Wills, Trusts & Estates Prof Blog

Article: Protective Orders & Limited Guardianships: Legal Tools for Sidelining Plenary Guardianship

Nina A. Kohn and David M. English recently published an article entitled, Protective Orders & Limited Guardianships: Legal Tools for Sidelining Plenary Guardianship, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

By encouraging use of limited guardianships and protective orders instead of full guardianships, states can reduce the likelihood of unnecessarily stripping adults of their civil rights. Yet, although such less restrictive alternatives have long been available to most courts, in practice, their use remains limited and sporadic. This article argues that this lack of use suggests that it is not sufficient for the law to state a preference for these less restrictive alternatives, it must actually create systems that incentivize their use and actively discourage the use of full guardianships. This article then shows, using the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act as a guide, how states can adopt statutes that create such systems.

South Texas College of Law Seeks Trusts & Estates Visitor

The following is reproduced from a posting by Tim Zinnecker on The Faculty Lounge and brought to my attention by Adam J. Hirsch (Professor of Law, University of San Diego School of Law):

South Texas College of Law Houston (“STCL”) invites applications for several open positions beginning in the Fall 2022 semester. Applicants for these positions should include at least a letter of interest, CV, and three references. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply. Applications will be accepted until the positions are filled.

(1)  A full-time, tenure-track position teaching legal research and writing beginning in the 2022-23 academic year. Faculty teaching legal writing at STCL are fully integrated tenure-track faculty members with the same benefits and scholarship and service requirements as doctrinal tenure-track professors. We seek candidates with outstanding academic records who are passionate about legal writing and committed to both excellence in teaching and sustained scholarly achievement. Legal writing teaching experience is preferred but not required. Applications for and questions regarding this position may be directed to Professor Charles W. “Rocky” Rhodes, Chair, Faculty Appointments Committee, [email protected].

(2) One or more Visiting Assistant Professor (“VAP”) positions for academic years 2022-24. Our VAP program exists to help practitioners and others develop their teaching skills and scholarship to transition to full-time academic positions. A VAP is initially given a one-year contract, with the expectation of reappointment based on satisfactory performance, with a possibility for reappointment for a third year. The specific courses taught by a VAP will be determined by considering the interests and abilities of the VAP and our curricular needs, which include criminal law, criminal procedure, evidence, civil procedure, torts, first amendment law, secured transactions, and wills, trusts & estates. A VAP is eligible to be appointed to a permanent position on the STCL faculty under the same process used for all candidates for permanent faculty positions. VAP applications and questions regarding the program may be directed to Professor Kenneth Williams, Chair of the VAP Search Committee, [email protected].

(3) One or more podium visitor positions for Fall 2022 and/or Spring 2023. Our specific curricular needs include criminal law, criminal procedure, evidence, civil procedure, torts, first amendment law, secured transactions, and wills, trusts & estates. Applications and questions regarding the podium visitor position for experienced faculty may be directed to Ted L. Field, Associate Dean for Faculty, [email protected].

STCL is committed to fulfilling our mission of providing a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction. The school, located in downtown Houston, was founded in 1923 and is the oldest law school in the city. South Texas is a private, nonprofit, independent law school, fully accredited by the American Bar Association and a member of the Association of American Law Schools, with 60 full-time and 60 adjunct professors serving a student body of 900 full and part-time students. South Texas is known for its supportive and collegial culture and its commitment to student success. The school is home to the most decorated advocacy program in the U.S. and the nationally recognized Frank Evans Center for Conflict Resolution. Additional information regarding South Texas is available at http://www.stcl.edu.

STCL is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national or ethnic origin, ancestry, age, disability, sexual orientation, gender identity, veteran status, or any other characteristic protected by law.

Hirsch & McGovern California Probate Code Annotated 2022 edition released

The 2022 edition of Adam J. Hirsch & William M. McGovern's California Probate Code Annotated was recently released. Here is a summary of this volume:

Hirsch & McGovern California Probate Code Annotated, 2022 ed. (California Desktop Codes) is your comprehensive resource for probate law and estate planning in California. It provides you with the complete text of the California Probate Code, related state and federal statutes, and rules of court regarding estate planning and probate.

This volume contains:

• Authoritative commentary, annotations, and analysis of leading cases
• Law Revision Commission editorial notes that provide additional guidance in the construction and application of particular sections
• References to Witkin’s Summary of California Law, 10th which direct you toward further research
• A table of Judicial Council forms to help you identify forms to be used in conjunction with the statutes and rules
• A table of cases illustrating the cases discussed in the author’s commentary
• A table of affected sections indicating recent modifications
• Underlining to indicate additions or changes in statutes
• Asterisks to indicate deletions.

Panel urges changes to make US organ transplants more fair

According to an influential scientific advisory panel, "the U.S. transplant system needs an overhaul to stop wasting organs and give more patients a fair chance at the life-saving surgery. . ." 

