Wills, Trusts & Estates Prof Blog

Special Report: In the Market for Human Bodies, Almost Anyone Can Sell the Dead

The death of a loved one can be a financially difficult time. The costs of a funeral service, burial, and other associated expenses may add strain to already tight budgets. Southern Nevada Donor Services (SNDS) offers a means for struggling families to pay these expenses: donate the corpse of the loved one for use in medical studies in exchange for free cremation. This deal seems to be a win-win for both the family and the donor service, but SNDS has recently been shown to engage in some troubling practices. As early as 2015, neighboring tenants started noticing an odd smell emanating from the SNDS warehouse. There were also some reports of bloody boxes left in a dumpster.

In December of 2015, health inspectors were called out to SNDS in response to a complaint. They arrived to witness a SNDS employee thawing a frozen torso in the courtyard with a garden hose. Pieces of tissue and blood were actively being washed into a nearby gutter. Though this apparent desecration of a corpse seems deserving of some serious reprimand, the inspectors could do nothing other than issue a citation. In this unregulated market, there is little oversight and the consequences for traditionally abhorrent acts are minimal. Joe Collazo, a SNDS employee not involved in the incident, was apologetic and said of the industry: “To be honest with you, I think there should be regulation. There’s too much gray area.”

See Brian Grow & John Shiffman, Special Report: In the Market for Human Bodies, Almost Anyone Can Sell the Dead, Reuters, October 24, 2017.

Special thanks to Deborah Matthews for bringing this article to my attention.

Article on Property Transfers to Caregivers: A Comparative Analysis

Adam S. Hofri-Winogradow & Richard L. Kaplan recently posted an Article entitled, Property Transfers to Caregivers: A Comparative Analysis, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Caregivers are key recipients of property transfers, both inter vivos and testamentary. The law's treatment of property transfers to caregivers changes according to the caregiver's relationship to the person cared for. Where caregivers are related to care recipients, the law generally favors the structuring of property transfers to caregivers as capital, rather than income transfers: while the law accepts that the daily work of care, done by people for their relatives, is often uncompensated, many family caregivers receive bequests larger than their intestate shares of the care recipient’s estate. Where, on the other hand, caregivers are not related to care recipients, the law approaches the care relationship using the terminology and frame of labor law. Bequests to non-family caregivers can raise a presumption of undue influence.

In this Article, we examine the approaches taken to property transfers to caregivers by the U.S., Israel and the U.K. The U.S. authorizes the payment of public benefits to family caregivers only in very restricted situations, relying on family caregivers working for free or being compensated by the care recipients. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. We examine the pros and cons of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient and claims raised against the recipient’s estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the U.S., a fully publicly funded model is probably impossible.

 

Devastated to Learn Their Missing Daughter, 28, Was Actually Found Dead EIGHT Years Ago and Buried in an Unmarked Grave After a “Mix-up”

Crissita Cage-Toaster, 28 at the time she went missing, disappeared in Detroit in October of 2009. In an effort to locate her, Cage-Toaster’s parents put up missing-persons signs throughout the city and provided authorities a detailed description of their daughter. Cage-Toaster’s parents were informed this past September that their daughter had actually been found five months after she was reported missing. A mix-up by local police led to Cage-Toaster being buried as a Jane Doe. Wayne County officials are planning to exhume the body for a proper burial.

See Emily Crane, Parents Devastated to Learn Their Missing Daughter, 28, Was Actually Found Dead EIGHT Years Ago and Buried in an Unmarked Grave After a “Mix-up”, DailyMail.com, October 30, 2017.

Crematory Sends Grieving Utah Family Wrong Remains

Dealing with the loss of a loved one is a stressful and traumatic event. In times of mourning, the bereaved do not need to endure any additional complications. For Kim Goodsell, unwelcome chaos was thrust upon her and mourning family members after the loss of her brother, Kevin. Goodsell’s brother died in Stockton, California. Her family arranged to have his cremated remains shipped to Utah for burial. Upon arrival, Goodsell noticed that the name noted on the remains were not those of her brother. Apparently, the crematory in California had shipped the wrong remains to Utah. Though the staff was apologetic, Goodsell remarked that the events represented “the worst 75 hours of our lives.”

