Wills, Trusts & Estates Prof Blog

Utah’s Headstone Fudge Recipe Shared Around The World

During Memorial Day Weekend, it is normal for cemeteries to see heavy traffic. However, there is one gravestone in particular that brings a unique amount of traffic. 

The headstone is located in Salt Lake City, Utah and contains a now world famous fudge recipe. The headstone is that of Kathryn Andrews, who according to her daughter Janice Johnson, loved people and enjoyed writing poetry and making fudge. 

Johnson said she was really surprised by all of the attention the gravestone receives. According to Johnson, “We’ve looked online, and I guess it’s gone even to Europe.”

When Kathryn Andrews was young she moved to New York City where she met Air Force Captain Wade Andrews. When the couple met, Captain Andrews was waiting to fly out to go to World War II. The couple had one date and Captain Andrews left for Germany the next day. 

He When Captain Andrews returned, he had with him a diamond ring, which he gave to Kathryn at the Capitol steps. They were married 18 days later. 

See Utah’s Headstone Fudge Recipe Shared Around The World CNN, May, 28, 2021

 

Your Residence Is Your Retirement

As retirement approaches, many people begin thinking about their future living arrangements—but rarely take action. 

"According to the U.S. Bureau of Labor Statistics even though housing is the largest average cost in retirement, older Americans move far less often than the general population." 

Many people spend their retirement in their existing homes, unless they have to move due to health issues. 

According to Forbes, "from a financial standpoint, this rarely makes sense. A house is generally a poorly diversified, cash flow intensive investment that historically only maintains a price commensurate with inflation." 

Essentially, a house is more of a lifestyle choice than it is an investment. Therefore, changing your residence when you retire could be the best move. 

When you retire, your residence heavily influences your lifestyle and daily activities. 

Financing a new housing lifestyle could provide a lot of new options and opportunities. 

See Steve Parrish, Your Residence Is Your Retirement, Forbes, May 26, 2021. 

Article: Asian Wealth in the United States: Some Legal Answers and Policy Questions

Thomas P. Gallanis recently published an article entitled, Asian Wealth in the United States: Some Legal Answers and Policy Questions, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article: 

Private wealth in Asia is substantial. In 2019, the Asia-Pacific region had approximately 6.5 million high net worth individuals (HNWIs) with investable assets of approximately US$22.2 trillion. This represented approximately 33 percent of the global population of HNWIs and approximately 30 percent of global HNWI investable wealth. These percentages are larger than the corresponding percentages for any other region. In second place was North America, which had approximately 32.1 percent of the global HNWI population and approximately 29.3 percent of global HNWI investable wealth. The largest markets in the Asia-Pacific region are Japan and China, with HNWIs numbering approximately 3.4 million in Japan and approximately 1.3 million in China.

Private wealth often is invested internationally. Such wealth is known as ‘outbound’ wealth from the perspective of the country of origin and ‘inbound’ wealth from the perspective of the country of destination. The US is both a source of outbound wealth and a destination for inbound wealth.

This paper, prepared for a conference on ‘Asian Wealth in the Global Context’, is about Asian wealth in the United States. Such a broad topic, however, must be narrowed in order to become manageable in one essay. This paper explores the use of US law and legal institutions to transmit private wealth by individuals who are citizens and residents of Japan or China, the nations in Asia with the greatest number of HNWIs. The wealth transmission examined here occurs in the form of a donative transfer at death, typically within the family and often across generations.

This paper proceeds in two main parts. The first focuses on the current law. It examines the use of five prominent mechanisms in US law for the deathtime transmission of private family wealth. These are wills, revocable and irrevocable trusts, life insurance policies, retirement accounts, and survivorship interests in real property by joint tenancies or transfer-on-death deeds. The part explores the extent to which these US mechanisms are available to individuals who are citizens and residents of Japan or China. In considering this question, the paper examines not only US succession and trust law but also US tax law. The second main part turns from law to policy. It raises five policy questions about US wealth transfer law and its use by individuals who are noncitizens and nonresidents.

ACTEC Shares Useful Resources

ACTEC Trust and Estate Talk (for professionals)

Protecting Yourself and your Clients from Cyberattack - Tips for wealth and trust and estate managers to share with clients to prevent cybercrime and identity theft, from a former FBI cybersecurity agent.

Legislative Comments

ACTEC Submits Recommendations to IRS for 2021-2022 Priority Guidance Plan - ACTEC submitted recommendations pursuant to Notice 2021-28, 2021-18 I.R.B. 1130, published April 14, 2021, which invites recommendations for items that should be included on the 2021-2022 Priority Guidance Plan.

IRS Practice Units

"As part of LB&I's knowledge management efforts, Practice Units are developed through internal collaboration and serve as both job aids and training materials on tax issues. For example, Practice Units provide IRS staff with explanations of general tax concepts as well as information about a specific type of transaction. Practice Units will continue to evolve as the compliance environment changes and new insights and experiences are contributed."

