Wills, Trusts & Estates Prof Blog

CLE on Land Use Law: Current Issues in Subdivision, Annexation and Zoning

The National Business Institute is holding a conference entitled, Land Use Law: Current Issues in Subdivision, Annexation and Zoning, which will take place on Tuesday, September 12, 2017 at Cobb Galleria Centre in Atlanta, Ga. Provided below is a description of the event:

Program Description

Confidently Handle Subdivision, Annexation and Zoning Processes

Looking for the latest developments on land use law? Want to know how to use the laws and regulations to your fullest advantage? With this one-day seminar, quickly advance your understanding and learn how to avoid legal entanglements to make sure every transaction is smooth and successful. Don't miss this opportunity to attain the information you need - register today!

• Expand your subdivision knowledge by knowing how city, county and township platting processes work.
• Analyze a comprehensive plan to determine if all the key elements are included.
• Know how annexation decisions are made and what filing requirements need to be fulfilled.
• Recognize who has the power to zone and how those decisions affect you.
• Ensure that critical environmental laws and procedures are adhered to.

Who Should Attend

 

This intermediate level program is designed for those who want to advance their land use knowledge to the next level. The following should attend:

• Attorneys
• City and urban planners
• Local zoning and land use officials
• Developers
• Engineers
• Architects
• Appraisers
• Surveyors

Course Content

 

Continuing Education Credit

American Institute of Architects – AIA: 6.00

American Institute of Certified Planners – AICP: 6.00 *

Continuing Legal Education – CLE: 6.00 *

International Association for Continuing Education Training – IACET: 0.60

Real Estate – Real Estate: 6.00

* denotes specialty credits

Princes William and Harry Visit Princess Diana's Memorial Garden on Eve of Death Anniversary

Catherine, Duchess of Cambridge, accompanied Prince William and Prince Harry in the White Garden at Kensington Palace to join them in remembering their mother Diana, the late Princess of Wales. Princess Diana died in a car accident in Paris just over twenty years ago. The White Garden has been dedicated to remembering the much beloved princess and was already full of tributes and flowers left by the public when Harry and William arrived.

See Princes William and Harry Visit Princess Diana's Memorial Garden on Eve of Death Anniversary, TMZ, August 30, 2017.

College Students Need A Power Of Attorney

Across the nation, college students are returning to their dorms and apartments to commence another semester of studious endeavors. For parents, this transition back to school may be filled with last-minute errands to check off to-do list items. Usually absent from the checklist is a note to draft a power of attorney. Children in college are legally considered adults. This legal status severely restricts parents’ access to information about their children to which they were previously privy.

A power of attorney, drafted correctly, allows parents to access bank accounts, medical information, grades, etc. While parents may not routinely need to exercise these powers, they are extremely beneficial in case of an emergency. Without a power of attorney, when a child is severely injured, parents are forced to go through the courts for permission to act as a proxy. This process is expensive and time consuming. A valid power of attorney can serve to avoid this issue.

There are a number of online resources available for parents to draft a power of attorney. Jennifer Guimond-Quigley, an estate planning attorney, encourages parents to seek out the services of an experienced lawyer given the nature and importance of the document.

See Jerilyn Klein Bier, College Students Need A Power Of Attorney, Financial Advisor, August 22, 2017.

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

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

New York Widow Leaves $300G To Her Cats

Ellen Frey-Wouters, a Bronx widow, left a $300,000 legacy to her two cats. Instructions in her will prescribe strict guidelines for the care of the felines. Neither Troy nor Tiger are to ever be caged and they must be lovingly cared for. Of the two, Tiger has enjoyed the greatest increase in economic benefit. The former stray, once scrounging for sustenance, now enjoys a diet featuring filet-mignon-flavored Fancy Feast and relaxes in a faux-fur bed lined with silk. Dahlia Grizzle, Frey-Wouters’s former caretaker, thinks Troy and Tiger deserved the special treatment, as the cats were very much like children to deceased.

See Julia Marsh & Reuven Fenton, New York Widow Leaves $300G To Her Cats, Fox News, August 22, 2017.

Best in Law: The Pros and Cons of the No-Contest Clause

In California, no-contest clauses are regularly included in wills and trusts as a means to prevent greedy or slighted beneficiaries from challenging the validity of an estate plan. On the surface, a no-contest clause appears to be an intimidating deterrent to any beneficiary or heir daring enough to challenge the will or trust. The consequences for beneficiaries can be especially dire. Most no-contest provisions dictate disinheritance to the challenging beneficiary.

