Wills, Trusts & Estates Prof Blog

Organ Donation: Opt-Out, Mandated, or by I-Phone?

Most U.S. states use an opt-in approach for organ donation.  Alternatives include the opt-out and the mandated approaches, which could motivate U.S. citizens who would like to be an organ donor to make their intent known:

• Opt-out: Citizens are presumed to consent to organ donation unless they opt-out.  This approach, also called presumed consent, is used in some European countries and can result in significantly higher donation rates.
• Mandated Approach: Used in Illinois, individuals renewing their driver's license are required to answer yes or no when asked if they want to be an organ donor.  The sign-up rate in Illinois is 60%, higher than the national average of 38%.

As previously noted, Steve Jobs, following his liver transplant, expressed hope that all can be generous organ donors.  Richard Thaler, in his article Opting in vs. opting out, NY Times, Sept. 26, 2009, responded to Jobs' public statement:

Here is a challenge to Mr. Jobs: Why not create a Web site — and a free app for the iPhone — that lets people sign up as organ donors in their home states?

How an Illinois estate planner can survive changing times

In Winning at Darwin’s Game, 97 Ill. B.J. 420 (2009), Katarinna McBride (Beerman Swerdlove, LLLP, Chicago, Illinois) explains how changes in federal law, plus the Illinois estate tax which is decoupled from the federal tax schedule and the new Illinois virtual representation statute “present survivor-style challenges and opportunities to estate planners.”

Here is the conclusion to her article:

Estate planning practitioners have developed new armor against economic hazards and shrinking sources of business. In addition to successfully focusing on local law, they have adapted and are focusing on marketing the other valuable aspects of estate planning, including asset management, disability planning, dispute avoidance for estates and trusts, discord avoidance in business arrangements, and alternate asset protection methodologies.

It seems that estate-planning practitioners have survived the most unfavorable variations to their environment. They are winning at Darwin's game.

Suicide Kit Is a Controversial Purchase

Dr. Phillip Nitschke, founder and director of a pro-euthanasia group, teaches individuals how to die peacefully and at their own will with the aid of a suicide drug-testing kit (pictured). The kit contains the drug Nembutal, which is used by vets in Britain to euthanize animals. 

See Farah Masters, Graying Britain looks to assisted suicide reform, Reuters, Sept. 21, 2009.

Woman Who Owns Bulk of Marilyn Monroe's Estate Barely Knew Her

When Marilyn Monroe died, she was single and childless, but she did have a will.

• Monroe signed a will one year before her death.
• She left $100,000 in trust to care for her mother, who was institutionalized for mental illness the majority of her life.
• Monroe left half of her estate to her acting coach, Lee Strasburg.
• Lee Strasburg remarried after Monroe's death, and after his death, his estate and Monroe's estate passed to his widow, Anna.
• Anna, who was 40 years younger than Lee and may have met Monroe once, currently holds the bulk of Monroe's estate.
• Monroe's estate is ranked as the 8th highest income producing estates according to Forbes.

See Kristen Marks, What's Happened to Marilyn Monroe's Estate?, Sept. 24, 2009.

Use of Trusts In Medicaid and non-Medicaid Asset Protection

Bradley E.S. Fogle (professor of law, St. Louis University), Jr. has published his article entitled Scylla and Charybdis Attack: Using Trusts for Medicaid Planning and Non-Medicaid Asset Protection, 35 Am. C. of Trust & Estate Counsel 45 (Summer 2009).  The editor's synopsis of the article is below:

Trusts are frequently an important part of both Medicaid planning and non-Medicaid asset protection.  Despite the superficial similarities between the two areas, there are important differences.  The 2006 changes to the Medicaid qualification rules have exacerbated these differences.  For this reason, the careful planner should be familiar with both Medicaid planning and non-Medicaid asset-protection rules.

Vermont Adopts Uniform Trust Code

New law in Vermont adopts the Uniform Trust Code.  2009 Vt. Laws No. 20.  The state legislature's website provides a detailed summary of the act, including the following excerpt:

This act modernizes and codifies the laws governing testamentary and inter vivos trusts. The act adopts the Uniform Trust Code in large measure, drawing from common law sources as well as existing statutory law, but has been modified in part to reflect current Vermont legal principles. The act provides a set of basic default rules that govern voluntary trusts. However, because the act is a set of default rules, the terms of a trust instrument will govern even if the terms are inconsistent with the act.

