Wills, Trusts & Estates Prof Blog

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

Wednesday, July 31, 2013

Widow Prompts Autopsy Reform


In 2004, Jerry Carswell unexpectedly died after being admitted to Christus St. Catherine Hospital in Katy, Texas for kidney stones.  Due to an incomplete autopsy, Carswell’s death remains unknown and his widow, Linda, still waits to receive his heart back, which currently sits in a pathologist’s lab.

Autopsies have become increasingly rare with an autopsy being conducted in only five percent of hospital deaths.  However, many grief-stricken families desperately want answers that an autopsy may provide, and all too often these families don’t know their rights when dealing with coroners, medical examiners, and health-care providers.

Because Linda Carswell felt she had not been informed of her rights immediately following her husband’s death, she teamed up with Texas Representative Bill Callegari to introduce the Jerry Carswell Memorial Act.  Texas hospitals are now required to use a standardized autopsy consent form spelling out the rights of families following the death of a loved one in a medical facility.  This form details “the circumstances under which a medical examiner is required to conduct an investigation; that, in cases not taken by a medical examiner, survivors have a right to have an independent pathologist conduct a clinical autopsy; that the family has a right to place special limitations on the examination; and that the person giving consent for the autopsy controls the release of the remains.”

See Marshall Allen, Why Can’t Linda Carswell Get Her Husband’s Heart Back?, ProPublica, Dec. 15, 2011.

July 31, 2013 in Current Affairs, Death Event Planning, New Legislation | Permalink | Comments (1) | TrackBack (0)

Is Canadian Court Adopting Nazi-Like Tactics in Fighting Nazism?


As I have previously discussed, Robert McCorkell’s sister recently had a New Brunswick judge issue a temporary injunction on public policy grounds to prevent his estate, and valuable coin collection, from being sent out of province and into the hands of the neo-Nazi organization, the National Alliance.

While other groups like the Centre for Israel and Jewish Affairs and the Alabama-based Southern Poverty Law Center have announced plans to take further action, an interesting question arises: Is the Canadian court adopting Nazi-like tactics to combat Nazism?

In the 1930s and 40s, the Nazis legalized, or at least facilitated, the theft of property from European Jews for the sole reason the property was owned by people the Nazis despised for their religious beliefs.  Now, this New Brunswick court is considering authorizing the “theft” of property merely because it will be delivered to an organization despised for their ideology.  So is the National Alliance sufficiently loathsome to justify the deprivation of property or is this slope just a little too slippery?

See Karen Selick, You Don’t Fight Nazis by Becoming a Nazi Yourself, The Huffington Post, July 29, 2013.

July 31, 2013 in Current Affairs, Estate Administration, Religion, Wills | Permalink | Comments (0) | TrackBack (0)

Indian Princesses Finally Inherit Their Father’s Renowned Fortune


The daughters of Sir Harinder Singh Brar, the late Maharaja of Faridkot, are set to inherit his estimated $4 billion estate after an Indian court recently ruled his will to have been fabricated.  The will had granted the estate to a trust run by palace officials for their exclusive benefit.

The princesses, Amrit and Deepinder Kaur, already in their 80s, have been fighting for decades for control over the legendary estate in India’s Punjab state.  The Maharaja died in 1989 at the age of 74 after the death of his only son.  His other daughter, Maheepinder, died in 2002 at age 62.

Included in the massive estate is “a 350-year-old fort, palaces, and forests lands in Faridkot, a mansion surrounded by acres of land in the heart of India’s capital New Delhi and similar properties across four states.”  His estate also includes an aerodrome spread over 200 acres, a stable of 18 cars, and over 10 billion rupees worth of gold and jewelry.

See Nirmala George, Indian Princesses Inherit $4 Billion Fortune After Will Ruled Fabricated, ABC News, July 29, 2013; see also Dean Nelson, Indian Princesses Win 2.5 Billion Inheritance After Epic Battle Over Father’s Will, The Telegraph, July 29, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

July 31, 2013 in Current Affairs, Current Events, Estate Administration, Intestate Succession, Wills | Permalink | Comments (0) | TrackBack (0)

Lee Caplin Capitalizes on Faulkner's Works For Heirs

FaulknerAs I have previously discussed, William Faulkner's estate settled a copyright lawsuit against Northrop Grumman Corp. and The Washington Post Co. The estate sued those parties over a quote from Faulkner's literary work.

Currently, ex-federal prosecutor and movie producer, Lee Caplin is the legal representative of Faulkner Literary Rights LLC. The LLC owns the rights to Faulkner's books and property. Caplin represents Faulkner’s heirs. Faulkner's heirs say their goal is to honor Faulkner's work and raise money. Per the heirs request, Caplin is working on capitalizing on Faulkner's literary works.

"I think my grandfather would come back to haunt me in my dreams if he felt what we were doing was out of place." says grandson, Paul Summers.

See Andres Gonzalez Great Estates, Wall Street Journal,  Jul. 25, 2013.

July 31, 2013 in Books, Estate Administration | Permalink | Comments (1) | TrackBack (0)

Taxable Income From Upside-down Insurance Policies

GavelMichael and Kathyrn were married. Each had a benefit plan that permitted them to purchase with a single premium a variable life insurance policy with a three-year lapse free guarantee. Before the three-year term the benefit, plan requirements terminating the policies. Both policies were penalized for cancellation at the time of the distribution. The penalty amount exceeded the policy value. As a result, neither policy paid out any money. Because neither policy paid out neither believed they had to report any taxable income from the distribution on their income tax. The government issued an $81,000 deficiency unreduced by the penalties. 

In Schwab v. Commissioner, the court determined that the value of the policies were the same as the remaining value of the life insurance coverage until the lapse occurred and thus the policies should be taxed. The court held further that the policies fair market value is recognized taxable income. Additionally, penalties can change the fair market value. However, there is no standard measure of a life insurance policy’s fair market value.

