Wills, Trusts & Estates Prof Blog

A Uniform Procedure for Establishing Paternity By Exhumation

Courtney Wheeler (2010 J.D. candidate, Texas Tech University) has published her comment entitled Who's Your Daddy? Exhumation to Establish Paternity Must be Reigned in by a Uniform Procedure, 2 Estate Plan. & Community Prop. L.J. 249 (2009). 

The phrase "Win one for the Gipper" might take on an entirely new meaning in the legal community.  George Gipp, a famous football player at Notre Dame "was a prolific runner, passer and kicker who was Notre Dame's first All-America selection"; however, Gipp died his senior year from pneumonia and a strep infection, which resulted in the coined expression, "Win one for the Gipper."  The Gipp family allowed an ESPN film crew to record the exhumation for the purposes of DNA testing for an upcoming story.  Though this enraged some members of the Gipp family, the family members bringing the claim met the legal requirements for obtaining the DNA test.  This story brings media attention to this fairly new legal concept: exhuming bodies to perform DNA testing to establish paternity.  The question is whether the legal community is prepared to deal with the increased interest and litigation this media attention could bring.  

In addition to the media attention created by the Gipper story, the number of children born out of wedlock has increased dramatically in the last century.  Recently, Paula Monopoli, in her article regarding changes in inheritance law, pointed out that in 2005 alone 1.5 million children were born out of wedlock.  Monopoli further notes that "[c]hildren born out of wedlock . . . were originally barred from inheriting from or though either parent.  American jurisprudence evolved over time to give nonmarital children greater rights, in part due to constitutional concerns."  Generally, courts are recognizing that the constitutional concerns raise equal protection issues, which highlight the ever increasing legal legitimacy of nonmarigal children establishing their inheritance through DNA testing.  being that district courts, probate courts, and state legislatures are accommodating nonmarital children, many state statutes now regulate the use of DNA testing as a scientific tool to prove paternity.  And, beyond just the regulation of DNA testing, previous scholarly article argue DNA testing is a fair way to prove paternity by clear and convincing evidence--even in posthumous situations.

Top SSRN Downloads

Here are the top downloads from November 30, 2009 to January 29, 2010 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	231	Linton Family LLC and the Step Transaction Doctrine Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: December 2, 2009 Last Revised: December 1, 2009
2	188	A Beneficiary as Trust Owner: Decoding Section 678 Jonathan G. Blattmachr, Mitchell Gans, Alvina H. Lo, Milbank, Tweed, Hadley & McCloy LLP, Hofstra University - School of Law, Credit Suisse Private Banking, Date posted to database: November 25, 2009 Last Revised: November 26, 2009
3	122	The Core Nature of Fiduciary Accountability Robert Flannigan, University of Saskatchewan, Date posted to database: December 15, 2009 Last Revised: December 29, 2009
4	104	Pets Trusts: Fido with a Fortune? Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: December 6, 2009 Last Revised: December 6, 2009
5	99	Revisiting Dickman: Are Loans of Tangible Property Gifts? Joseph M. Dodge, Florida State University College of Law, Date posted to database: November 26, 2009 Last Revised: November 26, 2009
6	90	Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following a Divorce or a Marital Separation? Albert Feuer, Law Offices of Albert Feuer, Date posted to database: January 14, 2010 Last Revised: January 14, 2010
7	77	Policing the Good Guys: Regulation of the Charitable Sector Through a Federal Charity Oversight Board Terri Lynn Helge, Texas Wesleyan University School of Law, Date posted to database: November 24, 2009 Last Revised: December 6, 2009
8	60	U.S. Supreme Court Amicus Brief of Law Professors in Support of Respondents, Conkright v. Frommert, No. 08-810 Paul M. Secunda, Marquette University - Law School, Date posted to database: November 25, 2009 Last Revised: November 25, 2009
9	46	Shattering and Moving Beyond the Gutenberg Paradigm: The Dawn of the Electronic Will Joseph Karl Grant, Capital University School of Law, Date posted to database: November 13, 2009 Last Revised: November 25, 2009
10	41	The Uniform Probate Code Authorizes Notarized Wills Lawrence W. Waggoner, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: November 13, 2009 Last Revised: December 13, 2009

Homestead Protection's Application to Forfeiture Resulting From Criminal Conduct

James Tawney (2010 J.D. candidate, Texas Tech University) has published his comment entitled Calling All Criminals, Our State Will Protect Your Crack House: Homestead Protection's Application to Forfeiture Resulting From Criminal Conduct, 2 Estate Plan. & Community Prop. L.J. 227 (2009).  

