Wills, Trusts & Estates Prof Blog

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

Wednesday, November 26, 2008

Spendthrift Trusts and Hamilton Orders

Spendthrift_keyTimothy J. Vitollo (J.D., 2006) has recently authored an article entitled Uniform Trust Code Section 503: Applying Hamilton Orders to Spendthrift Interests, 43 Real Prop. Tr. & Est. L. J. 169 (2008).

Here is a synopsis of his article:

This Article examines the exceptions to spendthrift trust protection for child support and alimony creditors and proposes extending this exception to involuntary tort creditors. The author posits that the best way to reconcile the competing policy objectives of effectuating the settlor's right to dispose of his property as he chooses and those justifying exceptions to spendthrift protection is to remove all exceptions to spendthrift protection and to provide instead both support and tort creditors the ability to attach a spendthrift trust distribution, before it reaches the beneficiary, through the use of Hamilton orders.

November 26, 2008 in Articles, Trusts | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2008

Collection Management

CollectionsIn Collections Management 101 for Executors and Estate Attorneys, Heritage Auction Galleries, Nov./Dec. 2008, at 4, the importance of keeping detailed and accurate records of the contents of collections is emphasized.

For example, records of collectible items should contain the following information (adjusted, of course, to the exact type of property):

  • object type
  • title
  • maker
  • medium
  • size
  • inscriptions
  • signature
  • subject
  • date
  • manner of acquisition
  • cost and date purchased
  • where kept
  • provenance
  • special notes
  • photographs
  • scanned copies of all relevant documents

November 25, 2008 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Computerization for trust and estate attorneys


Donald H. Kelley has recently published his book entitled The Electronic Practice.

Here is the publisher's description of the book:

For attorneys, acountants, financial planners, life insurance underwriters, financial planners and charitable organization professionals in the trust and estates field. Expand your ability to use computers in practical day-to-day applications! Learn about efficient computer usage, computational and drafting softwere and finding information and resources on the internet.

Included are basic "how to" materials on computer technology and internet based research for trusts and estates practitioners.

Get information and tips to ease and enhance your hands on computer experitnce. This book includes numerous and detailed reviews of software and web-based applications needed in the trusts and estates practice, as well as information and checklists to help you evaluate such packages.

The accompanying CDRom (to be periodically updated) installs a file on your computer that makes the entire book instantly available for consultation as you work and links you to websites with specialized resources of value to you as a trusts and estates practitioner. Such linking, in effect, allows this book to serve as a Table of Contents to the riches of the internet. The links extend to computer technology, substantive law and factual resources for the trusts and estates practice.

Macintosh users will benefit from discussions of Mac technology and the file on the acompanying CDRom functions on the Mac (recent OS versions) as well on Windows.

Electronically leverage your time and abilities with instant access to specialized information you need as a trusts and estates practitioner.

Special thanks to Neil Hendershot, editor of the PA Elder, Estate & Fiduciary Law Blog, for bringing this book to my attention.  You may also read his review of the book here.

November 25, 2008 in Books - For Practitioners | Permalink | Comments (0) | TrackBack (0)

The Marshall decision analyzed

Smith2Robert P. Dougherty III recently authored an article entitled Marshall v. Marshall: Playmates, Prenupts, and the Probate Exception, 61 Ark. L. Rev. 329 (2008).

Here is an excerpt from the Introduction:

On May 1, 2006, the United States Supreme Court handed down Marshall v. Marshall, a case that has received much publicity due to the celebrity parties involved. Petitioner Vickie Lynn Marshall (“Vickie”), also known as Anna Nicole Smith, was the surviving widow of oil tycoon J. Howard Marshall II (“J. Howard”). J. Howard met Vickie in October 1991, and the two married on June 27, 1994 after a courtship of more than two years. J. Howard passed away August 4, 1995, just over a year after they were married. The ensuing litigation over J. Howard's vast estate has resulted in the Supreme Court handing down a decision that may have a great impact on federal jurisdiction in the future.

This note will analyze the Marshall decision in its entirety. First, this note will discuss the facts of the case and how this case ended up before the United States Supreme Court. Next, it will explore the history and origin of the probate exception. This note will then break down and analyze the reasoning of the Supreme Court in deciding that the probate exception did not apply in the case at hand. Next, it will explore Arkansas and Eighth Circuit cases where the probate exception was at issue and analyze them under the Marshall holding. Finally, this note will attempt to instruct practitioners on how they can either avoid or invoke the probate exception based on the reasoning of the Marshall decision and other cases.

November 25, 2008 in Articles, Estate Administration | Permalink | Comments (1) | TrackBack (0)

New York Law and Posthumously Conceived Children

Harper_robertRobert Matthew Harper (Associate, Trusts and Estates Litigation and Commercial Litigation Departments, Farrell Fritz, P.C. and Special Professor of Law, Hofstra University School of Law) recently authored an article entitled Dead Hand Problem: Why New York’s Estates, Powers and Trusts Law Should Be Amended to Treat Posthumously Conceived Children as Decedent’s Issue and Descendants, 21 Quinnipiac Prob. L. J. 267 (2008).

