Wills, Trusts & Estates Prof Blog

So You’re Going on a Trip

Before travelling internationally, take some time to understand the legal complications that may arise if an incident occurs overseas. A huge part of avoiding potential legal issues is cultivating an understanding of the laws of the nations where you will be visiting. An example, in Bahrain, you can be arrested for public drunkenness and disorderly behavior. This is pretty standard, but unlike most domestic jurisdictions, the use of vulgar language or hand gestures may result in heavy fines or criminal charges. In addition, it is illegal to photograph certain buildings.

Avoiding arrest in a foreign nation should pretty much be number one on the list of things not to do while abroad, but some events are unavoidable. When an illness strikes, especially when it is serious, it is important to have a backup plan. The American Express Platinum Card will pay up to $2.5 million for treatment fees. Another possibility, MedJetAssist is an emergency service offered for travelers. The unique benefit of the service: if you have an emergency more than 150 miles from your home, they will arrange transport to a hospital of your choice. That means any hospital you choose, not just the closest facility.

Drafting a will and designating beneficiaries or updating your current estate plan are also important chores to complete before heading out to foreign soil.

See George, So You’re Going on a Trip, Fox+Mattson, May 22, 2017.

CLE on Advanced Estate and Trust Administration

The National Business Institute is holding a conference entitled, Advanced Estate and Trust Administration, which will take place August 4, 2017, at the Café Internationale at Ramada Newburgh/West Point in Newburgh, NY. Provided below is a description of the event:

        

Program Description

Tackling the Toughest Issues You're Likely to Face in Estate Administration

In this fast-paced, incisive course, seasoned attorney faculty skip the basics and get right to the heart of the complex and diverse problems and peculiarities that make up the estate administration process. Get expert guidance on tough inventory issues, trust administration, claims and insolvency, taxes, and many more. Increase your legal mastery - register today!

• Clarify what's recoverable under Medicaid estate recovery, and when and how it can be contested.
• Effectively handle discretionary trust distributions in estate planning.
• Find out how to locate and value digital assets.
• Get a tax law update and realign your practices with the new post-ATRA realities.
• Tackle contentious beneficiary disputes in and out of court.

Who Should Attend

This advanced-level estate administration seminar is designed for:

• Attorneys
• Personal Representatives
• Trust Officers
• Paralegals
• Accountants and CPAs
• Tax Preparers
• Enrolled Agents
• Estate and Financial Planners
• Investment Advisers

Course Content

1. Tough Inventory and Appraisal Issues
2. Post-Mortem Trust Administration
3. Medicaid Recovery Claims Against the Estate
4. Legal Ethics
5. Tax Planning and Reporting
6. Estate Litigation

Continuing Education Credit

 

Continuing Legal Education

Credit Hrs State
CLE 7.20 -  NJ*
CLE 7.00 -  NY*
CLE 6.00 -  PA*

Continuing Professional Education for Accountants – CPE for Accountants: 7.00 *

Financial Planners – Financial Planners: 7.00

International Association for Continuing Education Training – IACET: 0.60

National Association of State Boards of Accountancy – CPE for Accountants: 7.00 *

Professional Achievement in Continuing Education – PACE: 7.00 *

* denotes specialty credits

Uniform Law Commission Concludes 126th Annual Meeting

The Uniform Law Commission (ULC) approved six new acts at its recently-concluded 126^th annual meeting in San Diego, California. Among the acts passed is the Uniform Regulation of Virtual Currency Business Act that constructs a statutory framework for the regulation of business activity involving virtual currencies. The Uniform Direct Trust acts clarifies the duties of direct trustees and those with the authority to direct them. The Uniform Guardianship, Conservatorship, and Other Protective Arrangement Act represents an updated guardianship statute designed to better protect the rights of children and adults subject to guardianship. The Uniform Parentage Act is a revision of the prior parentage act and addresses issues involving same-sex couples, surrogacy, and de facto parentage. The Uniform Protected Series Act offers a framework for the creation of a protected series limited liability company. And last, the Model Veterans Treatment Court Act provides a template for the establishment of veterans’ courts while still allowing for significant local discretion in order to better accommodate the realities found in different communities.

See Uniform Law Commission Concludes 126th Annual Meeting, Uniform Law Commission, July 19, 2017.

Be Fair to Your Heirs: Treating Children Fairly in Your Will

When drafting a will, it can be difficult for testators to decide how to distribute their assets fairly. When dividing bequests among beneficiaries, it can be difficult to decide if wealthy, financially independent children should receive the same legacy as children who are not as financially stable. While an uneven division may seem fair when drafting the will, lopsided distributions of assets may prove problematic over time, as previously wealthy children undergo divorce, job loss, or financial strain and financially unsuccessful children enjoy a reversal in fortune.

Even substantially equivalent distributions may not be totally fair. Consider three children: twenty-four, twenty, and sixteen. If a parent were to pass away leaving each child $250,000, the two older children may benefit substantially more than their younger counterpart. It is likely that the two older children had a portion of their education expenses paid from their parent’s estate. The youngest child misses this opportunity and now bears the burden of paying for his entire education without the benefit of parental support.

