Wills, Trusts & Estates Prof Blog

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

Friday, October 25, 2019

Article on Art Crimes and Misdemeanors: Managing Risk in Estate Administration and in Appraisals of Stigmatized Art

EstateplanningSarah Moore Johnson & Cindy Charleston-Rosenberg recently published an Article entitled, Art Crimes and Misdemeanors: Managing Risk in Estate Administration and in Appraisals of Stigmatized Art, Wealth Strategies Journal, October 3, 2019. Provided below is an introduction to the Article.

Art collectors and their estates can experience disastrous outcomes when art is acquired without proper due diligence and when art is incorrectly valued. At the root of these problems are various types of stigmatized art that commonly lurk in estate collections, including forgeries, stolen art, mistakenly attributed or unidentified works, and art that is illegal to own or trade. Failure to properly identify and value stigmatized works can result in avoidable excess tax liability, unequal distributions to heirs, overpayment of insurance premiums, family disputes, and increased vulnerability to IRS challenge.

This article provides guidance to appraisers, trust and estate attorneys, and wealth managers on how to identify stigmatized art that may complicate estate administration. It discusses the associated legal and monetary risks can be managed through advanced strategies and diligence in the selection of relevantly qualified experts.

October 25, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Pledge to Reduce Academic Marketing Waste

Climate_Action_DayIn honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools.  Most of this material is discarded without ever being read.  However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.

Continuing this practice is unconscionable in the current era, given the availability of electronic marketing options.  Limiting or eliminating reliance on paper-based materials will not only reduce the destruction of forests, it will also reduce carbon emissions generated as part of the printing and transportation processes.

Given the competitive nature of higher education, it is unlikely that individual law schools will act on their own initiative to stop or significantly curtail paper-based marketing for fear of risking their rankings.  However, positive results may be obtained by coordinating actions across numerous law schools. 

Individual faculty members as well as law schools both inside and outside the United States are therefore invited to join the Pledge to Reduce Academic Marketing Waste by emailing Prof. S.I. Strong (strongsi@missouri.edu) to indicate their support.  The names of individual law professors and institutions who have adopted the Pledge will be published on a webpage housed at Pace University.  That webpage is regularly updated to show increased support for this initiative.

The language of the Pledge is as follows:

We, the undersigned, hereby pledge to reduce academic marketing waste, individually and institutionally, by limiting or eliminating the production and transmission of paper-based marketing materials and/or by encouraging the relevant decision makers at our institutions to adopt actions and polices consistent with that goal.  Reducing academic marketing waste can take a variety of forms, including but not limited to:  (1) reducing the size of paper-based marketing materials (eg, replacing newsletters with postcards); (2) reducing the frequency of paper-based marketing initiatives; (3) adopting an opt-in rather than opt-out approach to paper-based mailing initiatives; (4) replacing some or all paper-based marketing with electronic or other forms of marketing. 

The current signatories can be seen here - https://law.pace.edu/academics/juris-doctor-program/environmental-law-program/pledge-reduce%C2%A0academic-marketing-waste - although more are being added all the time.

October 25, 2019 in Current Events | Permalink | Comments (0)

Thursday, October 24, 2019

Article on Advantages of a Donor-Advised Fund as the Charitable Component of your Financial Strategy

PeaktrustMatthew D. Blattmachr recently published an Article entitled, Advantages of a Donor-Advised Fund as the Charitable Component of your Financial Strategy, Peak Trust Company Newsletter: Fall 2019. Provided below is the introduction to the Article.

For those who want to give back, one of the first decisions that must be made is to determine what philanthropic tools are best suited for one’s individual charitable goals and financial circumstances. One philanthropic vehicle that has skyrocketed in popularity over the past decade, is the donor-advised fund, or DAF. For nearly a century, DAFs have been offered by local community foundations. More recently, DAFs have become available through the charitable extension of wealth management organizations such as Peak Trust Company’s Donor-Advised Fund (PTDAF).

October 24, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, October 23, 2019

Article on The Virtual Family Office and Personal Financial Planning

FinancialplanningSusan M. Tillery recently published an Article entitled, The Virtual Family Office and Personal Financial Planning, Wealth Strategies Journal, September 3, 2019.

