Wills, Trusts & Estates Prof Blog

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

Monday, June 21, 2021

Article: Organ Transplantation

David Orentlicher and Joaquin Cayon De Las Cuevas recently published an article entitled, Organ Transplantation, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

It is commonplace to say that the success of transplantation therapies has led inexorably to their generalisation. Far from the experimental nature of the first interventions carried out in the middle of the 20th century, new technologies have produced an increase in survival and a substantial improvement in the quality of life. This new scenario has made transplants a therapeutic alternative that is increasingly demanded and used. Indeed organ transplantations may mean the difference between life and death for hundreds of thousands of people worldwide. No doubt that transplants are often the most cost-effective treatment, and sometimes the only way to treat liver, lung, or heart failure.

However, it should not be forgotten that the transplantation process is characterised by a series of factors that make it different from any other therapy. The most important is the persistent gap between the need for transplants and the availability of organs. The shortage of organs affects all countries. Official figures show that there is no country where the availability of organs is sufficient to meet the existing demand. In the United States, more than 100,000 people are on a waiting list for an organ, but only about 40,000 transplants were performed in 2019. In the case of the European Union, approximately 34,000 transplants were carried out in 2019, while ten patients died every day waiting for a transplant and nearly 60,000 patients remained on the waiting list at the end of the year. The existence of the organ shortage is inevitable, absent breakthroughs in synthetic organs or xenotransplantation.

Furthermore, there is enormous variability in the donation and transplant activity among different countries. The access to transplant therapies for patients varies depending on where they are in the world. These disparities in access reflect factors that are highly complex and sensitive, including legal (type of legislation and consent systems in place in the country), organisational (performance of national transplant programmes and teams), and cultural (such as the awareness in the general population, the health literacy or religious beliefs). Thus, for example, organ transplants are mostly carried out in countries that have reached a certain degree of development and have promoted the implementation of the systems that make them possible.

Still, as indicated, the shortage of organs is a global problem that affects all countries, both those that have implemented effective donation and transplant systems and those that still lack them. Accordingly, in the regulation of organ transplantation, considerable attention is paid to strategies for increasing the organ supply and policies for allocating the organs that are available.

June 21, 2021 in Articles, Current Events, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, June 19, 2021

Article: IRS Guidance About the SECURE Act's Beneficiary Provisions Requires Revision

Albert Feuer recently published an article entitled, IRS Guidance About the SECURE Act's Beneficiary Provisions Requires Revision, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

The IRS has presented its first and only guidance about how the SECURE Act changed the Required Minimum Distribution (RMD) Rules. This was done in a detailed IRS guide for preparing 2020 returns, and an IRS FAQ web site that referenced the guide that had been released a day earlier. The SECURE Act limited the set of individual beneficiaries permitted to use their own life expectancy to stretch out the benefit distributions after the death of participant. Non-favored individual beneficiaries became subject to a 10-year rule similar to the 5-year rule upon which it is based. The 5-year rule does not require any benefit distributions before the end of the 5-year period, but requires distribution on or before the final day of the period. The 5-year rule is applicable to an estate or trust not treated as a pass-through entity when the participant died before attaining the participant’s required beginning date.

The IRS correctly treats the 10-year rule as replacing a disfavored individual beneficiary’s ability to use the beneficiary’s life expectancy to determine annual RMDs. The return guidance incorrectly describes the 10-year rule as requiring annual distributions in each year following the participant’s death even though the 5-year rule has no such requirement. Furthermore, if the participant dies after attaining the participant’s required beginning date, the IRS guidance prevents a disfavored individual beneficiary from continuing to use the participant’s life expectancy to determine annual minimum required distributions. The IRS does this even though such continuation would result in no further stretch-out of the benefit distributions, and an estate or trust not treated as a pass-through entity may so use the participant’s life expectancy. These limitations are not consistent with the stated purpose of the SECURE Act RMD provisions, the long-standing IRS regulations interpreting the RMD rules, or the amended RMD statute as a whole. Moreover, they may be readily avoided by well-advised participants.

June 19, 2021 in Articles, Current Events, New Legislation | Permalink | Comments (0)

Friday, June 18, 2021

ACTEC Shares Useful Resources

This week The American College of Trust and Estate Counsel, ACTEC, shared the following resources that may be of interest to you.

