Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, June 25, 2011

Top SSRN Downloads

Ssrn_2 Here are the top downloads from April 25, 2011 to June 24, 2011 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank Downloads Paper Title
1 336 Avoid Being a Defendant: Estate Planning Malpractice and Ethical Concerns
Gerry W. Beyer,
Texas Tech University School of Law,
Date posted to database: May 31, 2011
Last Revised: May 31, 2011
2 115 Planning for Same-Sex Couples in 2011
Patricia A. Cain,
Santa Clara University - School of Law,
Date posted to database: June 9, 2011
Last Revised: June 9, 2011
3 112 The New Super-Charged PAT (Power of Appointment Trust)
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: May 7, 2011
Last Revised: June 13, 2011
4 109 Social Security Benefits Formula 101
Francine J. Lipman, James E. Williamson,
Chapman University - School of Law, San Diego State University - College of Business Administration,
Date posted to database: May 2, 2011
Last Revised: May 2, 2011
5 70 The Trustee and the Trust Protector: A Question of Fiduciary Power - Should a Trust Protector Be Held to a Fiduciary Standard?
Philip J. Ruce,
Thomas Jefferson School of Law,
Date posted to database: April 23, 2011
Last Revised: April 25, 2011
6 69 Shapiro: Palimony and the Estate Tax
Wendy C. Gerzog,
University of Baltimore - School of Law,
Date posted to database: May 24, 2011
Last Revised: May 24, 2011
7 59 Digital Life after Death: The Issue of Planning for a Person’s Digital Assets after Death
John Connor,
Texas Tech University - School of Law,
Date posted to database: April 17, 2011
Last Revised: April 30, 2011
8 45 Which the Deader Hand? A Counter to the American Law Institute’s Proposed Revival of Dying Perpetuities Rules
Scott Andrew Shepard,
The John Marshall Law School,
Date posted to database: June 5, 2011
Last Revised: June 7, 2011
9 35 Who Are the Beneficiaries of Fisk University's Stieglitz Collection?
Alan Feld,
Boston University - School of Law,
Date posted to database: May 1, 2011
Last Revised: May 3, 2011
10 30 American Nonprofit Law in Comparative Perspective
Alyssa A. DiRusso,
Samford University - Cumberland School of Law,
Date posted to database: April 23, 2011
Last Revised: April 23, 2011

June 25, 2011 in Articles | Permalink | Comments (0) | TrackBack (0)

Missing Farrah Fawcett Portrait by Andy Warhol May Be Found

Andy-Warhol-Farrah-Fawcett Farrah Fawcett’s will left two Andy Warhol portraits of Fawcett to the University of Texas at Austin, where the actress studied art. The University, however, only received one portrait.

It seems the “lost” portrait was recently filmed hanging in the bedroom of Fawcett’s former boyfriend, Ryan O’Neal. Viewers of O’Neals’ reality television show, Ryan & Tatum: The O’Neals, caught a glimpse of a remarkably similar portrait to that of the missing portrait hanging above O’Neals’ bed.

O’Neal did not receive anything under Fawcett’s will, but his representative claims that O’Neal has not acted contrary to Fawcett’s final wishes.

See Nick Allen, Ryan O’Neal and the missing painting of Farrah Fawcett by Andy Warhol, The Telegraph, Jun. 24, 2011.

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

June 25, 2011 in Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0) | TrackBack (0)

Friday, June 24, 2011

Nevada’s Restricted LLC and LP Law

Nevada_flag_map Steven J. Oshins, a nationally renowned estate planning and asset protection attorney from Las Vegas, authored a Nevada law in 2009 that creates two Nevada-exclusive business entities. The law creates Restricted Limited Partnerships and Restricted Limited Liability Companies and became effective on October 1, 2009.

Estate planners in Nevada now have the ability to design a LLC and LP using a raised valuation discount ceiling because the statute locks-up the entity’s entire assets for a ten-year period. The ten-year lock up is only a default provision though, and a draftsman can choose to lock assets for any number of years not to exceed ten. A draftsman can also elect to restrict only certain distributions, such as restricting all distributions apart from income.