Such a provision may seem reasonable, especially from a testator/settlor’s point-of-view, but there are some potential pitfalls. An example, if a decedent originally left her son the entire estate via trust, but through the undue influence of a caregiver the child is left only a small fraction of the estate, that child may fear bringing an otherwise legitimate claim for fear of losing what little he has received.

This may be a legitimate concern, but courts typically will not enforce a no-contest clause as long as the contesting party brings the claim with probable cause. To meet this threshold, the contesting party must show that facts known to them at the time they file the claim would lead a reasonable person to believe they had a reasonable probability of succeeding on their claim after a chance at discovery.

See Henry Welles, Best in Law: The Pros and Cons of the No-Contest Clause, The Press-Enterprise, August 5, 2017.

Article on You Can Have My Gun When You Pry It from My Hands Which Are Incapable of Managing My Own Estate by Reason of Advanced Age, Physical Incapacity, or Mental Weakness: Firearms Rights of Wards in Mississippi Guardianships and Conservatorships

Marlin Marcellus Stewart, III recently published an Article entitled, You Can Have My Gun When You Pry It from My Hands Which Are Incapable of Managing My Own Estate by Reason of Advanced Age, Physical Incapacity, or Mental Weakness: Firearms Rights of Wards in Mississippi Guardianships and Conservatorships, 35 Miss. C. L. Rev. 495 (2017). Provided below is an abstract of the Article:

The laws of the State of Mississippi allow the state's chancery courts to appoint a fiduciary for someone who is unable to manage his own affairs. As detailed below, while the appointment of a fiduciary may result in the abridgement of certain civil rights of that individual, a fiduciary appointment has previously had no statutory impact on the firearms rights of Mississippians. Recent changes in state law, however, may have changed that outcome by creating a correlation between the abridgment of a veteran's firearms rights subsequent to the appointment of a fiduciary and the firearms rights of a Mississippian in a guardianship or conservatorship. This Article will examine whether, and to what extent, Mississippi's citizens who have a fiduciary appointed to manage their personal affairs can potentially lose their right to purchase or possess12 firearms, while using as an illustrative example the impact that the assignment of a fiduciary has on the ownership rights of a veteran receiving disability compensation benefits from the VA.

The first section will provide historical background on the VA disability compensation benefit and will incorporate a brief discussion of the mental health issues facing veterans returning from combat operations in Iraq and Afghanistan, coupled with an overview of the process and purported authority by which the aforementioned veterans are being reported to the NICS. The second section will provide a brief overview of the rights Mississippians enjoy with regard to firearms. The third section will explain the range of actions, including the appointment of a fiduciary through a guardianship or conservatorship, available through the Mississippi court system to protect those who are no longer able to care for themselves. The penultimate section will analyze recent applicable law and regulations to establish that, under the current scheme, Mississippians who have guardians or conservators appointed for them under certain circumstances will soon be in similar situations to the veterans who have had fiduciaries appointed through the VA. The final section will demonstrate that although a similar reporting scheme should be in place for some Mississippians in a conservatorship or guardianship, one does not yet exist and the section will additionally propose a potential planning avenue for elder law attorneys whose clients may soon be entering a conservatorship.

 

 

There's an Unforeseen Benefit To California's Physician-assisted Death Law

Some California doctors were concerned when the state Legislature passed a law allowing terminally ill patients to request physician-assisted suicide. In addition to this being a fairly clear violation of the Hippocratic oath, many physicians harbor religious and moral beliefs in conflict with the practice. For these, the law allows an exemption.

No matter the perspective, there have been some unexpected positive consequences associated with the availability of the procedure. Namely, an improvement in the care for terminally ill patients. For those patients that request the service, only a small fraction make it through the whole process. What has changed dramatically are the conversations patients are having with physicians and health workers. Dying patients, by requesting the end-of-life option, are forced to discuss their concerns, worries, pains, and suffering they endure. In some cases, especially those suffering under constant pain, physicians may adjust medication levels to accommodate their needs. This simple change has encouraged some patients to drop from the program.

So, while the process is still controversial, it has raised awareness regarding the need for these difficult conversations between patients and doctors and how ineffective policies had been prior to the passage of the law.

See Soumya Karlamangla, There's an Unforeseen Benefit To California's Physician-assisted Death Law, Los Angeles Times, August 21, 2017.