Last year, the U.S. performed more than 41,000 transplants of kidneys, livers, and other organs, a record number—most of which came from donations from the dead. According to everythingLubbock, "[m]ore than 106,000 patients are on the nation's list for a transplant from a deceased donor and at least 17 die every day waiting." 

Due to the astounding numbers, the Panel has set a five-year deadline to turn things around. According to Dr. Kenneth Kizer, a well known expert in health care quality who chaired the panel, "A lot of things can be done to make the system work better for people." 

Among other things, the Panel concluded that the Department of Health and Human Services should set national performance goals "that include ranching at least 50,000 transplants each year by 2026, although a speedup is necessary to achieve national performance goals" and  "hospitals should reduce organ waste and be candid with patients about the option of a less-than-perfect offer. . ." 

See Lauren Neergaard, Panel urges changes to make US organ transplants more fair, EverythingLubbock, February 25, 2021. 

Article: Family Law for the One-Hundred-Year Life

Naomi Cahn, Clare Huntington, and Elizabeth S. Scott recently published an article entitled,  Family Law for the One-Hundred-Year Life, Wills, Trusts, & Estates Law ejournal (2022).

Provided below is the abstract to the Article: 

Family law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form—marriage—and centers the dependency needs of children.

This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms older adults want, nor the support of family care older adults need. Racial and economic inequalities, accumulated across lifetimes, exacerbate these problems. Family law’s failures are particularly pressing in light of a tectonic demographic shift underway in our society: Americans are living longer, with half of all five-year-olds today projected to live past 100. The proportion of older adults as a percentage of our population is also rapidly growing and will soon surpass that of minor children.

This Article argues that family law must adapt to the new old age. At a conceptual level, family law should address the interests and needs of families across the life span, not just those of younger people. And it must reflect three core commitments: centering the dignity and autonomy interests of older persons, addressing structural inequalities, and ensuring that legal mechanisms are efficient and accessible.

This conceptual shift leads to a series of practical reforms to laws governing family formation and family support. The interests of older adults will be better served if they have access to a broader array of family forms and can easily customize these family relationships. We thus propose reforms that decenter marriage as the primary option and make it easier to opt into and out of legal obligations. To support the familial caregiving that is essential to wellbeing, we propose a set of reforms to federal, state, and local laws that would provide economic relief and other support to family caregivers. By offering pluralistic family forms, better support for familial caregiving, and an appreciation of the legal implications of the centrality of relationships in the last third of life, this Article charts a path for family law for the one-hundred-year life.

Article: Revitalizing the Generation-Skipping Transfer Tax

Daniel J. Hemel and Robert Lord recently published an article entitled, Revitalizing the Generation-Skipping Transfer Tax, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

Congress first enacted the generation-skipping transfer (GST) tax in 1976 to protect the estate and gift tax base and to ensure that extraordinary fortunes would bear their fair share of the transfer tax burden. Nearly a half-century into the life of the GST tax, those goals remain unrealized. In recent decades, high-net-worth individuals have succeeded in shifting hundreds of billions of dollars to “dynasty trusts” that—under current law—are poised to escape federal wealth transfer taxation indefinitely. The rise of dynasty trusts reduces the revenue-raising potential of the estate and gift taxes and allows a privileged class to exert vast economic and political power based solely on an accident of birth.

This white paper presents a legislative reform agenda designed to reinvigorate the GST tax, stem the rise of dynasty trusts, and bring hundreds of billions of dollars back within the federal transfer tax base. We highlight three flaws in current law that account for the GST tax’s failure: (1) very high exemption amounts; (2) loopholes that allow high-net-worth taxpayers to stuff GST-exempt trusts with assets worth many multiples of the exemption amount; and (3) the lack of any durational limit on dynasty trusts in states that have abolished the rule against perpetuities. Our three-part reform agenda addresses each of these flaws. First, we propose a reduction in the GST exemption from the current level ($11.7 million) to the 2009 level ($3.5 million). A $3.5 million GST exemption still would be higher, in inflation-adjusted terms, than the exemption amount advocated by the Reagan administration. Second, we propose a set of common-sense loophole closers that would prevent high-net-worth taxpayers from stuffing GST-exempt trusts with assets worth far more than the exemption amount. Third, we propose to limit the maximum duration of a trust’s GST exemption to two generations, with an exception that would allow tax-free distributions to beneficiaries who were alive at the time of the trust’s inception. Our plan would shore up the estate and gift tax base and stem the rise of dynasty trusts while allowing more than 99 percent of American families to pass wealth across multiple generations tax-free.

Mississippi Supreme Court: No Liability For Bank That Reasonably Relied On Apparent Authority Of Attorney Over Conservatorship

In Newsome v. Peoples Bancshares Inc., the Mississippi Supreme Court "affirmed the dismissal of claims against a bank in connection with a conservatorship because substantial evidence supported the findings that an attorney possessed apparent authority to authorize disbursements from the conservatorship account." 

In 2010, Marilyn Newsome was appointed conservator of her daughter, Victoria Newsome, stemming from a medical malpractice claim. The Mississippi chancery court ordered that a portion of Victoria's settlement proceeds be deposited in a separate account for all costs related to constructing a special needs home for Victoria. The chancery court then placed McNulty (the attorney who petitioned to open the conservatorship) in charge of overseeing the construction.