The introduction to the comment is below: 

As America continues to criminalize conduct, state courts struggle to hold on to the value that homestead protection represents.  At the same time, homestead protection becomes limited because of new laws prohibiting criminal conduct and the illegal use of property.  This comment addresses whether homestead protection should exempt property from forfeiture that has resulted from criminal conduct or illegal use of the property.  Upon addressing this issue, this comment justifies the need for states to adopt legislation that specifically allows forfeiture of the homestead.  To defend this assertion, Part III discusses the history and intentions behind both homestead protection and forfeiture of assets in America.  part IC examines cases highlighting the argument that states should not allow the seizure of a person's property protected under homestead exemption.  Part V focuses on case law holding that forfeiture law trumps homestead protection.  Part VI of the comment addresses how federal law applies to state homestead protection and why the federal courts allowed federal forfeiture statues to preempt state homestead protection.  In addition to the history of homestead protection and forfeiture, this comment uses case law to show that states must adopt legislation that prohibits the use of homestead protection as a defense against forfeiture resulting from criminal conduct. 

Celebrity Estate Planning Flubs Compiled Into a Book

Andrew W. Mayoras and Danielle B. Mayoras wrote the book Trial & Heirs: Famous Fortune Fights! ...and what you can learn from celebrity errors (Wise Circle Books 2009). 

The book's website claims that the book provides estate planning advice by showing the estate planning mistakes that high profile individuals have made.  According to reviews of the book on Amazon, the book is an easy read.  The following excerpt from an Amazon review summarizes some of the stories compiled in the book:

Jimi Hendrix died without a will, leaving his close brother Leon with nothing. Supreme Court Chief Justice Warren Burger wrote his own will, which at 176 words left out basic tax clauses that could have saved $450,000 in estate taxes. Princess Di relied on a "letter of wishes" to give away belongings, and her godchildren got shortchanged.

The publisher's description of the book is as follows:

The highly publicized estate battles of celebrities cast a bright spotlight on the importance of having the proper estate planning. You'll have a front row seat in the courtroom while Trial & Heirs: Famous Fortune Fights! replays the "tabloid drama" and points out what went wrong in these riveting cases.

Special thanks to Alexandra Eaker (attorney) for bringing this book to my attention. 

Addressing the Dilemma of Applying Public Policy to Inheritance Issues

Christopher T. Elmore (2010 J.D. candidate, Texas Tech University) has published his comment entitled Public Policy or Political Correctness: Addressing the Dilemma of Applying Public Policy to Inheritance Issues, 2 Estate Plan. & Community Prop. L.J. 199 (2009). 

A portion of the introduction to the comment is below:

This comment posits that before deeming an inheritance provision invalid as against public policy, a court must point to specific legal authority upon which to infer its interpretation of public policy, rather than reaching into the amorphous cloud of public policy as applied to inheritance.  Additionally, the court must ensure that its application of public policy in all situations, regardless of the medium of the controversial provision.  

By providing a history of the power of testation and an analysis of the inconsistent application of public policy across the states, this comment will analyze the various definitions the courts have provided, as well as the Supreme Court's guidance to solving the dilemma.  It will also analyze the other proposed solutions to dealing with the dilemma, before reaching the ultimate conclusion that the courts must seek actual inferential authority before declaring a provision invalid.  If such provision is declared invalid, then it must be invalid regardless of whether it is found in a contract, will, trust, or other medium.

Ethics and Malpractice Issues for Medicaid Planning

Patricia F. Sitchler (CELA, San Antonio, Texas) has published her article entitled Cutting Edge vs. Over the Edge: Ethics and Malpractice Issues for Medicaid Planning, 2 Estate Plan. & Community Prop. L.J. 175 (2009). 