When asked if he expected other states to enact similar Restricted LLC and LP statutes, Oshins said, “I expect certain, more proactive states to move forward with Restricted LLC and LP statutes. They'll have to do so in order to stop Nevada from having a monopoly on all valuation discount transfers. It will be interesting to see how the other states react to this over the next few years.”

Phil Kavesh, Interview with Steven J. Oshins, Esq. on Nevada Restricted LLC/LP, Wealth Strategies Journal, Jun. 22, 2011.

Special thanks to Jim Hillhouse, WealthCounsel, for bringing this article to my attention.

June 24, 2011 in Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Article on Iowa's Trust Code

BegleiterMartin Martin D. Begleiter (Ellis and Nelle Levitt Distinguished Professor of Law, Drake University Law School) recently published his article entitled Trust Code--The Iowa Trust Code After Ten Years, 59 Drake L. Rev. 265 (2011). The abstract available on SSRN is below:

In the late 1990’s and the early years of the twenty-first century, one of the most significant movements in the area of estate planning was the development by a number of states of trust codes. Many states began with the Uniform Trust Code (UTC) and adapted it to their state’s unique rules. Others developed their trust codes from scratch. Iowa was one of the latter states. While Iowa considered early drafts of the UTC (as well as early drafts of the Restatement (Third) of Trusts) in developing its trust code, the Iowa Trust Code was developed primarily by Iowa practitioners and law professors. They decided the subjects to be covered and the law to be included. The Trust Code was then thoroughly considered by a Section of The Iowa State Bar Association. In a previous article (Martin D. Begleiter, In the Code We Trust - Some Trust Law for Iowa at Last, 49 Drake L. Rev. 165 (2001)), I discussed the writing and enactment of the Iowa Trust Code. This article traces the issues that arose and the amendments considered and adopted and rejected over the ten years since its enactment. Unlike the ULC, which needs to be very deliberate in changing provisions of the UTC due to considerations of the states that have previously enacted it, the Iowa drafters could respond quickly to new developments and concerns. The two articles together describe a unique process of statutory drafting and amendment, the development of the Iowa Trust Code. They also constitute a legislative history of the provisions of a major statute in Iowa law.

June 24, 2011 in Articles, Trusts | Permalink | Comments (0) | TrackBack (0)

Supreme Court Rules on Anna Nicole Smith's Case

26 When Anna Nicole Smith sued in a Texas probate court to retrieve money from her late husband, she also filed for bankruptcy in California. Pierce Marshall, the son of Smith’s late husband, filed a claim with the bankruptcy court for defamation. California federal courts have clashed with Texas probate courts since 1999 over which courts have the authority to resolve these disputes.

In Stern v. Marshall, No. 10-179, the Supreme Court ruled against Smith’s estate in a 5-4 decision. The Court held that the Texas probate court had the authority to resolve the case. Chief Justice John Roberts wrote, “The [federal] bankruptcy court below lacked the constitutional authority to enter final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor’s proof of claim.”

See David G. Savage, Anna Nicole Smith heirs are losers in Supreme Court, Washington Bureau, Jun. 23, 2011.

Special thanks to Matthew Bogin (attorney, Rockville, Maryland), David Luber (attorney, Hollywood, Florida) and Jim Hartnett (attorney, Dallas, Texas) for bringing this to my attention.

June 24, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Huguette Clark's Will Filed With Manhattan Court

Images As I previously blogged, reclusive heiress Huguette Clark passed away on May 24 of this year. Clark’s will was filed with a Manhattan court this week, allowing the world to see where Clark’s estimated $400 million estate will go.

Clark’s will established the Bellosguardo Foundation using the majority of her estate’s assets. The foundation will promote the arts and have its home at Clark’s California estate. The will also gave the foundation the art in Clark’s former apartment, including pieces by Pierre-Auguste Renoir, John Singer Sargent, and William Merritt Chase. Additionally, the foundation will acquire a large photography collection, rare books, and a Stradivarius violin.