See Crematory Sends Grieving Utah Family Wrong Remains, Fox News, October 29, 2017.

Happy Halloween!!

Many practice areas 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 who practice wills, trusts, estates, probate, and estate planning.

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

Daughter Seeks Millions from Esprit Co-founder Douglas Tompkins’ Will

Douglas Tompkins, co-founder of North Face and Esprit, died in Chile in 2015 while kayaking. During his life, Tompkins and his wife, Kristine, fought to preserve huge swaths of open acreage in Chile and Argentina. His will reflected his this passion and the final disposition of assets went to Kristine and foundations created to continue funding preservation efforts.

Tompkins’s daughter, Summer Tompkins Walker, is not a fan of her father’s estate plan or, quite apparently, her father. She has already challenged the will in California courts and plans to do so in Chilean courts. Because Tompkins had established permanent residency in Chile, Walker is arguing that the laws of Chile, not California, apply to the disposition of the estate. Walker stated: “We are all very hardworking, productive people not looking for a handout, and he clearly had no trust of us and no respect. So I take (his will) at face value. It’s definitely an insult. But he is dead, rotting in the ground as we speak.” As a final nail in the coffin, Walker added that her father was, “a completely self-absorbed human being, a narcissist.”

See Matier & Ross, Daughter Seeks Millions from Esprit Co-founder Douglas Tompkins’ Will, San Francisco Chronicle, October 29, 2017.

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

Funeral Home Horrors Put Spotlight on Spotty Regulations

The rotten stench of decomposition and death hung heavy in the air of a quiet Flint, Michigan neighborhood. Perhaps unsurprisingly, the Swanson Funeral Home was the source of the stench. Inspectors sent to the funeral home after multiple complaints found ten bodies decaying in an unrefrigerated garage. At least one corpse was not embalmed and had been in the garage for about six weeks. The funeral home had previously been fined several times and had received a number of complaints, including mixing up two bodies. Scott Gillian, the National Funeral Directors Association’s general counsel, said, “I think better state oversight is certainly the solution, [but] it’s really going to be a budget thing. Most states are struggling with budgets. It costs more money to hire inspectors and hire better enforcement.”

See Corey Williams, Funeral Home Horrors Put Spotlight on Spotty Regulations, Associated Press, October 29, 2017.

Article on Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants

Terri Lynn Helge recently posted an Article entitled, Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

New charitable organizations generally must file an application for exemption (Form 1023) and await approval from the Internal Revenue Service. Unfortunately, the criteria the Internal Revenue Service uses to evaluate applications has not always been transparent. If an application is approved, the Internal Revenue Service determination letter and the application for exemption are required to be made publicly available and can be requested from the Internal Revenue Service or the organization itself. Prior to 2004, in the case of denials, neither the application nor the Internal Revenue Service’s correspondence setting forth its rationale for the denial were made publicly available. 

This project is the first of its kind. While others have commented on isolated denial letters, this study is the first to conduct a comprehensive analysis of the Internal Revenue Service denial letters issued from when they first became available in 2004 through January 31, 2017. In conducting this project, I examined 603 determination letters in which the Internal Revenue Service denied exemption to an applicant seeking recognition as charitable organizations described in Section 501(c)(3) of the Internal Revenue Code. This project looks in-depth at the basis on which the Internal Revenue Service denied exemption to these applicants. 

To provide background for the basis of on which the Internal Revenue Service reviews exemption applications for charitable applicants, Part I of this article describes the requirements to obtain federal tax exemption as a charitable organization. In Part II of this article, I explain the methodology and the process by which I arrived at the data I present. Part III presents the data from my study and my analysis of the manner in which the Internal Revenue Service applies the five-part test for exemption in its review of the applicants who were denied exemption. The data pays particularly close attention to the evidence used by the Internal Revenue Service to support its denial of tax-exempt status. In Part IV of this article, I discuss the implications of my findings on the streamlined application process implemented by the Internal Revenue Service in July 2014. My data identifies concerns with the streamlined exemption process, and I suggest revisions that should be considered to the streamlined exemption process to make it more reliable.

