Wills, Trusts & Estates Prof Blog

Happy New Year!

Good Morning and Happy New Year,

As you are probably aware, this blog attempts to serve as a central site to locate and explore comprehensive materials to enhance your teaching of courses that address intestate succession, wills, trusts, estate administration, non-probate assets, planning for disability, and other matters pertaining to estate planning.  A wide range of materials are presented including reference, practical, academic, scholarly, pedestrian, historical, current, etc.

I encourage you to make suggestions and recommendations for materials to be included on this blog.  Unless otherwise requested, I will acknowledge your contribution in my blog entry.

Also, have you recently:

• published a book or article?
• made an interesting presentation?
• received a noteworthy appointment?
• accepted a position at a different school (permanent or visiting)?

If yes, please consider submitting a summary of the book, article, activity, etc. and I will be post it to this blog.  I am sure your colleagues would be interested -- I know I am!!

Best wishes for 2010,

Gerry

P.S.  For my non-law professor readers, I also encourage you to submit items which you think may be of interest to blog readers.  Your input and readership are greatly apppreciated!!

Pauly Shore Files Lawsuit Against Brother Over Family Comedy Store

Actor and Comedian Pauly Shore recently filed a lawsuit asking that he be reinstated as a member of the board that oversees his family's comedy club and that his brother Peter turn over the club's financial records.  

Mitzi Shore, Pauly and Peter's mother, ran the Comedy Store, a comedy club in L.A., for many decades.  She now suffers from Parkinson's disease, and Pauly suspects that Peter is exerting undue influence over her.  

The comedy store scouted out the talents of many famous comedians, including Robin Williams, Jim Carrey, Carlos Mencia. 

See John Weinbach, Comedy Store family dispute is no laughing matter, LA Times, Dec. 15, 2009.

The Uniform Power of Attorney Act in Virginia

Andrew H. Hook (partner, Oast & Hook) & Lisa V. Johnson (attorney, Oast & Hook) recently published their essay entitled The Virginia Uniform Power of Attorney Act, 44 U. Rich. L. Rev. 107 (2009).  

The laws related to Durable Powers of Attorney (“DPAs”) have largely evolved from the common law of agency and are steadily moving toward a statutory framework. The statutory law is moving from relatively short statutes amending the common law of agency to a comprehensive framework supplemented by the common law.  The driving force behind this trend is the desire for increased acceptance and use of DPAs. However, DPAs are still relatively new legal tools. Case law and statutes regarding their interpretation and construction continue to develop and vary from state to state. 

The Uniform Power of Attorney Act (“UPOAA”) was promulgated in 2006 by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”) in an attempt to bring uniformity to this area of the law, which is rapidly emerging as a significant, if not vital, estate planning tool. A UPOAA bill was introduced into the Virginia General Assembly in January 2009 and passed with a provision that requires the UPOAA to be reenacted in the 2010 Session in order to become effective. The authors recommend that the General Assembly re-enact the UPOAA in the 2010 Session with the amendments suggested in this article.

CLE to Discuss the Consequences of the Federal Estate Tax Repeal

The ABA Section of Real Property, Trust & Estate Law is sponsoring a teleconference and live audio webcast CLE entitled What Hath Congress Wrought? Dealing with Estate Tax Repeal, Carryover Basis and Other Potential Complications of Congressional Inaction on Jan. 21, 2010. 

A summary of the program is below:

When EGTRRA passed in 2001, no one anticipated that the temporary estate tax repeal and elimination of stepped-up basis scheduled for 2010 would occur without some permanent resolution. When the clock struck midnight on December 31, 2009, the unthinkable happened. Democratic leaders in Congress have indicated they plan to reinstate the estate tax at 2009 levels, retroactive to January 1. What will actually happen and when is unknown.

During this program our panel will discuss: 

• The complications this creates; 
• The planning possibilities created by this situation;
• Things to consider when advising clients.

Blog Reception at AALS Annual Meeting

Are you attending the AALS Annual Meeting in New Orleans?

