Wills, Trusts & Estates Prof Blog

The ‘Golden Girls’ Trend Could be a Golden Opportunity for Retirees Facing Isolation

Instead of living with their younger family members such as children and grandchildren, retirees are deciding to become roommates with fellow individuals in similar circumstances. "I found myself getting increasingly depressed because I didn’t have any contact with people my own age,” Jane Callahan-Moore, 69, said after she moved in with Stefanie Clark, 75.

The neighborhood they reside in has easily accessible restaurants and stores, so the fact that neither own a car is no issue. As older people lose the ability to drive, many find themselves trapped in their homes, unable to run errands or meet with friends. This unfortunate situation can lead to isolation, loneliness, and depression.

Living with a roommate or housemate can also lower the burden of bills while on a fixed income. “In the broader population, shared living in the last decade has exploded, especially in cities where housing costs are quite high,” said Gary Painter, professor in the University of Southern California’s Sol Price School of Public Policy. With the older population growing rapidly, so is the number of older individuals sharing homes. According to Harvard University’s Joint Center for Housing Studies this number increased by an amazing 88%, making the 'Golden Girls' lifestyle more and more commonplace. 

See Adina Solomon, The ‘Golden Girls’ Trend Could be a Golden Opportunity for Retirees Facing Isolation, Washington Post, January 24, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

Article on Technology Tools for Real Property and Trusts and Estates Lawyers

The integration of technology into the practice of law has been a double-edged sword for most practitioners. On one hand, technology has made some things easier and faster. On the other hand, it can generate a lot of frustration, delay, and expense. When tech began impacting our profession in the early 1990s, the conventional wisdom was for lawyers to focus on doing what only lawyers could do and let the support staff deal with the new technology tools. Of course, it has now become nearly impossible for a lawyer to do his or her job without using technology directly. To make matters worse, the technology tools change at a dizzying pace, and there is often no one around to ask for help. As a result of all of this, lawyers often feel behind the curve and wonder where they should focus their efforts to improve efficiency and profitability. Here are some ideas.

See Barron K. Henley, Technology Tools for Real Property and Trusts and Estates Lawyers, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.

New York City Woman Sues Hospital After Reported Confusion Over End of Life Support

Shirell Powell is suing St. Barnabas Hospital in the Bronx after she authorized doctors to cut off the life support of a man she was led to believe was her brother. In fact it was another man with the same name, but Powell and her family had already started to grieve the lost of their family member.

Freddy Clarence Williams was admitted to the hospital on July 15 after being found unconscious with brain damage following a drug overdose. The staff searched their records and saw that a Frederick Williams had been a previous patient and contacted that man's next of kin. Though there were questions of identity by another sibling, Powell said that it was hard to determine if the man was positively her brother because the man laying on the hospital bed had a tube in his mouth and his face was severely swollen.

The family eventually decided that the man's facial features were similar enough that it was their loved one, even having on of their brother's teenage daughters come to the hospital to say goodbye. Powell consented to ending the man's life support on July 29, and she was told a month later by the medical examiner that there had been a mistake of identity. 

The real Frederick Williams was alive and in jail, which the family had not known at the time. Powell is seeking an unspecified amount of compensation for severe emotional harm.

See Paulina Dedaj, New York City Woman Sues Hospital After Reported Confusion Over End of Life Support, Fox News, January 30, 2019.

Johnny Cash's Property Selling for $3.95 Million

Fans of the Man in Black may be excited to buy the four-and-a-half acre land in Tennessee that he had owned, but the 14,000 square foot mansion will not be accompanying it. Johnny and June Carter Cash's house of 35 years unfortunately burned down in 2007 during renovations brought by a new owner. A cabin that measures 546 square feet still remains, which was used as June Carter Cash's wardrobe closet, as well as a pool, a guardhouse, a tennis court, and a large garage. The property also sits right next to Lake Hickory - complete with a dock.

The property has only had a handful of owner's since Cash's death in 2003. At the time of its last listing in 2016, the property was appraised at $1.14 million. It is currently listed for $3.95 million.

See Michael Bartiromo, Johnny Cash's Former Tennessee Property Selling for $3.95 Million, Fox News, January 29, 2019.

Elizabeth Warren to Propose New ‘Wealth Tax’ on Very Rich Americans, Economist says

Massachusetts' Senator and Presidential candidate Elizabeth Warren is set to propose a new "wealth tax" for citizens with more than $50 million in assets. The 2% tax (3% for those worth $1 billion or more) is an attempt to resolve the intense wealth inequality in the country.

The tax on the wealthy would bring the federal government $2.75 trillion over the course of a decade from 75,000 families, which would be 0.1% of American households, says Emmanuel Saez, an economist from the University of California who is advising Senator Warren.

Though Warren's campaign declined to comment on the details of the plan, a person close to campaign provided a few of the intricacies. These including increasing the funding to the Internal Revenue Service significantly, requiring a certain number of taxpayers that subject to the wealth tax to be audited every year, and a one-time tax penalty for those that have more than $50 million in assets and attempt to renounce their American citizenship.

Combined with the marginal tax increase proposed by Representative Alexandria Ocasio-Cortez of 70% for those making $10 million or more, the ideas being put forth by many Democrats show how the economic goals of the party are shifting.

See Jeff Stein & Christopher Ingraham, Elizabeth Warren to Propose New ‘Wealth Tax’ on Very Rich Americans, Economist says, Washington Post, January 24, 2019.