An excerpt from the article is below:

The ethical duties of an elder law attorney have many of the same requirements as any other practice of law.  The attorney must identify the client, determine the scope of the representation, communicate with the client, maintain client confidentiality, and provide diligent representation.  However, there may be additional considerations.  For example, the attorney must consider the ramifications of communicating solely with an agent when a client's capacity is in question, and identify any conflicts of interest that may arise when spouses and agents are involved in the legal consultations.  This chapter will examine some of the ethical duties specific to an elder law attorney.

Estate Tax Lapse Energizes Anti-Estate Tax Group

According to the Wall Street Jounral, the 2010 estate lapse has re-energized the the American Family Business Institute, a small business trade group that has worked toward repealing the estate tax since the early 1990's:

The gap in the tax . . . has generated a “quick emergence of interest” in the cause and AFBI is pitching permanent repeal as a way to create jobs . . . . In the past, the group has targeted Senate races with TV campaigns, but this time it plans to get involved in House races as well.

See John D. McKinnon, Small Business Group Vows Major Campaign to End Estate Tax, WSJ, Jan. 6, 2010.

ABA-RPTE 2010 Spring Symposia

The ABA Section of Real Property, Trusts & Estate Law is sponsoring the 2010 Spring Symposia in Philadelphia on May 6-7, 2010.

A summary of the program is below:

Whether you are specializing in estate planning or real estate law, are a general practitioner with a wide ranging practice or are a seasoned professional looking to refocus your practice, the Spring Symposia gives you the expertise you need to be at the leading edge of your practice.

Attend this comprehensive CLE Symposia and see how RPTE can help you be a better lawyer. Maximize the value you receive from the time and money you invest in your continuing education. Attend the ABA Section of Real Property, Trust and Estate Law 21st Annual Spring Symposia in Philadelphia May 6 & 7, 2010 to:ƒ

• Hear leading experts discuss the latest legislative, judicial and regulatory developments, meet in small groups to exchange ideas with your peers ƒ
• Learn about today’s most important estate planning topics including: Congress and transfer taxes, captive insurance companies, and tips for success in IRS appeals
• Discover practical solutions to the significant real estate issues of the day including: trends and responses to the credit crisis, green buildings and law firm trends in the down economy ƒ
• Attend our Young Lawyers Institute: Practice Essentials, which will present two separate tracks for skills training in real property and trust and estate law ƒ
• Enjoy social events that will expand your network of valuable professional contacts

Thirteen Year-Old Boy Charged With Murdering Father is Primary Beneficiary of Father's Estate

A 13 year-old Wisconsin boy has been charged with shooting his father to death.  The father left almost his entire estate, valued at nearly $50,000, to the boy. The family claims that the boy suffers from autism, and a mental evaluation has been ordered.

If the boy indeed shot his father to death, this tragic story could turn into a "slayer statute" case. Slayer statutes prevent a killer from being a beneficiary of his victim's will.  The inheritance case may ultimate turn on whether the boy is found mentally competent.

See Channel 3000, Will Names Son Charged in Father's Shooting Death, Jan. 26, 2010. 

Special thanks to Melinda Gustafson Gervasi (attorney, Madison, Wisconsin) for bringing this to my attention. 

Don't Miss the 15th International Wealth Transfer Practices Conference

The IBA Individual Tax and Private Client Committee and supported by the IBA European Regional Forum and ABA Section of Real Property, Trust and Estate Law is co-sponsoring the 15th International Wealth Transfer Practices Conference in London on March 1 & 2, 2010.

A summary of the conference is below:

This is a 'must attend' event for international estate planners, tax and private client lawyers, advisors representing family-owned businesses, trust company officers, insurance specialists, in-house counsel working for trust companies and banks and compliance officers.

Topics include:

• Treaties: The Good, The Bad, and The Ugly I
•  beg your pardon I never promised you a rose garden: The international pre-nuptial agreement - myth or reality? 
• Trust vs. Foundation Private trust companies: friend or foe? 
• It's not cool to own your own Ferrari: planning with difficult assets 
• International Litigation: how to bust a trust, enforce or contest forced heirship and enforce judgments in different jurisdictions