Wills, Trusts & Estates Prof Blog

Arkansas Court Allows Disinterment After Administrator Fails to Advise Family of Burial Wishes

Long v. Alford, --- S.W.3d ----, 2010 Ark. App. 233, 2010 WL 811289 (Ark.App.):  Decdent and Patsy Long were married for seven years, divorced in 1977, and then lived together for over 30 years until decedent died. Decedent's will executed in 2005 specified that decedent had burial arrangements in Pine Bluff and directed Long to make final arrangements. On the day of decedent's death, decedent's only child, Fredye Alford, filed for and received letter's of administration to have decedent's estate administered intestate. The letters were revoked one week later upon a motion from Long. Long then filed an amended claim to have the decedent's body exhumed and burried in Pine Bluff according to the decedent's will.

The lower court denied Long's request to exhume the decedent's body because public policy and the decedent's family were against disinterment, because Long failed to bring the burial wishes to anyone's attention when arrangements were made, and because Long lacked any relationship to the decedent. On appeal, the Court of Appeals of Arkansas reversed and remanded with an order to allow Long to exhume the body. The court gave controlling weight to carrying out the decedent's expressed wishes regarding body disposition, stating that Long's failure to act when arrangements were made should not prevent those wishes from being carried out.

See Long v. Alford, --- S.W.3d ----, 2010 Ark. App. 233, 2010 WL 811289 (Ark.App.).

Special thanks to Ken Coughlin (Elder Law Answers) for bringing this case to my attention.

RPTE to Host 21st Annual Spring Symposia

The ABA Section of Real Property, Trust and Estate Law is sponsoring the 21st Annual 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:

• ƒHear 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 ƒ
• 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

Class Action Suit Claims Men Target Elderly With Bogus Estate Planning Services

A class action law suit has been filed against two California men who allegedly took advantage of senior citizens by offering uncessary or unqualified advice regarding estate planning issues:

• The men held scare-tactic seminars in which they promised senior citizens entitlement planning and pre-qualification for Medi-Cal, California's Medicaid program.
• Although the two men were not licensed to practice law in California, the plaintiffs allege that the men offered legal advice and estate planning services.
• The plaintiffs who paid for the services claim that the services were expensive, worthless, and sometimes fraudulent.  For example, they allege that prequalification for Medi-Cal is not possible.

See Elizabeth Banicki, 'Estate Planners' Ravage Seniors, Class Claims, Courthouse News, March 23, 2010; see also Karen Brady, These are the Estate Planners to Run Away From, Legacy Planner Blog, March 23, 2010 (discussing the fact that one of the men was listed as a certified estate planner by the San Jose Better Business Bureau).

Special thanks to Karen Brady (attorney, Arvada, Colorado) for brining this to my attention.

Top SSRN Downloads

Here are the top downloads from January 27, 2010 to March 28, 2010 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	478	Ten Estate Planning Advantages of Limited Liability Companies Paul L. Caron, University of Cincinnati - College of Law, Date posted to database: February 13, 2010 Last Revised: February 13, 2010
2	286	Law Review Articles You Should've Read (But Probably Didn't) in 2009 Bridget J. Crawford, Pace University School of Law, Date posted to database: January 25, 2010 Last Revised: January 25, 2010
3	225	Estate and Gift Tax Problems of Principals and Agents Under Durable Powers of Attorney Paul L. Caron, University of Cincinnati - College of Law, Date posted to database: January 31, 2010 Last Revised: January 31, 2010
4	131	Check-the-Box Regs and Gift Tax Discounts Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: February 17, 2010 Last Revised: February 26, 2010
5	129	Elder Law Teaching and Scholarship: An Empirical Analysis of an Evolving Field Nina A. Kohn, Edward D. Spurgeon, Syracuse University - College of Law, University of Utah, Date posted to database: February 5, 2010 Last Revised: February 8, 2010
6	118	Burn the Rembrandt? Trust Law's Limits on the Settlor's Power to Direct Investments John H. Langbein, Yale University - Law School, Date posted to database: January 26, 2010 Last Revised: February 18, 2010
7	117	Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight Nancy A. McLaughlin, W. William Weeks, University of Utah S.J. Quinney College of Law, Indiana University Bloomington - Maurer School of Law, Date posted to database: January 27, 2010 Last Revised: January 27, 2010
8	66	It is Logic Rather than Whom You Trust: A Rejoinder to Prof. Cohen Douglas A. Kahn, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: January 21, 2010 Last Revised: February 9, 2010
9	58	Art Deaccessions and the Limits of Fiduciary Duty Sue Chen, United States Court of Appeals for the Tenth Circuit, Date posted to database: January 28, 2010 Last Revised: January 28, 2010
10	48	Testacy and Intestacy: The Dynamics of Wills and Demographic Status Alyssa A. DiRusso, Samford University - Cumberland School of Law, Date posted to database: January 13, 2010 Last Revised: January 13, 2010

Most Estate Planning Tasks Are Priority Tasks

Perhaps the daunting job of assembling an estate plan is simpler for the client if individual tasks are divided into categories such as "must do now" and "do someday later."  At least this is what a recent NY Times article suggests; however, because the "must do now" category includes creating and periodically reviewing a will & any necessary trusts, dealing with beneficiary designation forms for non-probate assets, and pre-designating health-care proxies and guardians, the bulk of the work appears to fall in the "must do now" category.  

