Wills, Trusts & Estates Prof Blog

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

Wednesday, March 29, 2017

President James K. Polk's Body to Be Moved a Fourth Time

James polkRepresenting one of the more tangled dramas of an American presidential corpse, the 11th President of the United States, James K. Polk, now faces the prospect of being disinterred and buried at a fourth place since his death in 1849. A proposal is making its way through the Tennessee legislature, which calls for digging up the bodies of the late President and his wife and moving them to a final resting place at a Polk family home in Columbia, Tennessee. Supporters of the move say that it will properly honor Polk, a president they say was unjustly overlooked. Opponents of the move exclaim that it would be disrespectful, as Polk’s body has rested on Capitol grounds for 124 years. The state Senate voted on the resolution this past Monday, but in order to disinter the remains, there will need to be approval from the state’s House, governor, the Tennessee Historical Commission, and a local judge.

See Richard Fausset, President James K. Polk’s Body May Be Moved. Again., N.Y. Times, March 24, 2017.

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

March 29, 2017 in Current Events, Death Event Planning, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (1)

The Musts for Your Estate Plan

Estate plan without willThroughout the years, you spend time accumulating bank and brokerage accounts, real estate, retirement accounts, annuities, and other assets, so it is not uncommon to forget to update important information, like who are the beneficiaries and how your assets are titled. Securing your estate in these ways can help to quickly transfer your assets to loved ones, perhaps avoid probate, and even reduce estate taxes.

Specifically, there are two key features that can help you avoid probate and potentially limit taxes for your heirs: joint ownership and naming a “transfer on death” or “payable on death” beneficiary. There are several ways to structure joint ownership, all of which can create varying consequences. The three ways to title a joint account are joint tenancy with rights of survivorship, tenancy by entirety, and tenancy in common. Further, another simple step to help avoid probate is to name someone as a transfer on death beneficiary or payable on death beneficiary. However, there are a couple major drawbacks to designating assets in this way, including that these titled assets override whatever is stated in a will and can incur estate taxes. Ultimately, you should speak with an estate-planning attorney to help meet all of your estate planning goals.

See Estate Planning Must Dos, Fidelity, March 27, 2017.

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

March 29, 2017 in Estate Planning - Generally, Estate Tax, Non-Probate Assets, Wills | Permalink | Comments (0)

Tuesday, March 28, 2017

Article on Wills, Trusts, Guardianships, and Fiduciary Administration

SurveyMary F. Radford recently published an Article entitled, Wills, Trusts, Guardianships, and Fiduciary Administration, 68 Mercer L. Rev. 321 (2016). Provided below is an abstract of the Article:

This Article describes selected cases and significant legislation from the period of June 1, 2015 through May 31, 2016 that pertain to Georgia fiduciary law and estate planning.

March 28, 2017 in Articles, Estate Planning - Generally, Guardianship, Professional Responsibility, Trusts, Wills | Permalink | Comments (0)

Article on Social Welfare Theory of Inheritance Regulation

Social welfareMark Glover recently published an Article entitled, A Social Welfare Theory of Inheritance Regulation, 2018 Utah L. Rev. (Forthcoming). Provided below is an abstract of the Article:

The law of succession grants donors broad freedom to decide how to distribute their property upon death. It does so in hopes of increasing social welfare in two general ways. First, freedom of disposition generates socially beneficial estate planning decisions. In particular, donors are in the best position to evaluate their own specific circumstances and to make decisions that, on the whole, produce the greatest utility from the transfer of their estates. Second, the donor’s autonomy over estate planning decisions incentivizes socially beneficial behavior, such as productivity during the life of the donor. Because the law views freedom of disposition as maximizing social welfare in these ways, it generally defers to the estate planning decisions of individual donors.

Although the law typically relies upon the choices of autonomous decision-makers to maximize the social welfare that is generated by the inheritance process, it regulates inheritance in some circumstances through both prescriptive and proscriptive restrictions of freedom of disposition. Prescriptive restrictions are rules that require donors to distribute property in certain ways thereby preventing them from transferring property to other donees. By contrast, proscriptive restrictions are rules that directly limit freedom of disposition by prohibiting donors from distributing property in particular ways. Scholars have catalogued the various ways that the law regulates inheritance; however they typically have examined them in isolation without developing an overarching framework for analyzing inheritance regulation.

Thus, to better understand the role that inheritance regulation plays within the law of succession, this Article analyzes restrictions of freedom of disposition in relation to the law’s social welfare goals. It does so both by recognizing defects in the donor’s decision-making process that suggest she might make suboptimal estate planning decisions and by identifying potentially socially detrimental incentives that freedom of disposition can produce. It then explores how particular restrictions of freedom of disposition address these social welfare concerns. Ultimately, this analysis explains how inheritance regulation can maximize social welfare and develops a framework that can aid policymakers in deciding when inheritance regulation is appropriate and how such regulation should be crafted.

