Fossett sufficiently missing to be deemed dead?

Steve Fossett, a famous American adventurer disappeared in September while taking a pleasure flight in rugged Western terrain.

Here are more details on this story from Mike Robinson, Court Asked to Declare Steve Fossett Dead, news.aol.com, Nov. 26, 2007:

The wife of millionaire adventurer Steve Fossett *** asked a court Monday to declare him legally dead.***

The request was a step toward resolving the legal status of Fossett's estate, which *** is "vast, surpassing eight figures in liquid assets, various entities and real estate[.]" ***

Fossett had become one of America's best-known adventurers in more than a decade of pouring his fabulous wealth - earned in Chicago's commodities markets - into chases for world records in sailing, ballooning and other rugged and sometimes dangerous outdoor activities. ***

While the wreckage of the plane has not been found, the petition said there was no chance that Fossett might somehow have survived. ***

Special thanks to Sara Hudman (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.

Hospices are Incurring Medicare Debt Because Their Patients are Living Longer

Hospices across the United States are facing hundreds of millions of dollars in Medicare debt because their patients are living longer than expected.

According to Kevin Sack, In Hospice Care, Longer Lives Mean Money Lost, NYTimes.com, Nov. 27, 2007:

In the early days of the Medicare hospice benefit, which was designed for those with less than six months to live, nearly all patients were cancer victims, who tended to die relatively quickly and predictably once curative efforts were abandoned.

But in the last five years, hospice use has skyrocketed among patients with less predictable trajectories, like those with Alzheimer’s disease and dementia.***

Medicare’s coverage of hospice, which began in 1983, has become one of the fastest growing components of the government’s fastest growing entitlement. Spending nearly tripled from 2000 to 2005, to $8.2 billion, and nearly 40 percent of Medicare recipients now use the service.***

A number of hospice providers said ethical and legal constraints would prevent them from discharging patients who outlived their profit potential. But some said they sometimes delayed admission for those patients with illnesses that might result in longer stays.***

Generation-Skipping Transfer Tax and Power of Appointment

The following is from Robert L. Moshman, Esq., GST Grandfathering Debated, Est. Analyst (Oct. 2007):

The Benjamin Gerson Trust became irrevocable when Mr. Gerson died in 1973. Mr. Gerson left a $22-million estate for which $7.16 million of estate tax was owed. Marital Trust A, containing $6.24 million, was subject to a power of appointment that Mrs. Gerson exercised in her will on behalf of five grandchildren. At her death in 2000, Trust A was distributed to two of the grandchildren outright and to three others in trust until they were to turn 40.

Since Mrs. Gerson held a general power of appointment over property at death, the value of such property was includible in her gross estate for Federal estate tax purposes under section 2041.

The IRS treated the transfer to the grandchildren as direct skip transfers coming from Mrs. Gerson and therefore assessed a tax deficiency of $1.14 million based on the GST tax.***

[T]he IRS*** found that the lapse of a general power of appointment resulted in a “constructive” addition to the trust and was therefore subject to GST tax.

The estate argued that the transfer was grandfathered as a transfer from a trust that was irrevocable prior to October 22, 1986, under section 1433(b)(2)(A) of the Tax Reform Act of 1986[.]***

[A] divided tax court sided with the IRS and noted that Congress used the transitional rule to apply to trusts involving a specific volitional generation-skipping transfer and not a general power of appointment. Also, there was congressional intent to provide uniformity in GST tax application.

Pavarotti’s Wife Files a Lawsuit to Defend Herself from "Unseemly Gossip"

Earlier on this blog, I discussed the controversy surrounding a legendary Italian singer Luciano Pavarotti’s will.

Here are some of the most recent reports regarding the aftermath of Pavarotti’s death from BBC News, Pavarotti's widow suing friends, news.bbc.co.uk, Nov. 27, 2007.

The move comes weeks after Ms Mantovani, 37, attacked the Italian media for reporting "unseemly gossip" about her marriage to the tenor.

"Since the comments did not cease - and were, in fact, reiterated - Mantovani had no choice but to file the lawsuit," said her lawyer, Anna Maria Bernini.***

The two people named in the legal case are Franca Corfini Strata, the wife of the late singer's dietician, and Lidia La Marca, who is married to conductor Leone Magiera.***

Ms Mantovani is seeking 15 million euros (£10.7m) in damages from each, and intends to donate any award to charity, Ms Benini said.***

She denied being left in debt or that she was squabbling with his three adult daughters over his will.***

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

Pennsylvania May Require eBay Sellers to Get Live Auctioneer Licenses

The state of Pennsylvania has begun to regulate sellers who sell other people’s items on eBay.

Ford Turner, Ebay sellers pushed to get auctioneer licenses, pennlive.com, Nov. 17, 2007 reports:

The state claims that people ***who accept things on consignment from other people and sell them using *** eBay — are auctioneers and must obtain traditional state auctioneers’ licenses.

The enforcement push means that online sellers would have to serve apprenticeships with traditional auctioneers or take college auctioneering courses.

At least two bills awaiting committee action in the Legislature were designed to deal with eBay auctioneering.***

Rob Wonderling, R-Montgomery, said there are more than 15,000 state residents who make most of their money by trading and selling on the Internet.

His bill would remove any requirement for licensing residents who use online trading platforms.***

Another bill in the state House of Representatives would require online sellers of other people’s items to register, pay a fee of about $100, and secure a bond that would cost about $50[.]***

Special thanks to Neil E. Hendershot, Esq. (Attorney at law, Goldberg Katzman, P.C., Adjunct Professor, Widener University School of Law) for bringing this article to my attention.  Neil concludes that "[i]f a fiduciary in Pennsylvania decides to consign tangible personal property for liquidation through an online listing agent, like an eBay selling service, check for its auctioneer's license."

Charitable Gifts -- What purposes are most popular?

According to Tracey Wongs Briggs & Karl Gelles, Where the philanthropic dollars go, USA Today, Nov. 26, 2007, at D1, the top six charitable purposes are as follows:

1. Education
2. Social services
3. International
4. Health
5. Donor-advised gift funds
6. Community foundations

Is Trouble in trouble?

As you may remember, Leona Helmsley left $12 million to an inter vivos trust which is reported to contain provisions for the benefit of her pet dog, Trouble.

According to CBSNews.com, Helmsley's Dog Getting Death Threats (Nov. 26, 2007):

It came as little surprise that there would be hostility towards the dog. But death and kidnapping threats seem a little extreme.

"I think the reaction was really quite bizarre," Helmsley's longtime friend John Codey told Early Show national correspondent Tracy Smith.

Codey is in charge of the pampered pooch and her trust fund. He said he was alarmed by the number of threats and estimates that Trouble received about 20 or 30.

"'I'm gonna kill the dog,'" he said people threatened. "'I'm gonna kidnap the dog. I need the $12 million.'" * * *

When you put it in perspective, the $12 million seems as tiny as the dog who received it. Perhaps Helmsley merely wanted to give something back to the dog who was truly her best friend. As soon as the dog dies, whatever is left of Trouble's inheritance goes back to the charitable trust.

"Trouble is very much alive and well taken care of," Codey said. "I can tell you that she's in this country and she's in a nice warm climate."

Special thanks to Jennifer Cocanougher (J.D. Candidate, Texas Tech University School of Law) for bringing this article to my attention.