Wills, Trusts & Estates Prof Blog

What Is a "Holiday Will"?

Probate specialists are citing a growing trend for people creating or revising their wills—foreign holiday trips. Terror attacks and the disappearances of several foreign airplanes are causing growing concern amongst travellers. Legal firms are seeing an increase in will appointments days before families plan on taking flight, and the will executors usually press urgency. People are also creating conditional wills that take effect only if they pass on holiday. The Article further discusses guidelines to consider for planning a “holiday will.” This trend is beneficial because it is essential to plan ahead for the unexpected, especially when children and spouses are involved.

See Georgia Diebelius, After Terror Attacks and the MH370 Disappearance More People are Making ‘Holiday Wills’ Because They’re Afraid of Dying in a Plane Crash, Daily Mail, May 17, 2016.

Planning for Estate Taxes

Estate tax is the tax on your property transferred at death. Tax laws are constantly changing, so there has been much disputed controversy over the years. Most Americans do not need to worry about federal estate tax because of the $5.45 million exemption. There are, however, 14 states and the District of Columbia that maintain estate taxes, and they often impose taxes on smaller estates. Using a variety of estate planning techniques can allow you to reduce or eliminate state estate tax liability. It is important to know what the estate tax laws are in your state and any state you are considering for retirement.

See Dan Caplinger, Does My State Have an Estate Tax?, Motley Fool, May 20, 2016.

How to Strategically Give to Charity

In 2014, Americans gave $358.38 billion to charity! This number is expected to rise in 2016, and two factors may play a role—millennials and female donors. Women are expected to get more than 70% of inherited wealth, and they are more likely to give to charity in higher amounts. The Article goes on to discuss the five common paths that donors take when donating to charities. Further, it details the steps to starting a strategic giving program.

See Amanda G. Marsted, Strategic Philanthropy: Starting the Process, Wealth Management, May 11, 2016.

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

Divorce's Impact on Your Estate Plan

Oftentimes when going through a divorce, couples have a lot on their mind, but what they forget about is how the divorce will impact their estate plan. An outcome in most divorces is a property or marital settlement agreement (PSA), which dictates obligations of both parties. It is important that this agreement have some flexibility from an estate planning perspective.

One example to consider is an agreement to maintain life insurance in the event that one parent can no longer provide child support. Make sure, however, that the PSA specifies how these proceeds are to be used, especially when being initially handled by your former spouse. It might also be beneficial to put these proceeds into a living trust, but, once again, you must make sure that the trust provisions are specific.  

See Catherine F. Schott Murray, How Divorce Can Impact Your Estate Plan, National Law Review, May 19, 2016.

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

How to Cope with an Alzheimer's Diagnosis

Approximately 5.4 million Americans suffer from Alzheimer’s, which has many friends and family members wondering how to act toward them. With disease progression being unpredictable, it is hard to understand the different stages and learn how to handle each phase. The Article discusses how emotional support from friends and family members is key. Being open about the diagnosis can help ease social situations and promote conversation. Also, experts advise taking cues from the person coping with Alzheimer’s and allowing them to take the lead.

See Susan Berger, What’s the Best Way to Talk to Someone with Alzheimer’s?, Washington Post, May 30, 2016.

Special thanks to Lewis Saret for bringing this Article to my attention.  

 

Baby Boomers Working with Millennials on Financial Investing

Surprisingly, baby boomers and their millennial offspring’s strong financial relationship is positively impacting ancient investment strategies. Research suggests that millennials are more likely to follow their instincts and invest at appropriate market timing, an approach that only 11% of baby boomers take.

Millennials are also being considered the conscience of the family, helping to bridge the gaps in family affairs. They are more interested in the family impact than the investments, making sure that family assets are being passed generationally. This valuable financial relationship that allows beneficial communication amongst two generations is assuring to our nation’s financial future.

See Sonia Talati, The Families’ Unlikely Financial Dream Team, Barron’s, May 24, 2016.

