Wills, Trusts & Estates Prof Blog

Article on Elder Abuse Disinheritance Legislation

Emily Irwin recently published an Article entitled, Protecting Mamaw and Her Estate: Elder Abuse Disinheritance in Kentucky, 54 U. Louisville L. Rev. 307 (2016). Provided below is an abstract of the Article:

In Kentucky, the state is gearing up for a “silver tsunami,” because it is projected that Kentucky residents, ages 60 and older, will make up one-fourth of Kentucky's population by 2030. Accordingly, Kentucky's elderly are faced with an increasing threat of elder abuse, as evidenced by the fact that investigations of elderly physical abuse, neglect, and financial exploitation have almost doubled since 2005. For example, a Louisville nonprofit organization, GuardiaCare, which often “serves as a court- appointed guardian for adults,” stated “there have been at least six instances in recent years [[where] GuardiaCare was appointed to take over after a relative was found to be abusing or defrauding an elderly person.” Yet, when the elderly victim died “the same adult child inherit[ed] the balance of the [victim's] estate.”

Elder abuse, particularly elder abuse that leads to abuser inheritance, is a growing concern due to an aging population and the increased likelihood that elders will be abused by a close relative or friend. Elder abuse disinheritance legislation is imperative, as it adequately reflects society's condemning view that elder abuse is so horrific that only an extreme penalty is appropriate. Accordingly, elder abuse disinheritance legislation seeks to satisfy society's goal of deterrence as well as moral condemnation. This note will first discuss the history of elder abuse law development. Next, it will examine the states that have adopted elder abuse statutes, focusing particularly on states that void gifts made to an abuser. The note will then analyze the differing statutes that have been enacted and discuss why Kentucky should become a leader in elder abuse disinheritance legislation by amending its current statute to expand its reach and serve as a deterrent to elder abuse.

How Do You Leave an Inheritance That Doesn't Hurt?

Deciding how to divide your estate amongst your children can be hard, especially when you have children living in various stages of life. For instance, what do you do when you have two daughters who married wealthy men and two sons who are hard workers but not financially well off? You could split it evenly four ways, but obvious signs show that two of them will be ok without the inheritance. Read the rest of the Article for ways that some are dealing with this type of inheritance dilemma.

See Michelle Singletary, Leaving an Inheritance That Won’t Hurt, Washington Post, October 20, 2016.

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

The Financial Reality of Dementia

Approximately 5.4 million people in the United States are living with Alzheimer’s, an incurable disease that will soar to record heights within the upcoming years. With this disease, there can be a number of financial problems, including unpaid bills and giving away money to Internet scams. Dementia can knock a dedicated worker out of the workforce early, losing any extra income for retirement. The best way to avoid these problems is to take the proper steps when your mental ability is sound, so that you are able to protect yourself in the future. Accordingly, it is best to have a health-care power of attorney that names someone you trust to make your financial decisions. Because the costs of caring for a family member with dementia can often outlive the patient, it is best to plan ahead to avoid additional family hardship.

 See Martha M. Hamilton, Facing Financial Reality When Early Dementia Is Diagnosed, Washington Post, October 28, 2016.

DING Trust Rulings Analysis

PLR 20146014 addressed all the relevant rulings to the tax structure of a DING trust. However, there was one major factual difference compared to what the IRS ruled—if there are fewer than two members serving on the Distribution Committee (or if Child 1 and Child 2 are no longer serving), then the trust terminates and all the property is distributed back to the settlor. In PLR 20146014, the IRS ruled that this trust is a nongrantor trust. Subsequently, in In PLR 201642019, the IRS revoked that ruling, stating that the trust provision addressing the termination acts as a reversion.

 See Analysis of DING Trust Rulings PLR 201426014 and PLR 201642019, Morris Nichols Arsht & Tunnell, October 28, 2016.

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 of us interested in wills, trusts, estates, probate, and estate planning.

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

Man Scattering Friend's Ashes Causes Cancellation of Metropolitan Opera Performances

A man wanting to honor his deceased friend and mentor decided to sprinkle his ashes into the orchestra pit during an intermission at New York City’s Metropolitan Opera. Due to the panic over the unknown substance, the Met cancelled two scheduled performances and called the police. Audience members were subsequently told to leave with several unhappy about the cancellations.  

See Man Scattering Friend’s Ashes Halts Metropolitan Opera Performance, Fox News, October 30, 2016. 

 

Man's Body Is Mistakenly Cremated Due to Name Mix-Up

A 26-year-old man was mistakenly creamted after a coroner technician confused his remains with another man that had the same name. The technician matched he name on the body but failed to check the coroner case number. Consequently, the accident caused the man’s family to file a claim against the coroner’s office, claiming they intended to donate his organs and make funeral arrangements. 

See Coroner: Dead Man Mistakenly Cremated Due to Name Confusion, Fox News, October 29, 2016. 

 

The Tax Consequences of Your Nobel Prize

Before accepting your Nobel prize, remember that the IRS § 61(a) requires that all income be included in gross income. Since the Tax Reform Act of 1986, an award for charitable, religious, scientific, educational, artistic, literary, or civic achievement can be excluded from gross income “only if the recipient assigns it to a governmental unit or charity entitled to receive deductible charitable contributions.” Profits assigned to the award recipient are not considered deductible charitable contributions. Accordingly, an award recipient can either accept the prize and pay the income tax, accept the prize and grant it to charity, or assign the award to charity immediately before benefiting from it. 

See Conrad Teitell, A Noble Use for the Nobel Prize, Wealth Management, October 25, 2016. 

 

Changing the Property Ownership of Assets Inside a Revocable Trust

A living trust serves to to transfer ownership of property at the time of the owner’s death. When leaving a piece of property in this type of trust for a beneficiary, the item will not need to go through probate, passing straight to the beneficiary. As far as income and estate taxes on the property within the trust, if the property is to be sold at the time of death or up to one year after, there is no federal income taxes. Additionally, if the estate is under $5 million, there will be no estate taxes to pay. As the trustee (oftentimes the creator of the trust) gets older, they can have a successor trustee in place to serve the trust if the creator becomes incapatictated. 

See Lacey Kessler, Think Twiece About Changing a Revocable Trust to List Your Child as Co-Owner of a Home, Trust Advisor, October 28, 2016. 

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

 

How Couples Can Communicate Financially

In marriage, most couples recognize that communication and shared goals are the keys to a happy marriage. Oftentimes, however, money and financial goals are not discussed, leading to financial unease. In order to meet their invsting and retirement goals, couples need to refine their planning. First, couples must communicate about their goals and disucss priotities. Additionally, each spouse should voice the goals that they find most imorptant. Asking questions always helps to identify differences and concerns, so that there is room for compromise. On the other hand, it is important to plan for the worst-case scenario to assure yourselves that you have the financial means to cope. While keeping these tips in mind, couples should consider future care needs and estate planning in their goals as well.

See Robert Warner, Are Couples on the Same Financial Planning Page?, Wealth Management, October 26, 2016. 

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