Wills, Trusts & Estates Prof Blog

New App for Advance Directives

My Health Care Wishes is a new app developed by the ABA’s Commission on Law and Aging that allows you to store your advance directives on your smartphone.  In an effort to make advance directives more easily accessible in the event of an emergency, this app lets you present advance directives, health information, and contacts via email or Bluetooth.  The digitally transmitted documents have the same legal authority as a signed and witnessed paper document.

The free version of this app lets you store one person’s information while the $3.99 Pro version offers unlimited storage for your family members.  Other digital ways to store advance directives include DocuBank and MyDirectives. 

See Paula Span, The Documents You Need, When You Need Them, The New York Times, Apr. 24, 2014.

Special thanks to Jerry Cooper for bringing this article to my attention.

Daughter Writes Brutally Honest Obit

Marianne Theresa Johnson-Reddick passed away at age 78 in Reno, Nevada.  Her obituary appeared in the Reno Gazette-Journal on September 10, but it was not the typical fond remembrance.

Her daughter, Katherine Reddick, described a childhood of abuse and neglect experienced by her and her siblings.  They were often in and out of foster homes with their mother allegedly running an escort service.  After the obit went viral, Reddick’s brother said its purpose was “to bring awareness to child abuse . . . shame child abuse overall.”

Here is the full text.

See Audra Schroeder, Daughter’s Brutally Honest Obit for Her Mom Goes Viral, The Daily Dot, Sept. 13, 2013.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

Funding Retirement for Small Business Owners

For small business owners, their business can become their lives.  It can also become their retirement savings plan.

To ensure a successful transition from ownership to retirement, business owners should take these three steps:

1. Develop a business succession strategy.  After identifying an individual or business as a logical successor, owners should obtain a value for the business, develop a buy-sell agreement, and establish a mechanism to fund the future transition.
2. Establish a qualified retirement plan.  Contributions to qualified retirement plans like 401(k)s  are tax deductible to the employer and are a good way to move cash flow out of the business in a tax-efficient way.  They are also a good way to attract employees.
3. Consider a nonqualified retirement plan.  Accumulate additional dollars for retirement beyond a qualified plan’s contribution limits.  The most common types of nonqualified plans are Supplemental Executive Retirement Plans, executive bonus plans, and deferral plans. 

See Northwestern MutualVoice Team, Don’t Bank on Your Business to Fund Retirement, Forbes, Apr. 23, 2014.

Article on Fiduciary Duties and Charities

Johnny Rex Buckles (Professor of Law and Law Foundation Professor, University of Houston Law Center) recently published an article entitled, How Deep Are the Springs of Obedience Norms That Bind the Overseers of Charities?, 62 Cath. U. L. Rev. 913 (Summer 2013).  Provided below is the beginning of his article: 

Deep Springs College offers a unique educational experience. Founded in 1917, the college sits on a cattle ranch and alfalfa farm in the High Desert of California. The intellectually-gifted students of Deep Springs combine rigorous academic study, manual labor, and self-governance to prepare for lives of service and leadership. However, bright, young high school seniors seeking the singular brand of liberal arts education offered by Deep Springs need not apply if they are women. Who is responsible for this policy? It is not the overseers of the college, who have determined that the school should admit students of both sexes. Instead, a California court recently enjoined the school from admitting female students in the first phase of lengthy litigation. 

The court issued the injunction after rejecting the college's argument that coeducation was permissible under a liberal construction of the 1923 Deed of Trust (the Trust) that endowed the school with a small fortune and described the school's charitable purposes as being “for the education of promising young men.” Further complicating the situation, a nonprofit corporation formed in 1967 began operating the school in 1996 after it received liquid assets and real property from the original trust. The case, therefore, raises not only a trust construction issue, but also issues concerning the degree to which the corporation is bound by the original trust instrument, and whether (if the corporation is bound) the trustees have established grounds for judicially modifying the terms of trust. More broadly, the Deep Springs litigation raises the poignant question of to what degree the law should require charity managers to obey the precise charitable purposes historically advanced by the charities that they govern. 

The trustees of Deep Springs College, like directors and trustees of other charitable organizations, are subject to two familiar fiduciary duties: the duty of loyalty and the duty of care (or prudent administration in the case of charitable trusts). The law of trusts, including charitable trusts, also generally requires trustees to obey the terms of their trust. Essentially extending this trust law requirement into charitable nonprofit corporate law, some commentators, joined by at least one court, recognize a third distinct fiduciary duty owed by fiduciaries of charitable nonprofit corporations: the duty of obedience.

CLE on POLST Paradigm

The American Law Institute Continuing Legal Education (ALI CLE) is presenting a CLE entitled, Physician Orders for Life-Sustaining Treatment: What Estate Planning, Elder Law and Health Law Attorneys and Health Law Professionals Need to Know About the POLST Paradigm, on Wednesday, May 7, 2014.  Here’s why you should attend:

The newest health care decision-making tool intended to carry out the wishes of persons at or near the end of life is the Physician Orders for Life Sustaining Treatment (POLST). POLST programs are designed to enhance communication between doctor and patient and ensure that the patient’s medical care reflects both the patient’s wishes and a well-informed, shared decision-making process.