While there are a legion of considerations to be mulled over when drafting a will, for the sake of harmony, it is usually better to treat children as equally as possible.

See Kevin Duncan, Be Fair to Your Heirs: Treating Children Fairly in Your Will, Trust and Estate Planning, April, 14, 2017.

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

Article on Partial Harmless Error for Wills: Evidence from California

David Horton recently published an Article entitled, Partial Harmless Error for Wills: Evidence from California, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

In many legal systems, the Wills Act requires testators to memorialize their wishes in a signed and witnessed writing. For centuries, courts insisted on strict compliance with these fussy statutory requirements. But in 1975, South Australia adopted the harmless error rule, which permits judges to forgive execution defects if there is compelling evidence that a decedent intended a document to be effective. Although several countries have now embraced this powerful curative doctrine, most American states have not. This root of this resistance is fear that replacing the clean lines of traditional law with a muddy standard will breed litigation.

This invited contribution to the Iowa Law Review’s Wealth Transfer Law in Comparative and International Perspective Symposium updates our understanding of the harmless error rule by offering the first study of its impact on the day-to-day operations of a U.S. probate court. Its centerpiece is a dataset of 2,453 estates that came on calendar in Alameda County, California between 2008 and 2010. The Golden State adopted what I call “partial” harmless error — a statute that can cure some deviations from the Wills Act but not others — in 2009. Thus, my research offers new insight into the costs and benefits of relaxing the formalities that govern the execution of wills. My marquee finding is that partial harmless error’s impact on the litigation rate was minimal. In addition, I show that by retaining certain statutory elements as mandatory, partial harmless error prevents migraine-inducing dilemmas about whether a decedent wanted an instrument to be her will.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

Article on Estate Planning Highlights of the 2017 Texas Legislature

Gerry W. Beyer recently published an Article entitled, Estate Planning Highlights of the 2017 Texas Legislature, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

This article reviews the highlights of the legislation enacted by the 2017 Texas Legislature relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

Article on Disinheritance Against the EU Regulation on Succession (No. 650/2012). Polish Law Perspective

Mariusz Załucki recently published an Article entitled, Disinheritance Against the EU Regulation on Succession (No. 650/2012). Polish Law Perspective, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

The disposition of disinheritance, which as part of the freedom of the assets disposition in the event of death, interferes with the legislative solutions protecting persons close to the deceased. This institution is not uniformly understood and regulated in national laws of the EU countries. Moreover, the legal systems of some those countries do not provide for disinheritance. Therefore, in connection with the entry into force of the EU Regulation No. 650/2012 on succession, the practical application of this institution appears to be problematic even at first glance. Therefore, the author believes that it seems necessary to present the disposition of disinheritance and the possible consequences of its use arising from the entry into force of the EU Regulation No. 650/2012 on succession. Because it is not possible to present all European solutions in one [scientific] article, the subject of author’s presentation is the situation in which the law applicable to inheritance cases against the EU Regulation No. 650/2012 on succession is the Polish law.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.

Quincy Jones Wins Cut of Michael Jackson's Hits ... $9.4 Million!

Quincy Jones, producer of a number of Michael Jackson’s best-selling albums, won a $9.4 million jury award against MJJ Productions and Sony. The producer accused accountants of falsely characterizing income from record sales in order to avoid paying him royalties. After the verdict, Jones said, “This lawsuit was never about Michael, it was about protecting the integrity of the work we all did in the recording studio. I view it not only as a victory for myself personally, but for artists' rights overall."

See Quincy Jones Wins Cut of Michael Jackson's Hits ... $9.4 Million!, TMZ, July 26, 2017.

Canada Debates Whether Gift of Leibovitz Photos Is a Tax Dodge

Oh, sweet Canada. Home to dancing fountains of maple syrup, a Tim Horton’s on every corner, and the friendliest, most apologetic people in the world. What could go wrong in this heavenly wonderland? Oddly enough, a recent issue in the wintery haven concerns a gift. Bureaucrats in the Canadian government are having a hard time trying to decide if they should sign off on a donation of American portrait photographer Annie Leibovitz’s art to a gallery in Nova Scotia. The original donor is seeking a $20 million tax deduction after paying only $4.75 million for the 2,070 portraits in the collection. The collection’s value has been independently verified on multiple occasions, but the Canadian Cultural Property Review Board has refused to give the donation its stamp of approval. The director of the museum, Nancy Noble, is hopeful the board will come through on their fourth try.  

See Sopan Deb & Colin Moynihan, Canada Debates Whether Gift of Leibovitz Photos Is a Tax Dodge, The New York Times, July 25, 2017.

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

Article on Distributive Justice and Donative Intent

Alexander A. Boni-Saenz recently published an Article entitled, Distributive Justice and Donative Intent, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.