Wills, Trusts & Estates Prof Blog

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

Tuesday, July 28, 2009

Another County Reports an Increase in Unclaimed Dead

Coffin I recently blogged about the increased annual rate of unclaimed dead in Los Angeles County here

Clarke County, Nevada, has reported a similar increase, citing a 22% jump in the number of residents unable to pay for their own burial. 

See Abigail Goldman, The afterlife of Clarke County's poor, Las Vegas Sun, July 24, 2009.

July 28, 2009 in Current Affairs, Estate Administration | Permalink | Comments (0) | TrackBack (0)

State Constitutions: An Argument Against the Abolition of Perpetuities Law

John V. Orth (professor of law, University of North Carolina) has recently published his article entitled Allowing Perpetuities in North Carolina, 31 Campbell L. Rev. 399 (2009). 

The first two paragraphs of the article are below:

As one state after another acts to make perpetual trusts possible, a little-noticed provision in some state constitutions forbidding “perpetuities” is receiving new attention. The first such provision--originally in North Carolina's 1776 Constitution and later copied by other states--is now the subject of litigation that will determine the constitutionality of the state's recent repeal of the Rule Against Perpetuities as applied to beneficial interests in trust. The case, Brown Brothers Harriman Trust Co. v. Benson, seems set to become a landmark that could be influential as other states with similar constitutional provisions respond to the demand for allowing perpetual trusts.

Perpetuities and monopolies are contrary to the genius of a free state and shall not be allowed.

July 28, 2009 in Articles, Disability Planning - Property Management, Scholarship, Trusts | Permalink | Comments (0) | TrackBack (0)

Monday, July 27, 2009

South Africa Rules on Intestacy Rights in Polygamous Marriages

South_africa On July 15, 2009, the Constitutional Court of South Africa issued a landmark decision in the case Hassam v. Jacobs.  As summarized by the New York Times, the South African court held that "when a husband dies without a will in a polygamous Muslim marriage, each of his wives is guaranteed legal rights of inheritance."  Barry Bearak, In a Complex Family, Death Adds to the Indignity, NY Times, July 23, 2009.

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

July 27, 2009 in Intestate Succession, New Cases | Permalink | Comments (0) | TrackBack (0)

CLE on Special Needs Trusts

Cle The ABA Section of Real Property, Trust & Estate Law is sponsoring a teleconference and live audio webcast CLE entitled Top Ten Tips Every Estate Planner Needs to Know About Special Needs Trusts on August 4, 2009.

The following is a summary of the CLE.

Special Needs Trusts (SNTs) are an important planning tool for families that wish to secure the future of persons challenged by disabling conditions. If SNTs for such persons are not drafted and administered carefully, clients may not achieve the desired result of maintaining the crucial means-tested government benefits upon which they rely.

This session will explain the important differences between first-party and third-party SNTs so that the estate planner will know when each type should be used.

The presenters will also cover the most critical considerations in preparing and administering estate plans that benefit persons confronted with disabling conditions, including:

  • The types of available distribution standards for SNTs
  • Considerations in selecting an appropriate Trustee for an SNT
  • How to prevent an SNT from disqualifying the beneficiary from eligibility for means-tested public benefits
  • Practical comprehensive tips to implement an estate plan that includes an SNT, including coordination of beneficiary designations for non-probate assets
  • Whether to use an inter vivos SNT or a testamentary SNT (or both)
  • How to use an SNT for a spouse with a disability
  • Drafting Powers of Attorney and Living Trusts to allow distributions for family members with a disability
  • Advising a family on how to prepare a letter of intent for the Trustee of an SNT
  • Coordinating sources of funding for an SNT
  • Helping a parent with a disability establish a "sole benefit" trust for his or her child with special needs

Advising families on how to divide assets among "typical" children and those with special needs.

July 27, 2009 in Conferences & CLE, Estate Planning - Generally, Trusts | Permalink | Comments (0) | TrackBack (0)

Norwegian Rapper Claims Jackson as Father

Jacksonthree Omar Bhatti, a Norwegian rapper, is seeking a DNA test to prove that he is Michael Jackson's secret child.  Mr. Bhatti first met Jackson in 1996 at the age of 12 and soon after, Mr. Bhatti's mother became a nanny for Jackson's son Blanket.  Insiders say that Jackson did not meet Mr. Bhatti or his family until 1996, after Mr. Bhatti's birth.

See Ben Leach, Michael Jackson met "secret love child" in Tunisian hotel, Telegraph, July 23, 2009.

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

July 27, 2009 in Current Events, Estate Administration | Permalink | Comments (0) | TrackBack (0)

An Argument for Unconscionability as a Defense in Trust Law

Trusts David Horton (lecturer in residence, UC Berkeley) has recently published his article entitled Unconscionability in the Law of Trusts, 84 Notre Dame L. Rev. 1675 (2009). 

