Wills, Trusts & Estates Prof Blog

Terms of Michael Jackson's Alleged Will Revealed

Here is some of the most currently reported information about Michael Jackson's alleged will:

• Prepared in 2002.

• Drafted by John Branca (an entertainment lawyer who Michael hired from 1980 to 2006 and rehired again earlier this month).

• Primary beneficiaries are his mother (Katherine) and his three children.

• A portion of his estate will also pass to various charities.

• His father, Joe Jackson, is not named as a beneficiary.

• The named executors are John Branca and John McClain.

• The will may be filed as early as July 2, 2009.

See Nick Allen, Michael Jackson's father Joe 'not named in will', Telegraph.co.uk, June 30, 2009 and Ethan Smith, Jackson Will From 2002 In Spotlight, Wall St. J., June 30, 2009.

Special thanks to the legion of faithful readers who are keeping me posted on the developments of this case which will provide us with months and perhaps years of "enjoyment."

Charitable Giving Techniques CLE

The ABA Section of Taxation and the ABA Section of Real Property, Trust & Estate Law are co-sponsoring a live course andcorresponding live video webcast CLE entitled Charitable Giving Techniques on July 9-10 in Seattle, WA.

A description of the program is below:

This annual course of study, taught by a small faculty of experienced practitioners, a professor, and a university financial officer, presents a comprehensive review of charitable giving techniques, both lifetime and testamentary, with full discussion of recent statutory provisions. Comprising more than 13 hours of instruction, it addresses the technical, mechanical, and legal sides of the issues, while also providing registrants with practical applications, pointing out common pitfalls, and offering “tips from the trenches.” Topics include:

• Charitable remainder trusts, charitable lead trusts, and pooled income trusts
• Property contributions and non-trust giving techniques
• Gift annuities
• Use of private foundations, donor-advised funds, and supporting organizations
• Post-mortem charitable planning
• Charitable giving tax pitfalls

A full hour is devoted to consideration of particular ethical dilemmas faced by attorneys practicing in this area. Time is reserved throughout the program to address registrants’ questions

Michael Jackson -- Will or No Will?

The debate rages whether Michael Jackson died intestate or testate.

In Michael Jackson's Estate in Court, myjoyonline.com, June 29, 2009, it is reported that Michael's parents, Joe and Katherine Jackson, claim in their probate filing that Michael died intestate.

However, in Michael Jackson's Will Surfaces, TMZ.com, June 29, 2009, it is reported that Michael Jackson's attorney, John Branca, is in possession of MJ's will and that he intends to file it with the court.

Fiduciary Duties in Canada

Robert Flannigan (Professor, University of Saskatchewan College of Law) has recently posted on SSRN his article entitled Fiduciary Accountability Transferred, 35 Advocs. Quarterly 334 (2009).

Here is the abstract of his article:

The Supreme Court of Canada has toyed with the boundaries of fiduciary accountability for three decades. Some of the criteria it has advanced to identify when fact-based accountability will arise (e.g. vulnerability, power differential, reasonable expectation) are vague notions that potentially derail the conventional function of the jurisdiction. Specifically, the criteria may be taken to support the view that fiduciary accountabilityregulates the merits or fairness of the actions of fiduciaries. In BCE Inc. v. 1976 Debentureholders, the court now appears to have explicitly adopted that view, albeit without recourse to any of the criteria it had previously identified. It also appears to have compromised the strict operation of the conventional regulation. The decision represents yet another novel turn, and a radical one, in the court's mercurial intercourse with fiduciary accountability.

Dead But Still on the Payroll

Deceased city employees in Cincinatti may continue to receive retirement checks well after their death.  A recent Cincinatti.com article reports that poor managment of the system has resulted in investigations in at least 18 cases of payments to dead people, including the following:

A city retiree on a disability pension since the late 1970s who died in March 2000, but continued to receive monthly checks until June 2005, resulting in a $41,345 overpayment by the city.

A deceased city employee's beneficiary who died in March 2006, but received $18,067 in improper payments through July 2008.

Another beneficiary who received checks for 19 months after her December 2006 death, four of which - totaling $5,034 - apparently were cashed by her guardian. In addition to examining the precise details about the cashed checks, investigators have concluded that the city needs to collect and stop payment on checks totaling $19,696.

In one case, pension checks for a retiree who died in October 2007 continued to go to his spouse through June 2008. The following month, after her husband's name showed up on a death report, she began receiving a reduced pension - even though she had died two months earlier.

Barry M. Horstman, Dead city worker kept getting check, Cincinatti.com, June 8, 2009.

Hard Times are Hard on Everyone, Even the Super-Rich

The newest World Wealth Report, which is produced by Merrill Lynch and Capgemini, shows that the current financial crunch has impacted the wealthy as well as those living paycheck to paycheck. The number of "ultra high net worth individuals," those with at least $30 million to invest, decreased by almost 15% last year.  The number of "high net worth individuals," those worth $1 million without their home, decreased by 15 percent.

Whether the super-rich are experiencing "hard times" is debatable, but they have been affected by the general economic downturn.

See Megan Murphy, Credit crunch takes toll on super-rich, Fin. Times, June 24, 2009.

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

Implied requirement of good faith allows beneficiaries to recover

A prenuptial agreement provided that if the husband died first, wife would maintain a valid will giving not less than one-quarter of her entire estate to each of her husband’s three sons. The husband’s will left a substantial portion of his estate to his wife.

