Wills, Trusts & Estates Prof Blog

New Welsh Law Makes Organ Donation Mandatory In Most Situations

Wales has just passed a new law that will automatically allow doctors to remove the organs of dead patients without requiring consent. This is the first time that a region has moved away from the traditional method of only taking from donors that had previously consented or had family consent after the donor's death. However, opt out is still allowed for the living and the family of the deceased are able to object to organ removal which provides some ability to get around the requirement. The new legislation has encountered some opposition, mainly among those that have concerns over the religious implications for groups that oppose transplants. But supporters argue the lives saved will outweigh other concerns and that the opt out provisions are enough to protect religious rights. The new rules will, in all likelihood, be closely watched by other jurisdictions that have been or are considering the passage of similar legislation.

See Ben Spencer, Organs can be taken from the dead without any consent: Landmark law change in Wales gives doctors right to assume all adults have agreed to be donors, The Daily Mail, November 30, 2015.

IRS Will Now Offer A Copy Of Fraudulently Filed Tax Returns To Identity Theft Victims

When a taxpayer is filing a tax return with the Internal Revenue Service (IRS) they might sometimes hear back from the IRS that a tax return has already been filed for them. “Typically, this is due to a fraudulent return filed using the taxpayer identification number and name of the taxpayer that seeks a fraudulent refund of taxes already paid to the IRS – the IRS version of identity theft.” Under the previous policy a defrauded taxpayer that was the victim of identity theft could not see the return that they filed with the IRS. Taxpayers will also be able to see fraudulent tax returns from previous years going back six years. Any person interested in receiving more information about how to request a copy of a fraudulent tax return should look here.

See Charles (Chuck) Rubin, Identity Theft Victims Can Now Get A Copy of Fraudulently Filed Returns, Rubin On Tax, November 29, 2015.

How To Prepare For A Decline In A Client's Mental Capacity

Working with clients with diminishing mental capacities is a situation that many financial advisers are going to face in the future. As the baby boomer generation enters into old age more people are going to suffer from Dementia and Alzheimer's disease. Dementia is an unavoidable problem that financial planners need to plan ahead for. It is important to be well educated on what sort of symptoms and dementia related conditions to watch out for. Advisers should carefully document any and all incidents and they should be prepared to contact their clients beneficiaries or family if it is necessary. Discussing these issues with a client while they are still mentally healthy in order to plan ahead is also a good idea. As these issues become more commonplace in the future financial advisers need to have a strategy in place.

See Mark P. Cussen, Mental Capacity: How to Handle a Client's Decline, Investopedia, November 30, 2015.

FDA Approves Trial Of New Anti-Aging Drug That Could Dramatically Increase Lifespans

The Food and Drug Administration has recently approved a trial to test the anti-aging effects of the world's most widely used diabetes drug metformin. The aging process occurs because over a human lifespan there are billions of cell divisions that must occur and over time as more cells divide problems arise and cells can lose their ability to repair damage. One of the things that Metformin does is boost the number of oxygen molecules that are released into a cell, and as a result increasing longevity and robustness. “When Belgian researchers tested metformin on the tiny roundworm C. elegans the worms not only aged slower, but they also stayed healthier longer.” The new clinical trials to research the anti-aging effects of Metformin are scheduled to begin next winter and scientists are currently attempting to recruit “3,000 70- to 80-year-olds who have, or are at risk of, cancer, heart disease and dementia” to take part in the studies. The increasing lifespans from medical developments like this are going to have a tremendous impact on estate and retirement planning.

See Sarah Knapton, No more Alzheimer's? World's first anti-aging drug could let you live more than 120 years in good health, National Post, November 29, 2015.

Estate Planning For Digital Assets

Estate planning for digital assets is a topic that has a great amount of significance to Millennials that have grown up to be more tech-savvy than previous generations. There are many people that have a strong investment in their “digital portfolios” that can include online accounts with social media sites like Facebook, Twitter, and Youtube. Far too many people make the mistake of failing to include their digital effects in their estate plans. Designating a person to have postmortem access to online accounts can be difficult because the laws that govern digital assets can be different in each state. It is a good idea for a person to create an inventory of their online accounts that includes their passwords. People should search for an experienced estate planning attorney to assist them with their digital estate planning needs.