March 28, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Article on the Power of Trusts in Anglo-American Business History

TrusteeJohn Morley recently published an Article entitled, The Common Law Corporation: The Power of the Trust in Anglo-American Business History, 116 Colum. L. Rev. 2145 (2016). Provided below is an abstract of the Article:

This Essay challenges a central narrative in the history of Anglo-American business by questioning the importance of the corporate form. The Essay shows that the corporate form was not, as we have long believed, the exclusive historical source of powers such as limited liability, entity shielding, tradable shares, and legal personhood in litigation. These powers were also available throughout modern history through a little-studied, but enormously important, device known as the common law trust. The trust was widely and very effectively used to hold the property of unincorporated partnerships and associations in England and the United States both long before and long after the passage of general incorporation statutes in the mid-nineteenth century. The trust's success in wielding corporation-like powers suggests that the corporation's role in legal history was smaller than--or at least different from--the one we have long assigned to it. This Essay thus lays the groundwork for a new account of the corporate form and its place in the development of modern business.

March 28, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Judge Forces Michael Jackson's Ex-Business Partners to Stay Out of His Estate

Michael jackson2A recent ruling has left Michael Jackson’s former business partners without a multi-million dollar slice of Jackson’s estate. Three of the four plaintiffs in the case claim that, in 2006, they met Jackson in a hotel room, where he promised them shares of his company for their loyalty. Because it was only an oral agreement and not a written contract, the plaintiffs ran into huge problems, leaving the judge to ultimately decide that they lacked credibility.

See Michael Jackson Victory for Estate . . . Judge Tells Ex-Biz Partners to Beat It, TMZ, March 27, 2017.

March 28, 2017 in Current Events, Estate Planning - Generally, Music, New Cases | Permalink | Comments (0)

Monday, March 27, 2017

A 12-Foot Statute of Paul Walker?

Walker statuteRecently, a group of surfers, who idolize Paul Walker, plead the City Council to resurrect a statute of their hero in San Clemente. A freelance journalist, Chad Kroeger, made the touching pitch last Tuesday in hopes of seeing a legend brought to life. The proponents spoke of Walker as a “unifying figure.” The Article contains a video of the surfers’ pitch to City Council.

See Paul Walker Surfer Bros Beg City Council for 12 Foot Statute . . . ‘A Beacon of Headlights’, TMZ, March 27, 2017.

March 27, 2017 in Current Events, Death Event Planning, Estate Planning - Generally, Film | Permalink | Comments (0)

Do Your Mutual Funds Have Exposure to Controversial Weapons?

WeaponsOver 6,500 funds that were sold to retail investors around the world have been found to have high exposure to controversial weapons, casting doubt over the asset managers’ efforts to invest responsibly. Specifically, the research reviewed the global mutual funds’ exposure to chemical and biological weapons, cluster munitions, white phosphorus, laser weapons, nuclear weapons, and several more. The research also found that 6,678 mutual funds had at least 5% of their portfolio invested in companies that either manufacture or distribute these weapons. Experts are worried that this callous way to make a profit will do nothing to restore trust in the financial services industry.

See Aime Williams, Mutual Funds Have Exposure to Controversial Weapons, Financial Times, March 26, 2017.

March 27, 2017 in Current Events, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (1)

Florida Judge Rules that Same Sex Spouses Must Be Added to Death Certificates

Florida judgeAfter the 2015 Obergefell decision, people were asking Florida to change the death certificates that indicated a partner in a same-sex relationship died unmarried without a surviving spouse. Florida refused and stated that they would not do so unless compelled to by an individual court order. Eventually, several widowers filed a lawsuit on behalf of all Floridians whose deceased same-sex spouses’ death certificates recorded them unmarried. The judge ruled in their favor, ordering the state to correct the death certificates and give way to Obergefell’s constitutional command.

See Mark Joseph Stern, Federal Judge Rules Florida Must Add Same Sex Spouses to Death Certificates, Slate, March 24, 2017.

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

March 27, 2017 in Current Events, Death Event Planning, Estate Planning - Generally, New Cases, New Legislation | Permalink | Comments (0)

Book on Experiencing Trusts & Estates

Experiencing trusts Alfred L. Brophy, Deborah Gordon, Norman P. Stein & Caryl Yzenbaard recently published a book entitled, Experiencing Trusts and Estates (2017). Provided below is a summary of the book:

This casebook takes a more experiential approach to the teaching of trusts and estates law. This first edition features recent cases and model documents in almost every chapter of the book; it also preserves many of the most famous and teachable trusts and estates cases. The opening chapters introduce students to issues around planning for incapacity and death and to accessible and understandable material on estate and gift taxes. The remainder of the book focuses on estate planning for low and moderate income individuals, professional responsibility issues as they arise in a trusts and estates practice, and traditional and contemporary cases and documents designed to expose students to the most important concerns that arise in a trusts and estates practice. Each chapter also features extensive notes and questions designed to help lead students through the major issues, and an appendix provides full versions of various historical “celebrity” wills and contemporary model trusts. A voluminous teacher’s manual accompanies the book, with briefs of every principal case and extensive notes designed to aid the teacher in advancing classroom discussion on nearly every note in the casebook. The teacher’s manual also includes additional problems and other materials designed to develop professional skills.

March 27, 2017 in Books, Books - For Practitioners, Current Events, Estate Planning - Generally, Estate Tax, Gift Tax, Trusts | Permalink | Comments (0)