Here is an excerpt from the Introduction:

Imagine that you are a posthumously conceived child, the product of your mother's decision to impregnate herself with your deceased father's sperm. Your father, a member of the United States Army, deposited sperm samples with a sperm bank before his deployment to Iraq in April 2003. He did so to preserve his sperm in the event that he was infertile when he returned home. However, your father died serving his country, leaving no will or otherwise enforceable testamentary plan. Following your father's death, your mother elected to have a child, you, by impregnating herself with the sperm that your father deposited at the sperm bank. Now, your mother, having given birth to you, seeks to have you recognized as one of your father's issue, so that you can take as a beneficiary of the trust established by your father's parents for his benefit and that of his issue.

This Article addresses whether, and to what extent, New York's Estates, Powers and Trusts Law should be amended to treat posthumously conceived children as the legal, as well as biological, issue and descendants of their deceased parents. In Parts II and III, respectively, this Article discusses the development of assisted reproductive technology and the national trend toward recognizing the inheritance rights of posthumously conceived children. This Article also details the manner in which New York's current inheritance laws treat posthumously conceived children and analyzes the bill concerning the same subject matter that is currently pending before the New York Legislature. Finally, in Part V, this Article proposes that New York's legislature should adopt a statute that recognizes posthumously conceived children as decedents' issue and descendants for inheritance purposes.

November 25, 2008 in Articles, Intestate Succession, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2008

Appraisal Standards for Estate Attorneys


According to Three Appraisal Standards Estate Attorneys & Planners Need to Know, Heritage Auction Galleries, Nov./Dec. 2008, at 1, the three most important federal documents regarding valuation are as follows:

      1. Treasury Department Circular No. 230 which "clearly admonishes attorneys, accountants and other agents against aiding and abetting tax reduction schemes in estate, trust, gift tax and charitable donation matters.
      2. The Pension Protection Act of 2006 which states the standard for determining what can be considered a "qualified appraisal."
      3. The Uniform Standards of Professional Appraisal Practice which sets "standards for ethics, competency, scope of work and jurisdiction."

November 24, 2008 in Estate Administration | Permalink | Comments (0) | TrackBack (0)

King vs. Obama

King_obamaAfter Sen. Barack Obama's recent victory in the Presidential election, a wide variety of products such as pins, posters, and T-shirts have been sold which depict Sen. Obama along with Rev. Martin Luther King, Jr.

The King family is trying to get a piece of the action by claiming that they are owed upwards of $1,000,000 in licensing fees for these products.

For further details, see AP, Family of Martin Luther King Jr. Wants Share of Obama 'Change' Merchandise, FoxNews.com, Nov. 13, 2008.

I wonder whether Sen. Obama will also seek to collect licensing fees for this merchandise, either for himself or to donate to a worthy cause.

November 24, 2008 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)

Are high intestacy rates due to poor will marketing by attorneys?

WillMichael McCunney (CEPHEI Consulting, LLC) and Alyssa A. DiRusso (Assistant Professor of Law, Samford University - Cumberland School of Law) have recently published their article entitled Marketing Wills [the link is to the SSRN version], 16 Elder L. J. 33 (2008).

Here is the abstract of their article:

Disappointing rates of intestacy may be as much a business problem as a legal one. In this interdisciplinary law and business article, the authors investigate whether widespread intestacy may be attributable in part to the failure of the legal industry to market wills effectively. Although attorneys can market within the boundaries of the Model Rules of Professional Conduct, the majority do not take full advantage of the range of permissible marketing strategies. This Article suggests that attorneys learn the basics of marketing strategy and rely on guidance from marketing experts in order to structure effective programs to educate the public on will drafting services. By integrating both law and business, estate planning lawyers can better serve current and future clients.

November 24, 2008 | Permalink | Comments (0) | TrackBack (0)

Annunities - a good tool but with abuse potential

Aughtman_josephJoseph H. Aughtman (Shareholder, Beasley Allen Law Firm, Montgomery, AL) has recently published his article entitled The Annuity Conundrum: Responding to the Abuse of Elderly Investors, The Brief, Fall 2008, at 39.

Here is a summary of his article:

Unlike retirement plans, there is no limit as to how much one can invest in annuities, under which an investor provides principal for which the issuer guarantees fixed or variable payments over time. Typically issued by insurance companies, annuities are marketed as instruments to protect investors’ principal. A lawyer specializing in insurance and financial services class actions explains how annuities have been used as instruments to defraud investors—especially senior citizens—and how plaintiffs firms have initiated class actions to curb such fraudulent practices.

November 24, 2008 in Articles, Elder Law, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Sunday, November 23, 2008

Is California's Proposition 8 Unconstitutional?

Same_sexAs reported earlier on this blog, the short-lived legality of same-sex marriage in California appeared to be over because the citizens of California approved Proposition 8 (an amendment to the California constitution) which restricts marriages to opposite-sex couples.

But, a claim has now been made to the California Supreme Court that the constitutional amendment itself is actually unconstitutional.  The argument is being advanced that the 14 word amendment is actually a "major revision" to the constitution, rather than an amendment.  As such, it would require legislative approval to be effective.

According to Dean Erwin Chemerinsky (UC, Irvine), "The California Supreme Court has never articulated criteria for what makes something an amendment versus a revision."

See Jesse McKinley, With Same-Sex Marriage, a Court Takes on the People’s Voice, NY Times, Nov. 21, 2008.

November 23, 2008 in Current Events, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)