Vermont Legislature, Summary of the 2009 Acts: Act 20.

Washington Expands Slayer Statute

New legislation in Washington state expands the slayer statute to include someone who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult.  2009 Wash. Legis. Serv. Ch. 525 (West).

The Creighton University Law Review announces the third annual multidisciplinary symposium on Friday, April 16, 2010, at Creighton University School of Law in Omaha, Nebraska. The Law Review is soliciting papers to be presented at the symposium, which will explore the theme of moral, religious, and ethical perspectives in estate planning, including issues affecting wills, trusts, estates, and taxation. Authors from legal or social science perspectives are invited to submit papers for discussion at the symposium.

Interested authors must submit their papers to the Law Review by December 15, 2009. All papers should be accompanied by an abstract of 250 words or less. Authors of selected papers will be notified by January 15, 2010, and they will be invited to present their work at the symposium on Friday, April 16, 2010. Travel expenses up to $500 and all lodging expenses for presenters will be reimbursed by the Law Review.

Qualifying papers will be published in the third issue of the Creighton Law Review, which is devoted to the symposium.

Papers should be submitted, preferably in electronic form, to:
Patrice Ott
Senior Lead Articles Editor
Creighton University Law Review
Creighton University School of Law
2500 California Plaza
Omaha, NE 68178
[email protected]

Papers may also be submitted through the Express-O service.

Analysis of UPC Provisions Concerning Assisted Reproduction: Class Gifts and Intestacy

Sheldon F. Kurtz (professor of law, University of Iowa) and Lawrence W. Waggoner (professor of law, University of Michigan) have published their article entitled The UPC Addresses the Class-Gift and Intestacy Rights of Children of Assisted Reproduction Technologies, 35 Am. C of Trust and Estate Counsel J. 30 (Summer 2009). The editor's synopsis of the article is below:

Recent years' advances in assisted reproduction technology have enabled the conception of children in ways in addition to the traditional way.  The Uniform Probate Code was amended last year to address the status of children born from assisted reproductive technologies for intestacy and class-gift purposes.  This article discusses the relevant UPC provisions and offers several hypothetical cases to show how they operate.  The article concludes expressing the hope that states will consider the new UPC approach.

Top SSRN Downloads

Here are the top downloads from July 28, 2009 to September 26, 2009 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	236	Protecting Trust Assets from the Federal Tax Lien Bryan Camp, Texas Tech University - School of Law, Date posted to database: June 24, 2009 Last Revised: August 3, 2009
2	122	Jorgensen: A Familiar FLP Story Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: July 6, 2009 Last Revised: July 6, 2009
3	87	Global Trends and Constraints on Tax Policy in the Least Developed Countries Allison Christians, University of Wisconsin Law School, Date posted to database: August 11, 2009 Last Revised: September 11, 2009
4	86	Estate Planning Implications of the Right of Publicity Paul L. Caron, University of Cincinnati - College of Law, Date posted to database: July 1, 2009 Last Revised: September 9, 2009
5	58	The Effects of Donor Standing on Philanthropy: Insights from the Psychology of Gift-Giving Reid K. Weisbord, Peter DeScioli, Government of the United States of America - United States Court of Appeals for the Third Circuit, Chapman University Economic Science Institute, Date posted to database: July 16, 2009 Last Revised: August 13, 2009
6	47	2009 Texas Legislative Update: Intestacy, Wills, Trusts, and Related Matters Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: July 23, 2009 Last Revised: July 23, 2009
7	29	Sticky Copyrights: Discriminatory Tax Restraints on the Transfer of Intellectual Property Bridget J. Crawford, Mitchell Gans, Pace University School of Law, Hofstra University - School of Law, Date posted to database: August 25, 2009 Last Revised: September 21, 2009
8	18	Outliving Civil Rights Nina A. Kohn, Syracuse University - College of Law, Date posted to database: August 8, 2009 Last Revised: August 11, 2009
9	15	Body, Body, Who Gets the Body? The Resolution of Bodily Remains Cases James T.R. Jones, University of Louisville - Louis D. Brandeis School of Law, Date posted to database: June 13, 2009 Last Revised: September 17, 2009
10	11	Ethical Challenges in Representing Families in Family Limited Partnerships Mary F. Radford, Georgia State University - College of Law, Date posted to database: August 24, 2009 Last Revised: August 24, 2009