Visit the link below to view the practice units: 

https://www.irs.gov/businesses/corporations/practice-units

Special thanks to Mark J. Bade (CPA, GCMA, St. Louis, Missouri) for bringing this article to my attention. 

 

Ruth Bader Ginsburg leaves estate to children and housekeeper, report says

Ruth Bader Ginsburg left most of her estate to her children, but she also named her housekeeper in her will. 

Through RBG's estate, her children received her possessions and personal property and her longtime helper, Elizabeth Salas, received a generous bequest. 

RBG's estate was valued at just under $6 million, out of which a portion ($40,000) was set aside for Ms. Salas who worked for her for 22 years. 

RBG and Ms. Salas were said to have a very close relationship. Ms. Salas even sat next to Joe Biden when Justice Ginsburg "lay in state at the US Capitol last year." 

RBG was appointed by President Bill Clinton and served on the U.S. Supreme Court from 1993 until her death last year at the age of 87. 

See Ruth Bader Ginsburg leaves estate to children and housekeeper, report says, Yahoo Finance, May 25, 2021. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Article: Endorsing After Death

Andrew Gilden recently published an article entitled, Endorsing After Death , Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:
 

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and increasingly have been embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Marilyn’s name, have successfully brought false endorsement claims under Section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a highly-paid celebrity endorser even though she died almost 60 years and her “Estate” is controlled by individuals with zero personal connection to her.

This paper closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this article shows that posthumous endorsement rights pose unique and largely unaddressed concerns. First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent to their heirs to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the “official” voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market.

Nonetheless, there are some important reasons for intellectual property laws to recognize at least some form of posthumous endorsement rights. Marketing scholarship has shown that posthumous endorsements are often material to consumers, and there is a shared interest among the decedent, their fans, and their families in shutting down false suggestions that a good or service received the decedent’s blessing. Accordingly, this article proposes that courts only recognize posthumous endorsements rights where there is both “privity and power.” An entity can only meaningfully endorse goods or services on behalf of a decedent—or affirmatively disclaim their approval—where they (1) own the image, word, or symbol that is signaling endorsement and (2) are empowered to make legal decisions on their behalf. Only when an individual is empowered to step into the shoes of a decedent, and required to act in the decedent’s best interests, can they fairly and accurately speak for the dead.

ABA's RPTE Fellows Program Seeks Applications

The following information is from an e-mail message from Robert M. Nemzin, Chair of the RPTE Fellows Program:

The goal of the program is to give young lawyers an opportunity to become involved in the substantive work of the RPTE Section, while developing into future leaders. 

The Fellowship appointment is for two years. To be considered for selection, a person must (1) have practiced in the trusts and estates or real property area for at least one year, (2) be younger than 36 years of age or have been admitted to the bar less than 10 years, and (3) have demonstrated leadership at the state or local bar level or in the ABA Young Lawyers Division. Applicants need not be ABA or RPTE members, yet we require accepted Fellows to become dues paying members of both the ABA and RPTE. All Fellows will receive reimbursement of up to $2,750 annually to attend Section meetings. The Section promotes full and equal participation in our membership, the association, our profession, and the justice system by all persons. As such, we are committed to ensuring that no less than half of the Fellows chosen each year are diverse. 

More information regarding the program can be seen here: www.americanbar.org/groups/real_property_trust_estate/...  and a link to the application can be seen here:  www.americanbar.org/content/dam/aba/administrative/...

Article: Parent Fiduciary Breach

Robert Flannigan recently published an article entitled, Parent Fiduciary Breach , Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.

Parents who serve as trustees, and solicitors who draft trusts that involve family relations, may need to address whether parents are free to entertain conflicts and benefits that may be attributable to parent status. I discuss in broad terms the kinds of conflicts and benefits that normally should not be objectionable. The definitive consideration is the social definition of when parent access is a limited access.

Article: Third-Party Liability for Breach of Fiduciary Duty in Malaysia

Ying Khai Liew recently published an article entitled, Third-Party Liability for Breach of Fiduciary Duty in Malaysia, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

Commonwealth jurisdictions face a unique risk when English authorities are misunderstood or misapplied by local courts: erroneous legal rules can quickly become entrenched in the local laws, which are difficult to undo. The Malaysian jurisprudence in relation to the liability of third parties for breach of fiduciary duty provides clear examples this sort of risk. This paper examines in detail these third-party claims — tracing-related claims, recipient liability, and assistant liability — in the light of English law, and explains how they contain errors which are (or threaten to be) entrenched irreversibly within the local jurisprudence. It exhorts Malaysian courts to revert to orthodox principles, and more generally suggests that Commonwealth jurisdictions must independently engage with the substantive reasons of various legal rules, instead of adopting legal rules simply on the basis that those rules reflect what they understand to be English law.