See Kathy Sherby That Underwater Policy Does Not Have Any Value, Right?, Trust Bryan Cave,  Jul. 30, 2013.

July 31, 2013 in Income Tax, Non-Probate Assets | Permalink | Comments (0) | TrackBack (0)

Article on Mutual Liberalities

SsrnIoan Popa (Independent) has recently published an article entitled, Mutual Liberalities, Romanian Review of Private Law No. 2/1013 (July 2, 2013). Provided below is the abstract from SSRN: 

The study entitled "Mutual liberalities" proposes to analyze two legal institutions in an extremely brief manner, in the light of the present Civil Code, the first (mutual gifts) not expressly regulated, and the second (mutual wills) being expressly forbidden. 

Following the performed analysis which comprised also among others, the explanation of the phrase "liberal intention" of the essence, within the limits of an extremely doubtful doctrine, in the matter of the liberalities, we reached various conclusions in relation to the premises from which the legislator began the regulation or the interdiction of certain types of liberalities. Such being the case, we will notice that the mutual gifts may be permitted only under certain conditions, and the nullity affecting the mutual wills is not justified.

July 31, 2013 in Articles, Wills | Permalink | Comments (0) | TrackBack (0)

Massachusetts Cracks Down on Abusing the Elderly's Financials

DementiaThe Financial Industry Regulatory Authority, the Massachusetts state regulatory body, is scrutinizing nontraditional, illiquid investments that some financial planners are selling to elderly that lack sophistication in investing. Reports show that the elderly are particularly susceptible to being tricked into investing into a real estate investment trust that will not be liquidated without a huge penalty or even realized before the elder’s death.

91-year-old Alice has experienced this issue. Her previous financial advisor had taken 10% of her assets and put them into a real estate investment trust. The problem is that the funds cannot be removed without a substantial penalty for the next 12 years. Between the advisors commission and the penalty, not much is left. Alice is a middle class independent woman and was relying on her savings availability to pay for her care. Alice claims her advisor did not disclose the drawbacks to the investment he chose for her. The advisor explains he explained the ramifications of investing in such a trust and claims that Alice chose to invest " for the benefit of her heirs."

See Carolyn Rosenblatt Financial Elder Abuse By A Broker-Dealer For Mom, Forbes,  Jul. 18, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

July 31, 2013 in Elder Law, Trusts | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

Choosing the Right Executor

Question man

If you’re considering making a will soon, you must face the tough question of who should be your executor.  This decision is important as your executor can affect how much tax your estate will pay on death and how efficiently your estate will be distributed.  You should wait to name an executor until after you’ve decided who will receive distributions and when and how they will receive them.

Your spouse may make sense as your executor because he/she will understand family dynamics and be sensitive to other beneficiary’s needs.  However, consider naming a co-executor if he/she lacks financial understanding.

Naming a child may make sense if the child has financial or business experience, but be wary of hard feelings from other children.

Business associates will know about business assets that form a portion of the estate, but be careful of any foreseeable conflicts of interest.

You could hire an accountant or lawyer to bring business acumen to the table, or you can add a provision in your will requiring the executor to seek the advice of a professional.

Corporate trustees are expensive but may be worth the cost for the trustee’s expertise.

Other factors that may be important when choosing an executor include the duration of trusts, whether you have children from multiple marriages, and your network of friends and advisers. 

Finally, it’s probably a good idea to choose an executor who lives in the state in which you live and where your assets are located. 

See Tim Cestnick, Taxes: Pick the Right Person to Handle Your Legacy, The Globe and Mail, July 17, 2013.

July 30, 2013 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0) | TrackBack (0)

Kerkorian’s Ex-Wife Withdraws Petition for Conservatorship


As I have previously discussed, Kirk Kerkorian’s ex-wife, Lisa Bonder, and stepson, Taylor Kreiss, attempted to become joint conservators over the 96-year-old hotel magnate, maintaining he was in declining health.

But recently, Bonder and Kreiss withdrew their petition with no comment on this sudden change of position.

Bonder had filed for the conservatorship asserting Kerkorian was under the control of financial advisers of Tracinda Corp. and needed intervention.  The attorney representing Kerkorian stated in court documents that the real reason the two were using the conservatorship was to exert pressure on Kerkorian to pay $500,000 a month in child support for Bonder’s daughter, Kira, who Kerkorian still maintains is not his daughter. 

See City News Service, Kirk Kerkorian Ex-Wife, Stepson Drop Move for Conservatorship, Daily News, July 22, 2013.

July 30, 2013 in Current Affairs | Permalink | Comments (1) | TrackBack (0)

Memo Details DOMA’s Effect on New York State


A recent technical memorandum issued by the New York State Department of Taxation and Finance explains the effect the Supreme Court’s recent DOMA decision will have on New York State estate taxes.

Because the Supreme Court held Section 3 of DOMA to be unconstitutional, “estates of individuals legally married to same-sex spouses are entitled to claim the same deductions and elections allowed for estates of individuals legally married to different-sex spouses, including the marital deduction, for all years open under the statute of limitations.”

Now taxpayers may amend previously filed estate tax returns where the statute of limitations remains open.  A refund claim generally must be filed within the later of (1) three years from the date the original return was filed or (2) two years from the date the tax was paid.

See the Taxpayer Guidance Division of the New York State Department of Taxation and Finance, New York Estate Tax Information for Estates of Individuals Married to Same-Sex Spouses, Technical Memorandum TSB-M-13(9)M, July 18, 2013.

July 30, 2013 in Current Affairs, Current Events, Estate Tax | Permalink | Comments (0) | TrackBack (0)