ACTEC Trust and Estate Talk

Using Multiple Nongrantor Trusts for Multiple Tax Benefits - Five reasons why tax and estate attorneys might want to recommend multiple non-grantor trusts for tax benefits for their clients.

June 18, 2021 in Estate Administration | Permalink | Comments (0)

Article: Trusts: Modern Taxonomy And Autonomy

Ying Khai Liew recently published an article entitled, Trusts: Modern Taxonomy And Autonomy, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Provided below is the abstract to the Article. Estate planning

It is unfortunate that judges and commentators do not all agree on what express, resulting, and constructive trusts are. This paper develops a vigorous taxonomy of these trusts by identifying the key distinctive event(s) which trigger(s) each type of trust, which establishes their respective conceptual space. Thus, express trusts respond to a unilateral, proper manifestation of positive intention to create a trust; resulting trusts respond to a unilateral, negative intention; and while constructive trusts do not bear a unitary definition, they occupy a unique conceptual space, with different groups of constructive trusts responding to events which differ from those to which express and resulting trusts respond. The paper then reflects on one significant advantage of the proposed taxonomy — that it allows us to understand and appreciate trusts law as comprehensively autonomy-enhancing.

June 18, 2021 in Articles, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Thursday, June 17, 2021

Barry Sherman’s will divided his estate among Barry and Honey’s four kids when they reach 35 years of age

Though Honey Sherman did not have a will, Barry Sherman had two. Documents that were unsealed by a court last week list assets of $124 million, which are outside of the majority of Sherman's estate that is wrapped up in his private companies. 

Barry Sherman was the founder and owner of Apotex, "a generic pharmaceutical giant." Barry and his wife Honey were well known Philanthropists. 

According to the estate papers, the Shermans' four children were left equal shares of a fortune that has been estimated to be around $10 billion. Though, the kids are not to receive their quarter shares until they reach age 35. 

According to The Star, this is only one of a few intriguing details "in a box of documents that has been sealed since shortly after the Shermans were murdered." Apparently, the Shermans who were one of the most generous couples in Canadian history did not have a provision for money to go to charity. 

When the Shermans were murdered in 2017, their kids were aged 43, 34, 32, and 27. Barry's will states that "until the child reaches 35 years of age, the trustees of his estate have the 'unfettered discretion' to make payments to the child for the 'maintenance, education, advancement in life' of the child. 

See Kevin Donovan, Barry Sherman’s will divided his estate among Barry and Honey’s four kids when they reach 35 years of age, The Star, June 11, 2021. 

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

June 17, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Wednesday, June 16, 2021

Wyoming Supreme Court: Beneficiaries Cannot Intervene In Wrongful Death Action

Estate planningIn Archer v. Mills, the Wyoming Supreme Court addressed "whether heirs of a decedent can intervene in a wrongful death action brought by the wrongful death representative." 

According to the Wyoming Supreme Court, the answer is no. 

Carrie Linn died shortly after undergoing elective surgery. Kallista Mills, the decedent's niece, was appointed decedent's wrongful death representative. Mills alleged that Charles Linn, decedent's surviving spouse, negligently caused decedent's death. On those grounds, Mills brought a wrongful death action against Charles Linn. 

A year later, Mills signed a "Release of All Claims" and filed a stipulation motion to dismiss the wrongful death action with prejudice. 

After the motion was signed, but before it was filed, Carrie Linn's daughters (Lacie Archer and Emily Farley) decided to intervene int he wrongful death action. 

The district court dismissed the action with prejudice after Ms. Archer and Ms. Farley failed to serve opposing counsel with the motion to intervene within ten days of the hearing. Ms. Archer and Ms. Farley appealed. 

In Wyoming, "only the appointed wrongful death representative can bring a wrongful death action. . ." Further, the wrongful death representative represents the interests of the beneficiaries according to a Wyoming statute. 

The Wyoming Supreme Court found that wrongful death actions "shall be brought by" (emphasis added) the wrongful death representative. The Court emphasized that the word "shall" in statutes has always been considered mandatory. 

See Wyoming Supreme Court: Beneficiaries Cannot Intervene In Wrongful Death Action, Probate Stars, June 14, 2021. 

June 16, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, June 15, 2021

Britney Spears will appear remotely at conservatorship hearing

SpearsBritney Spears will appear at her next conservatorship hearing remotely—along with everyone else. 

On Monday the Los Angeles County Superior Court confirmed that "all parties, including Ms. Spears, are scheduled to appear remotely" for the June 23 hearing.

