Wills, Trusts & Estates Prof Blog

Family Property Law Casebook

Thomas P. Gallanis (N. William Hines Chair in Law, University of Iowa) has just published the Fifth Edition of the book Family Property Law: Cases and Materials on Wills, Trusts, and Future Interests (Foundation Press 2011). The publisher’s description of the book is below:

Foundation Press is delighted to present the Fifth Edition of this highly regarded casebook, known for its innovative emphasis on the connection between the law of trusts and estates and the changing American family. The Fifth Edition incorporates the most recent material from the Uniform Law Commission and the American Law Institute, and discusses the very latest “hot” topics, including trust protectors, directed trusts, trust decanting, family offices, and donor standing to enforce charitable trusts.

The authors of this book have been at the forefront of law reform in the field of trusts and estates, and this tradition continues under the authorship of Thomas Gallanis, who serves as associate reporter for the Restatement Third of Trusts, as the assistant executive director of the Uniform Law Commission’s Joint Editorial Board for Uniform Trust and Estate Acts, as co-chair of the uniform laws committee within the ABA Section on Real Property, Trust and Estate Law, and as the reporter for a new drafting committee preparing a uniform law on powers of appointment.

The Fifth Edition has been reorganized to assist instructors in deciding which material to include in a standard three- or four-credit basic course in trusts and estates, and also includes material for a two- or three-credit advanced course. The book emphasizes problems and questions to facilitate classroom discussion and analysis. Among many other things, the book teaches doctrine and policy, planning and drafting, case analysis and statutory interpretation.

The teachers’ manual will be ready by early June. As revised for the Fifth Edition, the manual includes extensive syllabi and notes for classroom teaching. In addition, for instructors adopting the book, overheads and PowerPoint slides will be available, keyed to each chapter.

Migrating Trusts to New Hampshire

Joseph F. McDonald, III (Attorney at Law, Concord, NH) recently published his article entitled Migrating Trusts to New Hampshire: The “Why” and the “How", 51 N.H. B.J. 34 (Winter 2010). An excerpt from the introduction is below:

This article discusses those circumstances in which it may be possible for New Hampshire lawyers to help move a foreign irrevocable trust here, and what should be done to assist in accomplishing any given set of trust migration objectives while avoiding the many potential pitfalls in doing so. The primary focus will be on moving from the eight most proximate states in the northeast from which trust migration to New Hampshire is perhaps most likely – the five other New England states and New York, New Jersey and Pennsylvania. The analytical framework described herein for determining what must be done in those states will generally apply if you are dealing with a trust located in another state. For convenience, a trust’s current non-New Hampshire jurisdiction will occasionally be referred to as the “original trust state.”

A word of caution at the outset: there is tremendous ferment in the various state legislatures as the inter-jurisdictional competition for trust situs continues unabated (indeed, even accelerates). The trust laws in all of the states are evolving, some faster than others. Therefore, this article has a limited shelf life as an accurate resource to practitioners.

Parents Sue Facebook Over Crime Scene Photos of Dead Daughter

Caroline Wimmer, 26, was discovered by her parents after she was murdered with a hairdryer cord. Paramedic Mark Musarella took pictures at the scene and posted them on Facebook. Musarella pled guilty to disorderly conduct, forfeited his EMT certification, and was ordered to complete 200 hours of community service.

Caroline’s parents are suing Facebook in an effort to recover the image and identify who downloaded it so they can prevent further dissemination. A Facebook spokesman says that the case is without merit and that Facebook will fight it vigorously. The couple is also suing Caroline’s murderer, Musarella, the city of New York, Fire Commissioner Salvatore J. Cassano, Richmond University Medical Center, and Greenleaf Arms Incorporated.

Caroline’s mother is also traveling to the state capitol to support pending legislation that would raise this type of offense to a Class E felony and enact harsher penalties for people like Musarella.

See Jordan Ossad, Parents Sue Over Facebook Photos of Dead Daughter, CNN, Mar. 29, 2011.

Special thanks to Jerry Cooper (author, Trust Advisor Blog) for bringing this to my attention.

Pre-Embryos in Probate

Bridget M. Fuselier (Associate Professor of Law, Baylor Law School) recently published her article entitled Avoiding a Science Fiction Soap Opera: Excluding the Pre-Embryo From Probate, 74 Tex. B. J. 224 (March 2011). The introduction is below:

“The saddest aspect of life right now is that science gathers knowledge faster than society gathers wisdom.” While this concept is expressed incessantly, it does not make it any easier to deal with the very difficult realities that come about as a result of the seeming warp-speed pace of scientific discovery and the glacial pace of understanding, wisdom, and a workable legal framework to go along with it. As we have seen the fertility industry develop since the first “test tube” baby in 1978, society has also witnessed the resulting legal and emotional issues that are more complicated than could have been imagined.