Many consumers, as well as professional advisers, continue to think of personal financial planning as a tool to gather assets under management (AUM) or to sell products; however, CPA personal financial planners have developed a fee-for service model which offers integrated personal financial planning without AUM or product sales. This model embodies the essence of true independence and objectivity, as well as the sought-after fiduciary model; thereby, making it most appealing to the client.

The fee-for service model illuminates the CPAs role as the most trusted adviser. This model also serves as a clear pathway for the establishment of a Virtual Family Office (VFO) for business-owners. This article discusses the fee-for service model, how it opens the door for a firm to offer VFO services and how both service offerings utilize professional collaboration.

The term virtual family office has been loosely used over the past 10 years. On one end of the continuum you have a formal investment management structure enabling the entity to take a deduction for investment fees; this is the subject of the recent Lender case (Lender Management LLC, T.C. Memo. 2017-246). On the other end of the continuum you have a more traditional structure providing tax efficiencies, asset protection and the coordination of professional services to high-net worth (HNW) and ultra-high net worth (UHNW) families. This article addresses the latter structure and focuses on the CPA financial planner providing integrated personal financial planning services within the virtual family office structure. The key aspect of this model is collaboration.

October 23, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Trusts, Wills | Permalink | Comments (0)

Paralympic Gold Medalist Dies by Euthanasia After Battling Degenerative Spinal Pain

EuthanasiaMarieke Vervoort of Belgium won gold and silver medals in wheelchair racing at the 2012 London Paralympics and silver at the 2016 Rio Paralympics. She suffered from incurable and degenerative spinal pain, and said that the training, riding, and competition kept her alive and fighting for so long, but that signing paperwork for euthanasia gave her control over her own life.

Vervoort was a strong advocate for the right to choose euthanasia and spent her final evening with close friends and family. “If I didn't have those papers, I think I'd have done suicide already. I think there will be fewer suicides when every country has the law of euthanasia. ... I hope everybody sees that this is not murder, but it makes people live longer.”

Condolences have poured in for Paralympic athlete, including from the Belgium royal family.

See Ryan Gaydos, Paralympic Gold Medalist Dies by Euthanasia After Battling Degenerative Spinal Pain, Fox News, October 23, 2019.

October 23, 2019 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, October 22, 2019

Article on Ethical Issues in Representing a Client with Diminished Capacity

EthicsHoward S. Krooks recently posted an Article entitled, Ethical Issues in Representing a Client with Diminished Capacity, elderlawassociates.com. Provided below is an introduction to the Article.

Attorneys often encounter working with clients who have declined physically and/or mentally, which is known in legal parlance as diminished capacity. However, the law assumes that every person has legal capacity unless and until a court has determined otherwise.

October 22, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Estate Tax Can Pay Off for States, Even if the Superrich Flee

EstatetaxEnrico Moretti of the University of California, Berkeley, and Daniel J. Wilson of the Federal Reserve Bank of San Francisco recently conducted research on the likelihood of wealthy individuals remaining in states with estate tax by the time that they die. As expected, the older the wealthy get, the less likely they are to continue to live in states that charge estate taxes. But there is still a definite upside to state estate tax, and thus a possible reason for them to continue: estate taxes raised more money for states that had them than they lost in income-tax revenue when billionaires left to avoid the estate tax.

Many of the Democratic presidential candidates are proponents of imposing a wealth tax or even lowering the exemption amount on federal estate taxes. Unlike state estate taxes, the wealthy cannot simply move out of state to avoid the federal tax on their estate. Before President George W. Bush’s tax-cut package of 2001, the government offered a federal tax credit to cover the state tax liability, and as such many states passed estate taxes that exactly matched the available federal credit. Now, as of 2017, only 13 states impose their own estate taxes.

If all states imposed an estate tax, of course, the rich would have no choice but to pay it. Gabriel Zucman, an economist at the University of California, Berkeley, who has advised Elizabeth Warren on taxation issues, suggests that an easy way to maximize states’ estate tax revenues would be to reintroduce the federal credit, eliminating interstate tax competition.

See Eduardo Porter, Estate Tax Can Pay Off for States, Even if the Superrich Flee, New York Times, October 20, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law), Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law), and Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention.

October 22, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Monday, October 21, 2019

Get Your Digital Accounts Ready in Case of Death

Black bookBefore our inevitable demise, it would be a gift to our loved ones if we packaged all of our social media account passwords, email passwords, and any other digital account information together to make final arrangements and settling our affairs simpler for them. Here’s how to set up a digital “little black book” for easy and secure information sharing with family members and trusted friends.