According to a press release, "[l]imited seating will be available in the courtroom and in an overflow courtroom with a live audio feed from the court." 

The June 23 hearing will be the first time Spears will address LA Superior Court Judge Brenda Penny. 

According to a source close to Britney Spears, her primary focus "is having her father, Jamie Spears, removed from the case." 

The source also said, "[s]he feels that ending the conservatorship entirely can always be discussed down the road, but right now the issue is Jamie."

Samuel D. Ingham III, Britney Spears' attorney stated that Spears was afraid of her father Jamie and "will not perform" going forward should he remain in charge of her career.

See Alex Heigl, Britney Spears will appear remotely at conservatorship hearing, Fox News, June 14, 2021. 

June 15, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Article: Question of Women Rights: Stri Dharma on the Hindu Women’s Rights Violation in In Colonial Tamilnadu, 1926 – 1936

V. Venkatraman and Dr. Kalaivana Rajendran recently published an article entitled,  Question of Women Rights: Stri Dharma on the Hindu Women’s Rights Violation in In Colonial Tamilnadu, 1926 – 1936, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

The status of women in India has been subject to many changes over the span of recorded Indian history. Practices such as female infanticide, dowry, child marriage and the taboo on widow remarriage, which began in upper-caste Hindu society in Northern India, have had a long duration, proving difficult to root out, and in the instance of dowry have spread to all castes, classes, and even religions. Women in colonial India were no less progressive, aware and active in gender, political and socio-economic issues than the women today. Stri Dharma a woman edited journal exposed the problems of women to the world. The struggling of women in their life from birth to death was brought to light by Stri Dharma a Women's Journal. In its Columns it filled the news related to women issues. Even under the rule of British Raj women wrote the issues against the women particularly Social issues.

June 15, 2021 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Monday, June 14, 2021

Prince Philip Reportedly Left £30 Million in His Will to “Three Key Staff” Members

PhilPrince Philip reportedly left a very generous gift to his closest staff members upon his passing in April. The majority of Prince Philip's estate was likely left to his wife, but a source close to Buckingham Palace revealed that "the Duke of Edinburgh also wanted to give something special to three key staff members he was very close with."

The three staff members include his private secretary Brigadier Archie Miller Bakewell, his page William Henderson, and his valet Stephen Niedojadio.

The three men helped take care of Prince Philip all the way up until his last days. Prince Philip's private secretary, Bakewell, regularly stood in for Philip at events when he was unable to attend. Henderson and Niedojadio would also take turns staying with him during his time at Wood Farm. And Henderson was with Philip during his last two days at Windsor Castle. 

In addition to the three staff members, Prince Harry is expected to receive an inheritance despite the "bombshell Oprah interview" that aired just before Philip's death. A source claimed that the interview should not have any impact on Harry's inheritance stating "that was all sorted out quite a while ago." 

See Emily Kirkpatrick, Prince Philip Reportedly Left £30 Million in His Will to “Three Key Staff” Members, Vanity Fair, May 28, 2021. 

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.  

June 14, 2021 in Current Events, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Sunday, June 13, 2021

Plan to Revive I.R.S. ‘Wealth Squad’ Puts the Richest on Notice

Wealth taxPresident Biden has proposed "adding $80 billion to the Internal Revenue Service budget as well as giving the agency more authority to crack down on tax evasion by high-earners and large corporations." 

The propose additions came before reports were released that indicated how little in taxes the richest Americans paid from 2014 to 2018. In addition to President Biden's proposals, those reports have "intensified interest in the tax code." 

The reports do not necessarily indicate those in the high net worth categories have been engaging in illegal activity in order to pay less in taxes. It is just as likely that high-earners have simply been using the tax code to their advantage.

There are many legal tax strategies that high-earners have used to "minimize their taxes." The tax strategies appear to be exactly what President Biden looks to eliminate. 

In order to deal with this new attention to tax strategies, tax experts have agreed that the wealthy and slightly-less-wealthy should keep better records. 

If President Biden's plan is adopted, "[s]ome of the additional money in his budget would toward reviving an underfunded organization within the I.R.S. called the global high-wealth industry group, which focuses on the complicated tax returns filed by the affluent." 

See Paul Sullivan, Plan to Revive I.R.S. ‘Wealth Squad’ Puts the Richest on Notice, N.Y. Times, June 11, 2021. 

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention. 

June 13, 2021 in Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)