Despite the fact that 19 states by statute or regulation have adopted POLST programs and 24 other states are evaluating or developing POLST programs, most estate planners, elder lawyers and health lawyers are not yet well informed about the POLST. Do you understand the essentials? 

Register today for this CLE webcast on POLST programs so you can join leading practitioners, Fellows of The American College of Trust and Estate Counsel, and a geriatrician member of the National POLST Paradigm Task Force for an in depth discussion on the development of POLST programs, their impact on end-of-life care, and how this relates to you, your clients, and your practice.

Censorship-Via-Copyright

The ex-spouse of a man who took his own life last year is claiming copyright on his suicide note to have it removed off the Internet. This does raise an interesting legal issue: Does a wife of a man who committed suicide have a legal right to claim copyright of his suicide note? Many are accusing Dina Mackney of abusing copyright law to censor the content of the letter, which does not paint her in a positive light and accuses her of pushing him to commit suicide. Her attempt in censoring the letters content is proving to have the opposite effect. The site for A Voice for Men has refused to take the letter down and others have posted variations of the letter or posted videos on You Tube of the letter being read aloud. It is unlikely she has a valid claim because of the fair use test.  

See Mike Masnick, Ex-Wife Allegedly Using Copyright To Take Down Husband's Suicide Note, Tech Dirt,  April 25, 2014.

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

Sale of Nate Dogg’s Home Delayed by His Children

As I have previously discussed, the battle over late rapper Nate Dogg's estate continues. Dogg’s residence was foreclosed on two days after his death due to unpaid mortgage payments. The executor of his estate has agreed to sell the home for $340,000 to make debt payments. However, Dogg’s six children are fighting the sale. The house was previously left to the six children, when an attorney divided Dogg’s assets. Whether the sale will go through or not will be decided by a judge.

See WENN, Nate Dogg's Family Members Attempt To Block Sale Over His Home, Contactmusic.com, April 11, 2014.

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

IRS Notification Clarifies IRC Section

Recently, the IRS released a notification that clarifies section 367(b) in the Internal Revenue Code. The section is related to the treatment of property used to get stocks in particular triangular reorganizations involving foreign corporations. The notice gets rid of the contribution model under the existing rules and changes the priority rules.

See Paul Caron, IRS Shuts Down Killer B Repartriations (Again), Tax Prof. Blog, Apr. 25, 2014.

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

Father’s Shrine to Son Causes Legal Stir

Every morning for over 900 days, Fred Molai has visited his son’s grave at Standing Rock Cemetery in Kent, Ohio.

Adam Molai, a U.S. Navy petty officer, died in a rafting accident in 2011.  His father has created an elaborate shrine to him, which includes two large posters on poles over eight feet high.  After notifying Fred Molai that the posters violated cemetery rules, the cemetery gave him seven days to take them down or have them removed by cemetery officials.  Molai refused to take down the posters or put them on shorter poles.  He sued them in Portage County Common Pleas Court, which issued a temporary order in his favor blocking removal of the posters and ruled that the proper venue was the Ohio Cemetery Dispute Resolution Committee.  Molai says he plans to meet the 45 day deadline.

Molai bought 15 plots, at $500 each, and uses only five of them for his son’s monument.  He spends about 10 to 15 minutes every day at his son’s grave, saying the visits help him with his grief.

See Jim Carney, Kent Monument to Son Causes Legal Stir as Father Is Told to Take Down Posters at Cemetery, Akron Beacon Journal, Apr. 23, 2014.

Financial Concerns May Halt a Walk Down the Aisle

After losing his wife to multiple sclerosis, 68-year-old Stephen Ward began dating 70-year-old Phyllis Kellerman.  The couple soon fell in love and moved into Ward’s Florida Beach home.  Although they contemplated marriage, Ward and Kellerman decided against it out of concern for potential legal and financial problems. “We decided to act as a married people—but not to get a marriage certificate,” explained Kellerman.  

Like Ward and Kellerman, many Americans are straying away from traditional notions of marriage.  For many, the decision to remain single centers on money.  A partner who remarries may lose alimony, Social Security, or a survivor’s pension.  “Young people may be eager to marry for love, but older couples are more practical and worry about paying the bills.”

Lawyers urge unmarried clients to draft agreements specifying which partner is responsible for expenses and who will inherit assets.  Some couples sign health proxies, giving each the right to make medical decisions for the other.  The proxies may help to prevent problems and prepare in case families are not around. 

See Stanley Luxenberg, Welcoming Love At An Older Age, But Not Necessarily Marriage, The New York Times, Apr. 25, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.