Under Clark’s will, a 1907 canvas by Claude Monet from his “Water Lilies” series will go to the Corcoran Gallery of Art in Washington, D.C. Clark’s immense doll collection and the majority of the remainder of her estate will go to Hadassah Peri, Clark’s “loyal nurse, friend and companion.”

The will also left half a million each to Clark’s attorney and accountant. Both men are involved in a criminal inquiry into their handling of Clark’s finances. The two men are also named as the co-executors under the will.

Clark did not leave behind any children and included the following statement in her will:

I intentionally make no provision in this my last will testament for any members of my family, having had minimal contacts with them over the years. The persons and institutions named herein as beneficiaries of my estate are the true objects of my bounty.

See Stephen Miller, Heiress Gives Millions to Nurse, Arts, The Wall Street Journal, Jun. 23, 2011; Bill Deman, Heiress Huguette Clark’s Will Leaves $1 Million to Advisers, MSNBC, Jun. 22, 2011; Liz Goodwin, Reclusive Copper Heiress Leaves $38 Million to Nurse, The Lookout, Jun. 23, 2011.

Special thanks to Joel Dobris(Professor of Law, UC Davis School of Law), and Neda Garrett (Attorney at law, Plano, TX), and David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm)for bringing this article to my attention.

June 24, 2011 in Current Events, Estate Administration | Permalink | Comments (1) | TrackBack (0)

Thursday, June 23, 2011

Unsettled Issues Surrounding Estate Tax Revisions

TaxesAt the end of last year, lawmakers approved tax revisions that set the maximum tax rate at 35% and establish a $5 million exemption for 2011 to extend through 2012. The revisions allow executors of estates of individuals who died in 2010 to choose between paying no estate tax and forfeiting the step-up basis or taking the $5 million exemption and 35% rate under the new law.

The revisions also unify the generation-skipping tax, estate tax, and gift tax regimes, giving all three regimes the $5 million exemption and 35% rate. The new law is set to revert to a $1 million exemption and 55% tax rate for all three regimes in 2013 absent action from Congress.

Additionally, the revisions include a feature that allows for a deceased spouse’s unused exemption amount to pass to his or her surviving spouse. The feature only applies to spouses who die before 2013 and after 2010 and does not apply to the generation-skipping tax.

There are many uncertainties surrounding the tax revisions, however. For example, the IRS has yet to release Form 8939 which gives executors the choice between which tax regime to use for estates of those who died in 2010. Additionally, the IRS has yet to publish Publication 4895 which is meant to provide guidance in the regime election process.

Adding to the confusion is the fact that the carryover basis for executors of estates of those who died in 2010 who elect to pay no estate tax may increase by $1.3 million (not to exceed the fair market value of the assets). The modified carryover basis regime becomes more perplexing when multiple assets and heirs exist.

According to attorney David Leibell, “There’s a lot of information to take in, and what’s scary is it’s only relevant for the next two years.”

See Jerry Gleeson, Estate Tax Revisions Leave Some Issues Unsettled Until 2013, Registered Rep, May 18, 2011.

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

June 23, 2011 in Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (1) | TrackBack (0)

Helmsley Mansion Up For Sale… Again

Leona-hem Less than a year after purchasing the mansion previously owned by Leona Helmsley, the undisclosed owner has put the 40-acre estate back up for sale. The owner bought the mansion for $35 million last year and is now asking for $42.9 million. The twenty-eight room mansion, known as Dunnellen Hall, made headlines last fall after the buyer bought it from the Helmsleys’ charitable trust for $90 million less than the trust’s initial $125 million asking price.

See Leona Helmsley Mansion Back on the Market, The Huffington Post, Jun. 22, 2011.

Special thanks to David S. Luber (Attorney at law, Florida Probate Attorney Wills and Estates Law Firm) for bringing this article to my attention.