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

Navigating the Minefields of Estate Planning with Carried Interest

Carried interest refers to the return on the portion of an investment fund reserved as compensation for investment managers. The value of this carried interest can appreciate significantly over time. Estate planners can create impressive tax savings by implementing techniques to transfer these assets to beneficiaries before appreciation. IRC § 2701, which covers carried interest, is complicated and requires experience to avoid its pitfalls. So, while appropriately using this section can help estate planners save clients incredible amounts of money in taxes, it is not an easy task.

See Allyson Versprille, Navigating the Minefields of Estate Planning with Carried Interest, Bloomberg BNA, August 18, 2017.

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

Call for Authors – Feminist Judgments: Rewritten Trusts and Estates Opinions

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Trusts and Estates Opinions.  This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States.  The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press.  Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editors Deborah Gordon, Browne C. Lewis and Carla Spivack seek prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics.  With the assistance of an advisory panel of distinguished trusts and estates scholars, the editors have selected decisions that have not appeared in other Feminist Judgment volumes; potential authors are welcome to suggest opinions which do not appear on the list, but inclusion of cases not already on the list is at the sole discretion of the editors and the advisory board.   Further, as befits a T&E focused volume, authors should be prepared to rewrite cases in ways that bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, immigration status, and beyond. 

Proposals must be either to 1.rewrite an opinion (subject to a 10,000-word limit) or 2.comment on a rewritten opinion (4,000-word limit).  Rewritten decisions may be majority opinions, dissents, or concurrences.  Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made.  The volume editors conceive of feminism broadly and invite applications that seek to advance, complicate, or critique feminist ideas and advocacy. To apply, please attach a brief cv and please rank three choices from the list.  

List of Cases: 

1. In re Strittmater's Estate, 53 A.2d 205 (N.J. 1947) (insane delusion)
2. In re Will of Moses, 227 So. 2d at 831 (Miss. 1969) (undue influence)
3. Estate of Wilson, 452 N.E.2d 1228 (N.Y. 1983) (charitable trust)
4. Cruzan v. Missouri Dep’t of Health, 497 U.S. 261 (1990)
5. Metro. Life Ins. Co. v. Fogle, 419 S.E.2d 825, 826 (S.C. Ct. App. 1992) (slayer)
6. O'Neal v. Wilkes, 439 S.E.2d 490 (Ga. 1994) (equitable adoption)
7. Via v. Putnam, 656 So. 2d 460 (Fla. 1995) (pretermitted spouses, mutual wills, and dower)
8. Estate of Myers, 594 N.W.2d 563 (Neb. 1999) (elective share and inter vivos trust)
9. Egelhof v. Egelhof, 532 U.S. 141 (2001) (ERISA preemption)
10. Drevenik v. Nardone, 862 A.2d 635 (Super. Ct. Pa. 2004) (spendthrift trust and child support)
11. Reece v. Elliot, 208 S.W.3d 419, 423 (Tenn. Ct. App. 2006) (antenuptial agreement)
12. Khabbaz v. Comm’r Soc. Sec. Admin., 930 A2d 1180 (N.H.2007) (reproductive technology)
13. Karsenty v. Schoukroun, 959 A.2d 1147 (Md. 2008) (elective share) 

Submit proposals to [email protected].no later than Friday, September 29, 2017.  The editors will notify accepted authors and commentators by Monday, October, 30, 2017.

The editors are committed to including a diverse group of authors in the volume. The Feminist Judgments Project is committed to including authors and commentators from diverse backgrounds. If you feel an aspect of your personal identity is important to your participation, please feel free to include that in your expression of interest.

First drafts of rewritten opinions will be due on Friday, February 2, 2018.  First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Carla Spivack, at [email protected], Deborah S. Gordon at [email protected], or Browne C. Lewis at [email protected].

Article on The Private Trust Company: A DIY for the Über Wealthy

Christopher C. Weeg recently published an Article entitled, The Private Trust Company: A DIY for the Über Wealthy, 52 Real Prop. Trust & Est. L.J. 121 (2017). Provided below is an abstract of the Article:

This Article focuses on the rise of private trust companies and how estate planners and settlors can use them while avoiding adverse tax consequences. In this analysis, this Article will explore the history, structures, tax consequences, and other considerations in using private trust companies. Furthermore, this Article will survey the laws of different states that have adopted legislation enabling private trust companies, and it will analyze the differences among them.