If so, I would like to invite you to an informal reception on Friday, January 8, 2010 immediately following the Gala Reception.

I would enjoy visiting with my readers and contributors to see how you and your students use the blog and receive any input you would be willing to share.

If you are interesting in attending, please RSVP at your earliest convenience.

Note that I will find a a suitable location in the hotel (or nearby) and will post it once I arrive at the meeting.

End of Life Decision Could Include Terminal Sedation

The New York Times recently featured a fascinating article on terminal sedation:  

• Terminal sedation is a form of palliative care where very ill, near-death patients are given sedative drugs so that the patient's final days are spent sedated and free of pain or discomfort.  
• Some argue that terminal sedation hastens death and is thus a form of slow euthanasia.
• According to the article, terminal sedation is "widely used," although doctors agree that it should not become a routine procedure.

For more information on the challenges presented by terminal sedation, including ethical, guideline, and family decision issues, see Anemona Hartocollis, Hard Choice for a Comfortable Death: Sedation, NY Times, Dec. 26, 2009.

TV Pilot of "The Will" Airs on Investigation Discovery

Earlier this month the pilot episode of a new TV series called "The Will: Family Secrets Revealed" aired on Investigation Discovery.  The show documents interesting and entertaining family disputes over the estate of a deceased loved one, which should satisfy the American appetite for high-profile drama and reality TV.  If nothing else, the show will hopefully encourage viewers to get their affairs in order to avoid similar problems.

The full series should begin airing in July.  Those who missed the pilot episode may want to check the Investigation Discovery listings because cable networks often re-air programs multiple times. 

For more information, see New York Post, Out of the will, Dec. 18, 2009. 

California Court Holds that Settlor Incapacity Removal Requires Doctor to Review Incapacity Letters

In Rands v. Rands, 178 Cal. App. 4th 907 (App. Ct. 2009), the trust provided that settlor’s incapacity could be established by the certification of two physicians, and the revocation of such certification could be accomplished by the certification of two other doctors that the settlor was no longer incapacitated. The court held that the letters revoking the certification of incapacity were not sufficient when the physicians certifying the settlor was no longer incapacitated had not seen or read the earlier letters certifying incapacity, since the later doctors had to acknowledge a change in recovery of capacity.

Special thanks to Martin Beglieter (professor of law, Drake University) for providing this information.

Virginia Wills, Trusts, and Estates Update

J. Rodney Johnson (professor of law, University of Richmond) has recently published his article Wills, Trusts, and Estates, 44 U. Rich. L. Rev. 631 (2009).

The introduction to the article is below: 

The 2009 Session of the General Assembly enacted wills, trusts, and estates legislation (1) preventing, in cases where persons die after June 30, 2009, application of a regrettable 2008 Supreme Court of Virginia decision dealing with the rights of illegitimate heirs in intestate succession, and (2) amending Virginia's version of the Uniform Principal and Income Act to provide for taxpayer benefit and clarity in matters relating to total return unitrusts, the marital deduction, and the income taxation of trusts. In addition, there were several other enactments along with four opinions from the Supreme Court of Virginia during the one-year period ending June 1, 2009 that presented issues of interest in this area. This article reports on all of these legislative and judicial developments, and it concludes with a call to the 2010 General Assembly to repeal the one-year statute of limitations applicable to paternity claims of illegitimate persons in succession matters.

A Different Perspective on the 2010 Estate Tax Repeal

The following regarding the federal estate tax is taken from a New York Times editorial entitled An Estate Tax Mess, at A26, Dec. 27, 2009:

[U]nder today’s law, when heirs sell inherited property, no capital gains tax is due on the increase in value that occurred during the lifetime of the original owner. 

But when the estate tax is repealed in 2010, the capital gains tax will kick in once the gains in an estate exceed $1.3 million. There’s an extra $3 million exemption for assets left to a spouse. 

The bottom line is this: there will be many more losers than winners under estate-tax repeal, and the losers will be among Americans who are farther down the wealth ladder.