The abstract of the article is below:

This Article claims that trust law should recognize the unconscionability defense. It begins by noting the symmetry between trust and contract defenses and the growing consensus among courts and scholars that trusts are contracts. It sketches the leading rationales for why courts enforce promises between private actors: the theories that free exchange allows parties to maximize welfare and exercise free will. It then argues that neither concept justifies upholding a contractual term if informational defects prevent one party from observing that it sharply deviates from her ex ante desires. It asserts that the unconscionability doctrine strikes down contractual terms that suffer from precisely that defect.
The Article then explains how the unconscionability doctrine could serve the same purpose in trust law. It discusses why the policies underlying freedom of testation depart from those behind freedom of contract and provide less support for a laissez faire regime. It then challenges the unarticulated but intuitive notion that controls in the trust-creation process are sufficient to align an instrument's text with a settlor's intent. It reveals that corporate fiduciaries, trust mills, and a revitalized do-it-yourself movement have spawned “procedurally suspect” trusts: those created without attorney involvement and laden with complex terms. It then examines three common but controversial “substantively suspect” terms--exculpatory, no contest, and arbitration clauses--and shows how a trust-specific unconscionability doctrine would improve outcomes in cases.

July 27, 2009 in Articles, Trusts | Permalink | Comments (0) | TrackBack (0)

Saturday, July 25, 2009

Star Trek Creator Travels to Space After Death

Star_trek Eugene Wesley Roddenberry, the creator of Star Trek, was cremated after his death in 1991.  Some of his remains were taken on the Space Shuttle Columbia, some were launched into orbit via a rocket, and some will be launched into space with the remains of his late wife.

See TruTV, Weirdest Wills.

July 25, 2009 in Death Event Planning, Estate Administration | Permalink | Comments (0) | TrackBack (0)

Top SSRN Downloads

Ssrn_2 Here are the top downloads from May 26, 2009 to July 25, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank Downloads Paper Title
1 99 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
2 75 Estate Tax on Gift Tax: The Liability Conundrum
Bridget J. Crawford, Jonathan G. Blattmachr,
Pace University School of Law, Milbank, Tweed, Hadley & McCloy LLP,
Date posted to database: June 8, 2009
Last Revised: June 12, 2009
3 44 Max's Taxes: A Tax-Based Analysis of Pet Trusts
Gerry W. Beyer, Jonathan P. Wilkerson,
Texas Tech University School of Law, Author - affiliation not provided to SSRN,
Date posted to database: May 23, 2009
Last Revised: May 23, 2009
4 43 On Estate Tax Repeal and Charitable Bequests
David Joulfaian,
U.S. Department of the Treasury,
Date posted to database: June 5, 2009
Last Revised: June 27, 2009
5 35 No Bonds but Those Freely Chosen: An Obituary for the Principle of Forced Heirship in American Law
Vincent D. Rougeau,
Notre Dame Law School ,
Date posted to database: April 29, 2009
Last Revised: April 29, 2009
6 31 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
7 24 The Communicationally Challenged Testator
Gerry W. Beyer,
Texas Tech University School of Law,
Date posted to database: June 5, 2009
Last Revised: June 5, 2009
8 14 Time Traveling to Strangle Strangi (and Kill the Monster Again), Part 2
Richard L. Dees,
McDermott, Will & Emery - Chicago Office,
Date posted to database: May 27, 2009
Last Revised: May 27, 2009

July 25, 2009 in Articles | Permalink | Comments (0) | TrackBack (0)

Preserving the Integrity of Land Trusts

Iceberg_scenery Erin B. Gisler (J.D. candidate, Santa Clara University School of Law, 2009) has recently published her comment entitled Land Trusts in the Twenty-First Century: How Tax Abuse and Corporate Governance Threaten the Integrity of Charitable Land Preservation, 49 Santa Clara L. Rev. 1123 (2009).

The introduction to the article is below:

Paralleling dramatic population growth and sprawl, land trust growth gained momentum in the 1980s with the passage of the Uniform Conservation Easement Act, as well as a new tax provision that allowed for an income tax deduction for a charitable contribution of land. The conservation movement also encouraged the passage of additional tax incentives in the twenty-first century. However, as with any kind of financially motivating laws, abuse is inevitable. Particularly with the fair market valuations that must occur when a donor contributes land, appraisals hinder the conservation process by enabling self-interested landowners to attain an inaccurately high land value estimate so as to deduct more income taxes. Today, land trusts' goodwill suffer from transacting with landowners who attain dishonest appraisals. The reputations of land trusts have also been tarnished by the unethical practices of The Nature Conservancy, one specific land trust that has drawn the negative attention of journalists and Congress.
This comment explores the pivotal role of land trusts in the conservation boom and in upholding the integrity of land conservation. Part II provides a background of land trusts and their functions; it also reviews how land conservation and land trusts became popular as a result of statutory changes in federal tax law, and how such popularity has encouraged even more pro-conservation legislation.  Part III presents one of the major threats to the conservation movement: tax abuse.  Part IV analyzes this problem from the viewpoint of individual landowners seeking hefty income tax deductions and discusses how land trusts, and The Nature Conservancy in particular, can lose sight of their missions to conserve by engaging in unethical, profit-motivated behavior. Part V's proposal suggests a number of methods all parties involved in land conservation can implement to adhere to ethical and responsible standards.

July 25, 2009 in Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, July 24, 2009

More Unclaimed Dead

Foot_with_body_tagA recent LA Times article discusses the increased cremation rates by the LA county coroner and morgue, stating that "[t]he poor economy is taking a toll even on the dead, with an increasing number of bodies in Los Angeles County going unclaimed by families who cannot afford to bury or cremate their loved ones."  Molly Hennessy-Fiske, More bodies go unclaimed as families can't afford funeral costs, LA Times, July 21, 2009.

July 24, 2009 in Death Event Planning, Estate Administration | Permalink | Comments (1) | TrackBack (0)