Wills, Trusts & Estates Prof Blog

Planning for the Last Goodbye

More funerals now focus on celebrating the decedent’s life in a more personalized, less religious way. The internet has helped change funerals and the funeral planning process by streaming funeral services online, offering online tutorials to help individuals choose between burial or cremation, and helping individuals plan funerals through various websites. On such website, MyWonderfulLife.com, offers trend and themed funeral ideas.

More people are also taking a proactive role when it comes to planning their owns funerals. It is not uncommon to hear stories of mothers who planned their own funerals for years or of fathers writing their own obituaries. While some people may find the idea of planning their own funerals macabre, many others find joy and comfort in planning their final party.

See Kathleen A. Hughes, Planning That Final Party, The Wall Street Journal, Oct. 31, 2011.

Protecting Perpetual Conservation Easements

Cameron Johnson (2011 J.D. candidate, University of Utah, S.J. Quinney College of law), recently published his note entitled Perpetuating Perpetuity, 31 Utah Envtl. L. Rev. 437 (2011). An abstract of the note is below:

TET is the only known example of a land trust that has become bankrupt in the United States. Its failure raises a series of critical questions about the management and mechanics of conservation easements. The organization's failure brings the potential difficulty of protecting land in perpetuity by means of a conservation easement sharply into focus. The issue of maintaining perpetual conservation easements raises numerous unanswered questions. For example, the bankruptcy court's suggested chain of succession for the easements and lands that TET held is logical, but one wonders if this is the most effective way to guarantee that those assets will be protected in perpetuity. Are there other tools or legal mechanisms available to land trusts to avoid a fate similar to TET's? Is perpetuity a realistic legal timeline for any conservation easement? What can a land trust do to help ensure its own longevity and fulfill its duty to manage a conservation easement for perpetuity? Do local or state governments have a duty to play a more prominent role in the selection and administration of conservation easements? These are questions lawyers and government officials must begin to confront and examine if conservation easements are to continue as the most popular method of private land conservation for years to come. Put more succinctly by Mike Kelly of the San Diego Conservation Resources Network, "[w]e have two problems-what to do with these particular parcels of land and . . . how to prevent similar (failure) in the future." This Note seeks to begin that conversation by exploring these questions.

Super Committee May Reduce Deficit by Targeting Gift Tax

The twelve-member Joint Committee on Deficit Reduction (the Super Committee) has the task of finding $1.5 trillion in deficit reductions over ten years by reducing expenditures and increasing revenues. According to Handler Thayer LLP, the 2012 gift tax exclusion may be at risk.

Some speculate that the Super Committee will reduce the threshold for GST and estate tax to $3.5 million and will reduce the gift tax threshold to $1 million. Dave Berek, Partner in the Advanced Planning and Family Office of Prative Group at Handler Thayer, LLP said:

Given the current 'Buffett Rules' tax-the-rich environment, overall tax planning and gift tax thresholds that are now available could be at risk for families. We recommend engaging in planning sooner rather than later; not much good can come from the committee's recommendations from a wealth preservation perspective.

See Handler Thayer LLP Tax Alert: LEGISLATIVE RISK—Super Committee Warrants Immediate Consideration of Your Long and Short Term Estate Planning by Year End, MarketWatch.com, Oct. 27, 2011; Adam Bair, Super Committee May Target Gift Tax For Deficit Reduction, Wealth Strategies Journal 2.0, Oct. 28, 2011.

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

Top SSRN Downloads

Here are the top downloads from August 31, 2011 to October 30, 2011 from the SSRN Journal of Wills, Trusts, & Estates Law for all papers announced in the last 60 days.

Rank	Downloads	Paper Title
1	299	Excluding Expert Valuation Testimony Wendy C. Gerzog, University of Baltimore - School of Law, Date posted to database: September 26, 2011 Last Revised: September 26, 2011
2	170	Anticipating Will Contests and How to Avoid Them Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: September 10, 2011 Last Revised: September 10, 2011
3	160	Conservation Easements and the Doctrine of Merger Nancy A. McLaughlin, University of Utah S.J. Quinney College of Law, Date posted to database: September 7, 2011 Last Revised: September 29, 2011
4	146	To Own or not Own Your Life Insurance Policy? David Joulfaian, U.S. Department of the Treasury, Date posted to database: August 28, 2011 Last Revised: August 30, 2011
5	111	Case Law Update Gerry W. Beyer, Texas Tech University School of Law, Date posted to database: September 24, 2011 Last Revised: September 24, 2011
6	92	Nonprobate Assets Bridget J. Crawford, Rachel Schwartzman, Pace University School of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: August 31, 2011 Last Revised: August 31, 2011
7	81	A Revised Canadian Test for Fact-Based Fiduciary Accountability Robert Flannigan, University of Saskatchewan, Date posted to database: October 6, 2011 Last Revised: October 6, 2011
8	70	Passing Estate Tax Values Through the Eye of a Needle Calvin H. Johnson, Joseph M. Dodge, University of Texas at Austin - School of Law, Florida State University - College of Law, Date posted to database: September 2, 2011 Last Revised: September 19, 2011
9	69	The Federal Arbitration Act and Testamentary Instruments David Horton, Loyola Marymount University - Loyola Law School Los Angeles, Date posted to database: August 29, 2011 Last Revised: October 18, 2011
10	59	When and Why Does Unjustified Enrichment Justify the Recognition of Proprietary Rights? Robert Stevens, University College London - Faculty of Laws, Date posted to database: September 21, 2011 Last Revised: September 22, 2011