After the husband’s death, his wife made transfers to irrevocable trusts which greatly reduced her probate estate. Her will left her probate estate to husband’s sons.

After the wife died, his sons sued and the Supreme Court of Kansas upheld the imposition of a constructive trust in their favor. The confidential relationship between the husband and his wife gave rise to an implied duty in the wife not to make gifts inconsistent with her obligations under the agreement. The nonclaim statute does not bar what is in essence an action by the wife’s estate to marshal assets nor is the action barred by the statute of limitations because the right of action did not accrue until the wife’s death.

Estate of Draper v. Bank of America, N.A., 205 P.3d 698 (Kan. 2009).

Top SSRN Downloads

Here are the top downloads from April 29, 2009 to June 28, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	285	How the Rich Stay Rich: Using a Family Trust Company to Secure a Family Fortune Iris Goodwin, University of Tennessee, Knoxville - College of Law, Date posted to database: April 24, 2009 Last Revised: June 25, 2009
2	111	Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright Deven R. Desai, Thomas Jefferson School of Law, Date posted to database: April 27, 2009 Last Revised: April 27, 2009
3	108	What is a Trust? Mark Leeming, University of Sydney - Faculty of Law, Date posted to database: April 16, 2009 Last Revised: April 16, 2009
4	76	The Uniform Power of Attorney Act: New Solutions to Old Problems Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: May 2, 2009 Last Revised: May 26, 2009
5	64	The Fiduciary Duty of Departing Employees Robert Flannigan, University of Saskatchewan, Date posted to database: April 16, 2009 Last Revised: June 4, 2009
6	59	Review of Federal Income Taxation of Estates and Beneficiaries Ronald H. Jensen, Pace University School of Law, Date posted to database: April 16, 2009 Last Revised: April 16, 2009
7	51	Fiduciary Accountability Transformed Robert Flannigan, University of Saskatchewan, Date posted to database: May 18, 2009 Last Revised: May 18, 2009
8	45	Post-Mortem Sperm Retrieval and the Social Security Administration: How Modern Reproductive Technology Makes Strange Bedfellows Mary F. Radford, Georgia State University - College of Law, Date posted to database: April 13, 2009 Last Revised: April 28, 2009
9	44	Codification of Late Roman Inheritance Law: Fideicommissa and the Theodosian Code Joshua C. Tate, Southern Methodist University - Dedman School of Law, Date posted to database: April 11, 2008 Last Revised: February 11, 2009
10	28	Negron: Circuits Now Split 2-2 Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: May 21, 2009 Last Revised: May 21, 2009

The right of publicity and Michael Jackson's Estate

 The following discussion is reproduced with permission from Bridget Crawford, Estate Tax Disaster Looms for Michael Jackson’s Estate, Feminist Law Professors, June 27, 2009:

The right of publicity is descendible in California.  This means that a person may transfer by will the right to exploit his or her name, likeness, image, etc., just as one might transfer, say, an heirloom piece of jewelry.

In Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights, published in the Yale Pocket Part,  I have argued, together with Mitchell Gans and Jonathan Blattmachr, that a descendible right of publicity likely is included in a decedent’s gross estate for federal estate tax purposes. In the Jackson estate, the estate tax value of Mr. Jackson’s rights of publicity very easily could exceed his estate’s liquid assets available to pay taxes.

In short: big estate tax problems loom on the horizon for Mr. Jackson’s estate.

Article Examines Succession Without Administration

Karen J. Sneddon (Assistant Professor, Mercer University School of Law) has recently published her article entitled Beyond the Personal Representative: The Potential of Succession Without Administration, 50 S.Tex. L. Rev. 449 (2009). 

Below is the abstract from the article: 

The baby-boom generation has changed a number of institutions, such as schools, and has challenged a number of assumptions. As the baby-boom generation ages, one such institution that may be changed is the probate court, a court that handles estates. A revived Succession without Administration could facilitate the efficient and effective transfer of estates. To complement the Uniform Probate Code's already “Flexible System of Administration of Decedents' Estates,” the Uniform Probate Code was amended in 1983 to include Succession without Administration. Succession without Administration provides for administration free from court supervision that is not restricted to the size of a decedent's estate and a spreading of estate management beyond the personal representative. That means that solvent estates with relatively liquid assets and agreement among beneficiaries could benefit from this alternative. It could promote the goal of family harmony.

 

Despite being viewed by its primary draftsperson as a natural progression of minimal court supervision and buttressed by the identification of such a need in the 1940s, no jurisdiction has adopted the Succession without Administration provisions. In 2007, the provisions were declared “obsolete” and officially “withdrawn from recommendation for enactment.”

 

First, this Article briefly considers the origins, functions, and problems of administration. Second, this Article surveys statutes featuring informal administration procedures that stop short of the expansive options of the Uniform Probate Code's Succession without Administration, including one procedure that has been in use since the late nineteenth century. Third, this Article analyzes the options in the Uniform Probate Code to minimize court supervision. In addition to analyzing Succession without Administration, this Article reviews procedures inherent, affidavit procedures, and summary procedures for small estates. Finally, this Article reasons that the overlooked Uniform Probate Code's Succession without Administration should be reconsidered by jurisdictions. It ensures the greatest number of options for the settlement of estates, including large solvent estates with liquid assets. Succession without Administration would also allow the spreading of authority to handle and manage the estate, which, in some cases, may preserve family harmony.