See Paul Sullivan, Assemble a Paper Trail, and Make Sure Your Heirs Can Follow It, NY Times, March 24, 2010.  

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

Expanding the Definition of Child in Intestacy Laws for Caregiver Grandparents

Neta Sozonov has published her note entitled Expanding the Statutory Definition of "Child" in Intestacy Law: A Just Solution for the Inheritance Difficulties Grandparent Caregivers' Grandchildren Currently Face, 17 Elder L.J. 401 (2010).

A summary of the article is below:

Grandparents taking on a parental role in raising their grandchildren is a growing trend, and some grandparents assume that a grandchild who they have reared as they would their own child would be entitled to a share of their inheritance upon their death. However, without a will, inheritance rights are controlled by intestacy law, which does not recognize the grandparent caregivers' grandchildren as their heirs. Instead, the grandparent's inheritance passes to the deceased's spouse or children. Further, many grandparent caregivers neither create a will nor formally adopt their grandchild because of the substantial costs involved. This Note examines the effect that current intestacy law has on those raised by grandparent caregivers. The Note discusses the currently existing equitable adoption doctrine, which protects the inheritance rights of an individual who was not the decedent's “child” as defined in intestacy law, but nonetheless had a parent-child relationship with the decedent. The author recommends legislatively amending intestacy statutes to incorporate equitably adopted grandchildren of grandparent caregivers into the definition of “child,” giving these grandchildren equal inheritance rights to those of biological or adopted children.

Finding A Missing Beneficiary on the Internet

Estate planing practitioners may be required to locate long-lost beneficiaries.  The internet makes this task easier.  The following tips should help in this search:

• To search the person's full name, enter the name in search engines enclosed in quotes, such as "John Smith."  
• Search the person's profession, last known residences, or other associated information.  
• Search online services providing criminal and traffic violations.  
• Search for wedding notices if the beneficiary is female and may have changed her last name.
• Be careful about paying for information through an online people locater service, as many do not actually guarantee any information.

See Erica E. Taub, Going Beyond Google to Find a Lost Friend, NY Times, March 24, 2010. 

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

Steps For Practitioners Fearing Lawsuits Resulting From the Estate Tax Repeal

The unexpected estate tax rules in effect for 2010 could result in unintended consequences for some wills, and when unintended consequences occur, lawsuits may occur as well.  Unhappy beneficiaries of these wills may sue the attorney who drafted the will in the first place.  

 Estate planning and tax attorneys should consider sending their clients a letter or email informing their clients of the big estate tax changes and the need to review their wills. This would create a useful paper trail in the event that the attorney is later sued over the client's will or trust.  Following up with a phone call after mailing the letters would make that paper trail even better.

See Dow Jones, Estate Tax Repeal Stirs Lawsuit Fears, March 24, 2010. 

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

The 101 Biggest Estate Planning Mistakes

Herbert E. Nass has published his book entitled The 101 Biggest Estate Planning Mistakes (2010).  Nass is a New York attorney who has helped countless celebrities with estate planning. The book reproduces real-life examples from the wills and trusts of the famous and not-so-famous to show readers the missteps to avoid.   

You might enjoy reading my full review of the book which can be found on JOTWELL, The 101 Biggest Estate Planning Mistakes, March, 25, 2010.

Possible Effect of Proposed Changes to GRAT Laws

Yesterday I posted a blog about H.R. 4849, a bill introduced in the house last week that would make significant changes to grantor retained annuity trusts.  GRATs allow wealthy families to pass wealth while lowering estate and gift tax liabilities.

A recent Forbes article adds insight into the effect of the proposed changes of H.R. 4849:

• Requiring that the GRAT last at least ten years would increase the risk that the person setting up the GRAT will die during the GRAT term, which makes the GRAT less attractive for older clients.
• Requiring that the remainder interest in the GRAT have a value greater than zero increases gift tax liabilities for the person setting up the GRAT.

President Obama suggested reigning in on GRATs in his proposed budgets for 2010 and 2011, something Democrats may favor to fund tax cuts and spending.  The Joint Committee on Taxation estimates that reigning in on GRATs would generate $4.45 billion over ten years.

In the meantime, wealthy families considering a GRAT as a tax saving strategy may want to accelerate their plans.  

See Ashlea Ebeling, Goodbye GRATs?, Forbes, March 24, 2010.