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

Article on Rights of an Absentee Decedent in New York

Brett Rondeau recently published a Note entitled, Rising From the Dead: An Examination of the Rights of an Alleged Decedent Upon Return in the State of New York, 29 Quinnipiac Prob. L.J. 177-193 (2016). Provided below is a summary of the Note:

            The first part of this Note details the background and history of New York Estate Powers and Trusts Law Section 2-1.7, the relevant statute for having an absentee declared dead in New York. This section also addresses the statute's multiple requirements, including the “specific peril of death” situation. The second part of this Note outlines the background and history of New York Estate Powers and Trusts Law Section 2226, the relevant New York statute for determining what an absentee who was wrongly presumed dead can regain from his or her already distributed estate. This section also considers the variety of potential approaches a state may take when redistributing the estate of an absentee who was declared dead. The third part of this Note analyzes the effectiveness of New York's statutes compared to other state statutes. This section concludes that New York's relatively “progressive” statutes are actually more effective than similar statutes in other states in both declaring an absentee dead and distributing his or her estate, and that New York's statutes should be a model for other states when drafting or redrafting their own similar statutes.

Creditors Fight Over 20% Interest in OKC Thunder

While the Oklahoma City Thunder fight for a spot in the finals, Aubrey McClendon’s creditors are fighting in probate court over his 20% interest in the team. The lenders fear that the interest, one of the main assets of value, will be sold to his wife for less than its worth. McClendon’s estate attorneys feel that the lawsuit was brought too early because the asset is not even for sale. They also contend that they would need to satisfy the NBA’s qualifications when selling the stake. However, according to the terms of one of McClendon’s loans worth $465 million, the bank group is asking for immediate repayment, insisting that McClendon’s death represented a default.

See Jessica DiNapoli, The Case of a Dead Oil and Gas Mogul Takes an Unexpected Turn, and It Involves the Oklahoma City Thunder, Business Insider, May 28, 2016.

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

Article on Building a Trusts and Estates Practice

Alyssa A. DiRusso recently published an Article entitled, Turn-Key T&E: Building a Trusts and Estates Practice, 29 Quinnipiac Prob. L.J. 126–76 (2016). Provided below is a summary of the Article:

            If your dream is to start your own trusts and estates practice, there are some practical steps to take to get started. There are initial considerations, like the scope of your practice and its location. There are matters of office and administrative resources, including assistants, partners, and other practicalities of office life. There are steps to take with licensing and accreditation, both with respect to the practice of law and regarding other designations that prove useful in practice. You will need to organize your business, choose its form, and establish a name. You should consider financial matters such as billing, accounting, and marketing. Trusts and estates practitioners engage in a variety of networking and professional organizations that you will want to consider. You should mind ethical standards of practice. Finally, you will want to know what resources are available for a new practitioner. Though this list may seem daunting, these tasks are very manageable.

            The goal of this manual is to provide a comprehensive overview of the practical tasks involved in establishing a new trusts and estates practice. It is designed primarily with new graduates in mind, although more experienced lawyers may find it helpful as well. The reader will find that specific examples throughout reference the state of Alabama,1 although many of the considerations are the same regardless of where a lawyer practices. It is my hope that with this instruction manual as your guide, you can start something new and entirely your own.

Article on Encouraging Charitable Bequests

Kristine S. Knaplund recently published an Article entitled, Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills, 77 U. Pitt. L. Rev. 1–49, (2015). Provided below is a summary of the Article:

            What causes people to leave their property to charity in their wills? Many scholars have explored the effects of tax laws on charitable bequests, but now that more than 99% of Americans’ estates are exempt from federal taxes, what non-tax factors predict charitable giving? This Article explores charitable bequests before Congress enacted the federal estate tax and a deduction for charitable bequests. By examining two years of probate files in Los Angeles and St. Louis, in which 16.6% of St. Louis testators, but only 8.3% in Los Angeles, made charitable bequests, we can begin to discern why testators in St. Louis were far more inclined to give to charity. The surprising results may help policy makers encourage those in the United States and in developing countries to give beyond their family and friends.

            This Article is unique in that it is the first to examine not just whether a will included a charitable bequest, but whether the charity received it. This crucial information adds key insight into who gives to charity. In fact, if we compare the two cities by looking at charitable bequests that were actually received, St. Louis testators are even further ahead of their Los Angeles counterparts, with 15% of St. Louis testators giving to charity, compared to 6% in Los Angeles.