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

CLE on 43rd Annual Trust and Estate Conference

USC Gould School of Law's is holding a conference entitled, 43rd Annual Trust and Estate Conference, which will take place on Friday, November 03, 2017, at the The Westin Bonaventure Hotel in Los Angeles, CA. Provided below is a description of the event:

For over 40 years, USC Gould School of Law's estate planning conference has provided California practitioners with high-quality continuing education, customized for trust, estate planning and probate professionals.

Click here for the complete programming guide for the 43rd Annual Trust and Estate Conference.

Practical and Realistic Solutions to Issues in Probate, Trust, Estate Planning and Elder Law

With over 500 registrants, the Conference allows professionals to learn from both the speakers and their professional colleagues in attendance. The Conference is specially crafted for attorneys, trust officers, accountants, financial planners, professional fiduciaries, financial institution executives, underwriters, insurance advisors, wealth management professionals, paralegals, fiduciary officers and other professionals in the trust and estate planning field. Speakers typically share "how to" techniques and forms used in their practices. Attendees are provided with practical syllabus materials in both print and electronic formats, including an annually-updated Trust and Estates Directory of Los Angeles, Orange and San Diego counties. CE units are available for lawyers, accountants, financial planners and professional fiduciaries. Legal specialization credits are available in Taxation Law and Estate Planning, Trust and Probate Law.

High-Quality Education

The 43rd Annual Trust and Estate Conference featured some of the best names in trust and estate. USC Gould Professor Edward McCaffery will speak at lunch on the future of estate planning. Popular returning speakers Professor Jack Barcal (USC Leventhal School of Accounting), Jeffrey Dennis-Strathmeyer and David Lane once again kicked off the Conference with an update of recent Federal tax law, California legislation and case law. 

Other speakers throughout the day will include: Robert Barton (Holland & Knight), Gail Cohen (Fiduciary Trust International), Jeryll Cohen (Freeman Freeman & Smiley), Jody Jenkins (Fiduciary Trust International), Arnold Kahn (Holland & Knight), Linda Retz (Law Offices of Linda J. Retz), Sheri Samotin (LifeBridge Solutions), Geraldine Wyle (Freeman Freeman & Smiley) and Marshall Zolla (Law Offices of Marshall S. Zolla).

Click here for the complete programming guide for this year's Conference.

We will again have audio recordings of the Conference available to purchase. The recordings will include all the sessions and will be delivered post-Conference. You may receive CLE credit for sessions you did not attend in person. You cannot claim additional credit for listening to the audio recording of a session you attended.

 The 42nd Annual Trust and Estate Conference sold out, so be sure to register early.

Sponsorship Opportunities

There are many opportunities to sponsor the 43rd Annual Trust and Estate Conference, including the sponsorship of meals, receptions, breaks and give away items. Sponsorship starts at $3,000. Let us tailor your sponsorship opportunity to best serve your needs. Click here for more information.

Social Media

Follow us socially on Facebook/USCLawCLE and Twitter (@USCGouldCLE) for the latest news and updates on our speakers and programming. Find us online using the #USCTrust.

Article on Waiting for the Other Shoe

Russ Willis recently posted an Article entitled, Waiting for the Other Shoe, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:

Last year in Estate of Dieringer v. Commissioner the Tax Court disallowed a large portion of a claimed estate tax charitable deduction for the transfer of the decedent's controlling interest in a closely-held stock to a private foundation, where the corporation redeemed the stock at a steep discount from its reported estate tax value. The logic of the decision is arguably flawed, and the 9th Circuit federal appeals court may reverse, but the executor's troubles may be far from over.