June 23, 2011 in Current Events | Permalink | Comments (0) | TrackBack (0)

Tax Whistleblower Loses Cases on Dillon Fortune

Whistleblower-resized-600 Clarence Dillion was a famous Wall Street journal financer, and he left behind two children when he died in 1979. One of Dillon’s children, Dorthy Dillon Eweson, died in 2005. In 2008, William Prentice Copper III, the boyfriend of the widow of one of Eweson’s grandchildren, Ann Peipers, filed with the IRS’s new Whistleblower Office two formal requests for an informant’s bounty. The requests claim that the Dillon family avoided $100 million in estate taxes by failing to pay generation-skipping tax and by ignoring a 1918 trust created by Dillon.

The IRS rejected Cooper’s requests, and Cooper sued asking the court to order the IRS to conduct an investigation. Last summer, Judge Dian L. Kroupa, a U.S. Tax Court Judge, ruled that Congress gave the tax court the authority to hear Cooper’s claims. Judge Kraupa stated that the court’s jurisdiction included any determination to deny awards and was not limited to determinations on the amount of awards. This week, however, Judge Kroupa granted the IRS’s motion to dismiss, stating that the court’s jurisdiction in a whistleblower case existed “only with respect to the [IRS] Commissioner’s determination of award.” Judge Kroupa stated, “[o]ur jurisdiction…does not contemplate that we redetermine the tax liability on the taxpayer.”

Further, Judge Kroupa stated that unless the IRS begins a legal or administrative action, then there can be no claim to a whistleblower bounty. “[B]ecause a whistleblower award is calculated as a percentage of collected proceeds, if the [IRS] collects no proceeds there can be no whistleblower award.”

For more information on the IRS Whistleblower Office and its history, see William P. Barrett, Tax Whistleblower Loses Dillon Fortune Case, Jun. 21, 2011.

Special thanks to Michael R. Loveridge (Attorney, Slat Lake City, UT) for bringing this article to my attention.

June 23, 2011 in Estate Tax, Generation-Skipping Transfer Tax, New Cases | Permalink | Comments (0) | TrackBack (0)

Domestic Partnership Benefits Upheld by Wisconsin Court

Domestic_Partnership_Benefits_and_Obligations_Act Wisconsin Governor Jim Doyle signed domestic partnerships into law in June 2009. The law grants same-sex couples limited legal protections, including the right to take a family medical leave to care for a same-sex partner and the right to visit a partner in the hospital. An antigay group called Wisconsin Family Action brought suit alleging that the new law violated the state’s constitutional amendment than bans marriage equality.

Monday, a Wisconsin court held that the domestic partnership law does not violate Wisconsin’s constitution. The court provided research and material in its ruling showing that in 2006 voters were told by proponents of the antigay marriage amendment that the amendment would not prohibit domestic partnership benefits. In the opinion, Wisconsin Circuit Court Judge Daniel R. Moeser wrote:

Ultimately, it is clear that Chapter 770 does not violate the Marriage Amendment because it does not create a legal status for domestic partners that is identical or substantially similar to that of marriage. The state does not recognize domestic partnership in a way that even remotely resembles how the state recognizes marriage. Moreover, domestic partners have far fewer legal rights, duties, and liabilities in comparison to the legal rights, duties, and liabilities of spouses.

Following the court’s ruling, Katie Belanger, Executive Director of Fair Wisconsin stated:

We are pleased that the Court upheld the limited protections provided by domestic partnerships because they are essential in allowing committed same-sex couples to care for each other in times of need. This is an exciting day for Wisconsin. Domestic partnerships marked our state's first step toward full equality in nearly 30 years. Judge Moeser's decision will ensure that we can continue advancing equality for lesbian, gay, bisexual and transgender Wisconsinites in the years ahead.

Wisconsin Court Upholds Domestic Partner Benefits: Lambda Legal and Fair Wisconsin Celebrate Victory, Lamda Legal, Jun. 20, 2011.

Special thanks to Naomi R. Cahn (John Theodore Fey Research Professor of Law, George Washington University) for bringing this article to my attention.

June 23, 2011 in Current Events, New Cases | Permalink | Comments (0) | TrackBack (0)