See How do I Plan for My “Digital Assets” in My Estate Plan?, The Law Offices of Kyle E. Krull P.A., November 27, 2015.

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

Recently Deceased HOFer Frank Gifford Had CTE Family Says

The family of NFL Hall of Famer Frank Gifford has announced that an autopsy revealed the football star had Chronic Traumatic Encephalopahty (CLE). This condition is thought to be caused by repeated brain traumas which are common among athletes in certain contact sports but particularly football and leads to dementia and other memory related problems. This makes Gifford the latest in a series of prominent former players who were revealed after to death to suffer from the disorder. However, the family has no plans to pursue legal action against the league and will continue to support the league's efforts to reduce head injury.

See Gillian Mohney, Former NFL Player Frank Gifford Suffered From CTE, Says Family, ABC News, November 25, 2015.

UT School Of Law Presents The 63rd Annual Taxation Conference

The University of Texas School of Law is presenting a CLE entitled, 63rd Annual Taxation Conference, on December 3-4, at the Radisson Hotel and Suites in downtown Austin. Here are some details about the event:

The 63rd Annual Taxation Conference features an impressive slate of topics with regionally and nationally renowned speakers covering current trends, updates in tax regulation and policy, and much more. 

• Gain insight into corporate taxation, reform efforts, and the state of the tax world with Mark Prater, Deputy Staff Director and Chief Tax Counsel for the United States Senate Finance Committee
• Get the latest on Texas State and Local tax law changes, including the impact of recent legislative and judicial developments
• Hear from Glenn A. Hegar, new Texas Comptroller of Public Accounts, on his plans for the office
• Collect practical tips for working with foreign partnerships and real estate investments
• Explore recent developments in federal income taxation with Professor Bruce McGovern
• Earn up to 2.25 hours of ethics credit, including an hour on Ethics Landmines for 2015

Florida Financial Advisor Liable For Failure To State Tax Implications

In Florida, a financial advisor, and his firm LPL Financial, have been hit with a $53,000 judgement by an arbitrator following a failure to inform the client about serious tax implications of a trade. The genesis of the case was when the advisor had an elderly women transfer a large sum from an individual retirement account into another investment which resulted in a $9,000 tax hit. This represented nearly %20 of the total investment and, according to the arbitrator, should have been obvious to the advisor who acted callously towards the small time clients. The award was boosted by treble damages due to a finding that a Florida elder protection law was violated. LPL has indicated they will appeal the ruling.

See Megan Leonhardt, LPL to Pay Treble Damages to Elderly Client, Wealth Management, November 24, 2015.

 

Louisiana Attorney Charged With Falsifying Will

An attorney in Louisiana has been charged with falsifying a will that disinherited the testator's son and leaving everything to the lawyer and his wife. The controversy arose over a holographic will written close to death that was used to disinherit the testators only child. According the attorney, that was done to spite the stepfather of the child who had taken custody, along with the biological mother, after a bitter dispute with the father. Last month, a judge overturned the will in part because the attorney served as a notary even though he was never licensed. As of now, the attorney is free on bond and no trial date has been set.

See Gerry May, "I truly do hate him." Sole heir speaks out on arrest of attorney, wife in theft case, KTBS, November 25, 2015.

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

When To Convert A Traditional IRA Into A Roth IRA

Saving for retirement can be difficult and more people are having to decide if it is prudent to convert their traditional IRAs into Roth IRAs. One thing that traditional IRAs and Roth IRAs both have in common is that they are different types of investment accounts that guard wealth that is saved for retirement from being taxed. One major difference is that contributions to a traditional IRA generally tax deductible but funds that are withdrawn are treated taxable income, while contributions to a Roth IRA are not tax deductible money can be taken out tax free so long as the account holder is over 59½ years old and had the account for at least five years. A person that is planning for retirement should speak with an experienced estate planning professional to discuss whether converting a traditional IRA into a Roth IRA is the right decision to make considering their individual circumstances.

See Carlos Dias Jr., Should I convert my traditional IRA to a Roth?, Market Watch, November 25, 2015.