  • Share your account logins and other secure information with a password manager
    •  A password manager is a software application that securely and conveniently stores all your account logins as well as notes you want to keep safe. These usually cost a small annual fee, but are well worth it.
  • Record and save emergency info
    •  These can include funeral plans, living will wishes, safe or even smart phone combinations or codes, important contacts - including your attorney and/or financial advisor, locations of valuables and critical papers, recurring bill information (so nothing goes into default), and any other financial information that may be needed immediately upon your death.
  • Set up dead-man switches and assign custody for your digital accounts
    •  Some accounts allow you to designate a person that can gain access upon your death or even simply after an extended period of inactivity.
  • Drill practice — teach your loved ones how to survive without you
    •  Do not surprise your family with these wishes! Make sure they accept any designations, download any necessary applications, and remember to update your information on a yearly basis.

See Melanie Pinola, Get Your Digital Accounts Ready in Case of Death, New York Times, October 3, 2019.

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

October 21, 2019 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Technology, Wills | Permalink | Comments (0)

Sunday, October 20, 2019

CLE on Qualifying for Medicaid: Asset Purchase, Transfer, and Spenddown Tactics

CLEThe National Business Institute is holding a teleconference entitled, Qualifying for Medicaid: Asset Purchase, Transfer, and Spenddown Tactics, on Thursday, January 23, 2020 at 12:00 pm to 1:30 pm. Provided below is a description of the event.

Program Description

Complying With Lookback Requirements and Guarding Family Assets

Medicaid remains one of the major sources of funding long-term care. To help your clients afford assisted care without impoverishing their families, you need accurate information on the Medicaid eligibility rules and planning techniques. This practical legal guide will give you knowledge you can apply immediately. Register today!

    • Find new ways to qualify with the Medicaid spenddown requirements.
    • Learn common actions that trigger penalty periods and how to determine their duration.
    • Take full advantage of hardship waivers and monthly spousal allowance.

Who Should Attend

This Medicaid legal guide is designed for attorneys. It will also benefit accountants and paralegals.

Course Content

    • Medicaid Asset Limits and Excluded Assets
    • Prepayment of Qualified Expenses
    • The Lookback Period and Timing of Transfers
    • Calculating and Minimizing Penalty Periods
    • Hardship Waivers and Monthly Spousal Allowance
    • Other Planning Options
    • "Medicaid Pending" - What Can be Done When the Need for Nursing Home is Immediate

October 20, 2019 in Conferences & CLE, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Saturday, October 19, 2019

A Will Without Ink and Paper

E-signOne of the pillars of executing a valid will has been signing a physical document with actual ink by the testator, usually in front of witness unless it was a fully handwritten will or in exigent circumstances. But now the convenience of technology may be lending itself to estate planning by allowing wills to be fully electronic, including the signature.

Nevada and Indiana are ahead of the game by already allowing e-signatures, and Florida and Arizona are set to follow next year. The Uniform Law Commission, a nonprofit organization that proposes laws for states to adopt, drafted the Uniform Electronic Will Act as a potential model for states, and several states seem inclined to do so. Electronic wills are not new, with websites such as LegalZoom and Rocket Lawyer offering will services. But the testator was still required to print the document off to put their signature on it with real, tangible ink, and then stored in a safe place rather than uploading it because that act would invalidate the will. “We actually don’t allow you to re-upload it because a facsimile isn’t a legitimate will,” said Dave Hanley, founder and chief executive of Tomorrow, another company that walks the user through creating a will

The Uniform Law Commission’s proposed e-will bill aims to push states to allow the validity of wills that have been electronically signed and stored in the cloud. Trust & Will, an online start-up, helps people create fully digital wills and trust documents in Nevada and Indiana and is ready to roll out its service as other states pass legislation. But some states may be hesitant and insist in editing the Commission's language to suit their own citizen's desires. As always, it would be prudent to consult with an estate planning professional to see if an electronic will with an e-signature can be accomplished in your jurisdiction.

See Paul Sullivan, A Will Without Ink and Paper, New York Times, October 18, 2019.

Special thanks to Jerome Borison for bringing this article to my attention.

October 19, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)