How Steve Jobs Drove Without License Plates

For years, many people wondered how Steve Jobs got away with driving his silver Mercedes SL55 AMG without license plates. Rumors existed that Jobs either was daring the California police to pull him over or that California authorities had given Jobs a special dispensation.

ITWire interviewed a former Apple security executive and discovered the real reason for the missing plates: California gives car owners six months to get license plates for new vehicles, and Jobs would have his leasing company switch out his silver Mercedes every six months for a new, identical model.

See Justin Hyde, Latest Steve Jobs Mystery Revealed: How He Drove Without License Plates, Yahoo! Autos, Oct. 27, 2011.

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

Happy Halloween

Many law school classes have one or more holidays which are especially relevant. For example, Family Law has Valentine's Day, Mother's Day, and Father's Day, Labor Law has Labor Day, Environmental Law has Earth Day, Military Law has Memorial Day, and Law and Religion has Christmas, Hanukkah, Ramadan, etc.

Halloween, with its fascination with death, may be the most relevant holiday to those who teach wills, trusts, estates, probate, and estate planning.

So, however you celebrate, have fun and be safe!

Richard Egan's Estate Receives Forty Percent Penalty

The legal team defending Richard Egan, the founder of Fidelity International Currency Advisors, witnessed a victory last December when they were able to disallow $65,896.10 of the $220,944.65 in litigation expenses the federal government attempted to charge them with. However, Egan still had to pay $80 million in tax and penalty for its doomed tax shelter.

The legal team attempted to cut the $80 million penalty in half. The IRS argued, however, that a 40% penalty for gross valuation misstatements applied. On October 21, 2011, the United State Court of Appeals for the First Circuit agreed with the IRS and applied a 40% penalty against Richard Egan's Estate.

For an overview of this decision see Peter J. Reil, Richard Egan Estate Subject to 40% Penalty on Doomed Shelter, Forbes, Oct. 28, 2011.

A Historic Look at Wills and Trusts

Neil Jones (Faculty of Law, University of Cambridge) recently published his article entitled Wills, Trusts and Trusting from the Statute of Uses to Lord Nottingham, 31 J. of Legal History 273 (2010). The abstract available on SSRN is below:

Medieval feoffments to the uses of a last will provided, in effect, a power to devise freehold land, otherwise generally impossible at common law. The Statute of Uses 1536 put an end to this mechanism, and in 1540 the Statute of Wills provided, within limits, a substitute power to devise. But conveyances inter vivos upon trust for the performance of wills continued to be made after 1540; and the distinction in practice between such trusts and wills was less clear than might be supposed: wills under the statutory power were understood as conveyances; executors were frequently trustees in a narrow sense; and the perception that executors were, in a broader sense, trusted, had substantive effects. In understanding wills, trusts and trusting after the Statute of Uses, distinctions between those who are 'trustees' and those who are not, or between conveyances upon trust and wills, may be an essential starting-point in bringing order to the sources, but cannot fully reflect the complexity of contemporary arrangements.

Digital-Property Stored on the Cloud

According to a recent UK survey of 2,000 internet users, internet users collectively store at least $3.2 billion worth of personal videos, music, photos, and books in the cloud. Over half of those surveyed considered digital property like their Kindles, iTunes, online photos, and even online avatars to be “treasured possession,” but less than one-third realized that their password-protected digital property was stored by a third party or that they were even using the so-called cloud.

After hearing of the survey, Fabio Trolini, VP of Cloud at Rackspace said, "The cloud is becoming more and more part of our everyday work and personal life. [With the large investment Internet users] seem to be making in digital treasures, it's imperative that people consider the associated security and legacy implications."

Helen A.S. Popkin, Who Gets Your Internet Passwords When You Die?, MSNBC, Oct. 13, 2011.

 

Article on Conservation Easements and the Doctrine of Merger

Nancy A. McLaughlin (Professor of Law, University of Utah, S.J. Quinncey Colleg of Law) recently published her article entitled Conservation Easements and the Doctrine of Merger, 74 Duke J. of Law & Contemp. Prob. (2011). The abstract available on SSRN is below:

 

Conservation easements raise a number of interesting legal issues, not the least of which is whether a conservation easement is automatically extinguished pursuant to the real property law doctrine of merger if its government or nonprofit holder acquires title to the encumbered land. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. This article also explains that extinguishing conservation easements that continue to provide significant benefits to the public through the doctrine of merger would be contrary to the conservation and historic preservation policies that underlie the state enabling statutes and the federal and state easement purchase and tax incentive programs.