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

A Neuropsychologist’s Take on Mental Capacity Evaluation [California]

Jonathan Canick, Ph.D., who spoke last year at the Sacramento Estate Planning Council on the subject of “Aging, Cognition and Capacity," has practiced neuropsychology for over 30 years. He has assisted attorneys and family members when there is an issue of a person's mental and testamentary capacity, even when the assessment is performed posthumously.

Dr. Canick says that, contrary to popular belief, " significant changes in cognitive and mental functioning are not a normal part of aging." If a change or decline does occur, it usually involves the beginnings of a disorder or disease or other negative influence. Though instances of dementia increase once a person is past their seventh decade, it has been noted that those that live into their 90s do not suffer from major cognitive disorders. "Aging is not a neurodegenerative disease," and the ability to generate new brain cells and learn new things occur throughout a person's life.

The California Probate Code specifies that determination of mental capacity does not rest solely on a diagnosis, but on the amount of ability a person has for effective information processing. Thus, a person with a diagnosis of dementia or Alzheimer's may still retain testamentary capacity while a person without a diagnosis does not have that capacity. A neuropsychological evaluation can identify deficits and strengths in mental functioning and helps determine whether a person has or lacks sufficient cognitive function to perform a given act.

See Jeffrey S. Galvin, A Neuropsychologist’s Take on Mental Capacity Evaluation, Trust on Trial, January 22, 2019.

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

Article on Sustainable Trusts and Estates and Real Property Practices: Building a Law Firm that Will Thrive Now and in the Future

Many lawyers are concerned with how their practices can remain relevant and profitable as the legal industry changes. There are many reasons for such concern. Although the legal industry is changing, however, it is possible to design a law firm that will sustain itself both today and in the future. To achieve a solution requires mindful attention to the current state of one's law firm and the industry as a whole. In addition to changes in the industry, changes in the workforces must be considered.

See Mary E. Vandenack, Sustainable Trusts and Estates and Real Property Practices: Building a Law Firm that Will Thrive Now and in the Future, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.

Ashes to Diamonds: Austin Startup Finds Unusual Way to Remember Loved Ones

Adelle Archer, along with co-founder Garrett Ozar, founded Eterneva in 2017 in the capital of Texas, providing the service of using cremated ashes of a loved one to create a diamond. The company has made more than 200 diamonds from the remains of humans as well as pets, but when Florian Oger and his wife Renee Rouleau came in for their consultation, it was the first time to meet with the person who was requesting to be the diamond.

Oger had been diagnosed with terminal cancer and only had a few months to live. He wanted his ashes to be created into a diamond so that his wife could carry him with her on her adventures.

The company allows personalization of the diamonds with color choices. Oger chose black for his son and green for his daughter as those were his race car colors, and his wife also chose green but because she characterized his as "a green type of guy."

The diamonds offered can range from $2,400 to $20,000, and Archer said that the average customer usually designs a diamond that is around $9,000. With cremations becoming more and more utilized, this could serve as a more personal and tangible memory of a loved one instead of an urn next to the fireplace.

See Nicole Cobler, Ashes to Diamonds: Austin Startup Finds Unusual Way to Remember Loved Ones, Statesman, January 25, 2019.

Special thanks to Joseph C. Gagen (Austin, Texas Attorney) for bringing this article to my attention.

Article on Don't Forget About Pets When Planning for Disability and Death

Gerry W. Beyer and Barry Seltzer published an Article entitled, Don't Forget About Pets When Planning for Disability and Death, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

Dogs, cats, parrots, and other pet animals play significant roles in the lives of many individuals. The bond between a pet owner and his or her companion is strong, and recent studies show that this bond can be even deeper with older owners. Accordingly, it is of vital importance to include pets when a pet owner, especially an older one, makes plans for disability and death. This article provides an overview of the techniques a pet owner should consider when planning his or her estate.

Wrongdoer Deprived of Elective Share [New York]

The elective share statute of New York is intended to provide a decedent’s surviving spouse with a minimum amount of the deceased spouse's estate. There are certain, enumerated actions within the statute that can cause a surviving spouse to lose their entitlement to an elective share. The Surrogate’s and Appellate Courts have crafted a further ground for forfeiture when equity so requires. This was the result in a recent case, Matter of Beck.

The Court framed three issues to be heard, lodged principally in whether the decedent possessed the requisite mental capacity to marry the petitioner. It was found that there was plenty of credible evidence questioning the decedent's capacity to enter into a marriage contract, including his inability to accurately fill out the marriage license the day before he was to be married to the petitioner. A photograph that had been taken on his wedding day in which the decedent appeared dazed and confused.

The standard for mental capacity for entering into a marriage is that both parties fully understand the nature, effect, and consequences of their actions. The court found that the decedent was incapable of understanding or consenting to his marriage to the petitioner, and that the petitioner was well aware of his incapacity at the time. The petitioner had been the decedent's primary caretaker and had experience in the medical field, thus invalidating the defense that petitioner was not aware of the decedent's incapacitation. 

After considering the secrecy of the marriage, the control petitioner had over the day-to-day activities of the decedent, and other evidence in the same vein, the court concluded petitioner had exercised undue influence over the decedent and denied the petitioner's request for an elective share of decedent's estate.

See Ilene Cooper, Wrongdoer Deprived of Elective Share, New York Trusts & Estates Litigation Blog, January 23, 2019.

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