Civil Unions in France

When France created its civil union system in 1999, it never anticipated that there would be two civil unions per every three marriages by 2010 or that 90% of such unions would be between straight couples by 2009. French couples, for varying reasons, are increasingly shunning marriage and opting for civil unions instead. Some benefits of civil unions include:

• They allow couples to file joint tax returns.
• They exempt partners from inheritance taxes.
• They permit partners to share insurance policies.
• They make partners responsible for each other’s debts.
• They can be between homosexual couples.
• Forming a civil union requires little more than one appearance before a judge and ending one requires a registered letter.
• They provide many of the benefits that marriage does without requiring this anti-marriage generation to get married.

See Scott Sayare and Maia De La Baume, In France, Civil Unions Gain Favor Over Marriage, N.Y. Times, Dec. 15, 2010.

CLE on Trust Administration Issues for Same-Sex Spouses

The ABA Section of Real Property, Trust and Estate Law is sponsoring a 90-minute teleconference and live audio webcast entitled Same-Sex Spouses, Partners and Adult Adoptions: Trust Administration Issues with Beneficiary Relationships on April 5. The program information is below:

This program will discuss fiduciary and trust administration issues when a beneficiary has a same-sex spouse or partner.

The program will address:

• How recognition of a beneficiary’s marital status and descendants can affect the trustee’s powers and duties in the context of UTC and common law principles, state support obligations and the settlor’s intentions. Because the laws recognizing same-sex marriage differ by jurisdiction and the federal DOMA allows a state to disregard same-sex marriages, a trustee may face conflicting rules when a trust is sitused in one state and has beneficiaries residing elsewhere;
• Two high profile adult adoption cases, one of which was a substitute for gay marriage. Issues include challenges to recognition as descendants and interpretation of trust language;
• Various ways attorneys and fiduciaries can mitigate litigation risks as they navigate the complex and changing legal landscape of laws governing nontraditional relationships.

Postmortem Right of Publicity

While we think of people like Rosa Parks, Albert Einstein, Babe Ruth, and Martin Luther King Jr. as part of our cultural heritage, available for everyone to use, each of their identities are claimed as private property usable only after receiving permission and paying a fee.

For most of history, a person’s identity could not be owned. Beginning in 1953, we began construing identity as a property interest, known as the right of publicity, that could be licensed or sold. The right of publicity allows people to control the use of their images and names during their lives. The right of publicity after death is governed by state laws, which vary remarkably. While the right of publicity ends at death in some states, other states allow control to be secured for a certain amount of years, and others allow eternal control.

All the differing state laws have resulted in uncertainty regarding what is privately owned under the right of publicity. There has been much recent litigation over the right of publicity, but nothing has been clarified on a national level. “Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death. After all, sometimes the dead should be allowed to simply rest in peace. “

Ray D. Madoff, The New Grave Robbers, N.Y. Times, Mar. 27, 2011.

Brooke Astor's Son and Attorney Appeal Convictions

I previously blogged about Brooke Astor’s son, Anthony Marshall, and her attorney, Francis X. Morrissey Jr., being convicted in October 2009 of a series of charges related to defrauding and stealing millions of dollars from Mrs. Astor while she battled Alzheimer’s. Justice Bartley sentenced both of them to the minimum or one to three years in prison.

The two men filed appeals to their convictions with a state appellate court in Manhattan on Monday. In these appeals, the two men argue that Justice Bartley should have questioned the jurors after one juror said that she felt threatened and asked for removal from the case. Mr. Marshall also argues that his power of attorney gave him the right to increase his manager’s salary and that his mother was competent when she signed a codicil directing millions their way. The two men remain free pending their appeal, and the prosecution must now file a response.

See John Eligon, Guilty Verdicts Appealed in Brooke Astor Will Case, N.Y. Times, Mar. 28, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this to my attention.

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Fight Over Elizabeth Taylor's Fortune Begins

I previously blogged about Elizabeth Taylor’s fortune here and here. She requested that her jewelry collection, valued at over $150 million, be auctioned off to benefit the Elizabeth Taylor AIDS Foundation and amfAR. She split the rest of her fortune between her four children and other charities.

The money she made during her life isn’t causing any problems, but friction is already arising between family, charities, and business managers over the money she will make after death. Elizabeth Arden will continue to sell White Diamonds (which made $77 million last year), and the estate will also profit from film re-releases and other merchandising. Much like Elvis and Michael Jackson, Taylor failed to understand and plan for money made after death.

See Rob Shuter, The Fight Begins Over Elizabeth Taylor’s Fortune, Pop Eater, Mar. 28, 2011.