Shortly after, Marilyn went to the Bank and set up the conservatorship account, which she designated herself as the sole authorized signor for the account. For the disbursements, McNulty drafted and filed the order, delivered it to the bank, and the Bank issued the cashier's check pursuant to the order—without Marilyn's signature. Marilyn later brought suit against the McNulty, the Bank, and others. Marilyn and McNulty ultimately settled, but Marilyn pursued her claim against the Bank. 

The Mississippi chancery court found that "the Bank reasonably relied on McNulty's apparent authority to its detriment, and it dismissed Marilyn's claim against the bank.

The elements to determine the existence of apparent authority under Mississippi Law are as followed: 

1. acts or conduct by the principal indicating the agent's authority
2. reasonably relied by a third party upon those acts or conduct; and
3. detrimental change in position by the third party as a result of such reliance

The Mississippi Supreme Court ruled that McNulty "possessed apparent authority under Mississippi law to act on Marilyn's behalf were factually supported." 

See Mississippi Supreme Court: No Liability For Bank That Reasonably Relied On Apparent Authority Of Attorney Over Conservatorship, Probate Stars, February 10, 2022. 

ACTEC Shares Useful Resources

ACTEC Trust and Estate Talk  (podcast series for professionals)

Uniform Electronic Transactions Act and Recent Developments 

Expert lawyers discuss the use of electronic signatures and remote notarization in recent Pennsylvania decisions affecting its legal use in wills and documents.​

ACTEC Family Estate Planning Guide (video series for the general public)

How to Pay for College for a Grandchild or Someone Else  Tax experts offer recommendations to grandparents on how to contribute to a student's education without jeopardizing grants and paying taxes.

Releases and Family Settlement Agreements in Trust & Estate Litigation

Settlement agreements can be beneficial to all parties. Settlement agreements can "help reduce litigation costs, facilitate dispute resolution, [and] guide the parties to a common understanding." 

Although settlement agreements can be beneficial, they do not come without risk. "In Austin Trust Co. v. Houren an agreement contained language in a release that barred the parties from bringing future claims." 

Below is a brief background on the case: 

Following the death of their father, the beneficiaries of an estate realized that their distributions would be delayed until a federal estate tax return had been filed. Seeking to speed up the distribution process, the beneficiaries entered into a family settlement agreement (“FSA”) with all interested parties. The FSA was negotiated by the parties, who acknowledged that they were either represented by counsel, or consciously chose not to be represented by counsel.

The FSA contained a release that, among other things, released all claims for breach of fiduciary duty. The exact language in the agreement releases read as follows: “any and all liability arising from any and all Claims,” including “claims of any form of sole contributory, concurrent, gross, or other negligence, undue influence, duress, breach of fiduciary duty, or other misconduct” and defined “covered activities” to include “(1) the formation, operation, management, or administration of the Estate,…or the Trusts, (2) the distribution of any property or asset of or by…the Estate,…or the Trusts, (3) any actions taken (or not taken) in reliance upon this Agreement or the facts listed in Article I,” (4) “any Claims related to, based upon, or made evident in the Disclosures,” and (5) “any Claims related to, based upon, or made evident in the facts set forth in Article I.”

The FSA was signed on June 10, 2015. In early 2016, the executor of the estate filed the federal estate tax return, which did not list an alleged $37 million debt as either an asset or a liability. Austin Trust sent a demand letter seeking repayment of the alleged debt, which the executor rejected. Austin Trust claimed a breach of fiduciary duty, and the executor asserted that this duty had been released. The trial court agreed, and an appeal followed.

In Austin Co., the court had to determine whether the release agreement was valid before it addressed whether the executor breached a fiduciary duty. The court listed six factors that it considered in deciding whether to affirm the settlement agreement. The court determined that the release was valid and did not have to decide whether a fiduciary duty was breached. 

Though settlement agreements can be beneficial, parties should exercise great caution and diligence before execution a settlement agreement. 

See Releases and Family Settlement Agreements in Trust & Estate Litigation, Freeman Law, 2021. 

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

Article: U.S.–Mexico Cross-Border Estate Planning: Planning Techniques From a U.S. and Mexican Perspective

Michelle Rosenblatt and Abril Rodriguez Esparza recently published an article entitled,  U.S.–Mexico Cross-Border Estate Planning: Planning Techniques From a U.S. and Mexican Perspective, Estate Planning Journal Volume 14, Issue 1 (2022).

Provided below is the abstract to the Article: 

The border between the United States (U.S.) and Mexico is more than 1,900 miles long. Texas and Mexico share 1,251 miles of that border. The two countries share more than just a line on a map; the people of Mexico and the U.S. are bound together by close economic, cultural, and historical relationships that have existed for generations. This Article intends to provide advisors with a general perspective of the cross-border estate planning issues that arise from both the U.S. and Mexican perspectives.