Wills, Trusts & Estates Prof Blog

3 big things your loved ones need you to leave behind before you die

As many plan for what will happen after they die, they focus on family heirlooms and setting up family members for financial success. While these are essential factors in estate planning, three significant steps can be taken to set your family up for success.

No. 1: Clarity on Your Wishes. When your family is grieving, making major decisions is even more challenging. Providing clarity on your personal preferences makes everything smoother for your loved ones.

No. 2: Access to Important Information. Where is the key to the safety deposit box containing your will? What do you wish to happen to your social media accounts? 

No. 3: A Cleaned-Out Home. We all accumulate stuff throughout our lifetime, and forgetting what is packed in the attic is easy. However, sifting through years of clothing, tools, and sentimental objects can be a nightmare for loved ones who will ultimately clean out your home and storage. Identifying what is genuinely sentimental can prevent passing on a giant mess.

For more information see Carol Roth “3 big things your loved ones need you to leave behind before you die” Fox News, August 26, 2023.

Article: Trusts and the Choice of Law: What Role for the Settlor’s Choice and the Place of Administration?

Thomas P. Gallanis (George Mason University, Antonin Scalia Law School) and published an Article titled, Trusts and the Choice of Law: What Role for the Settlor’s Choice and the Place of Administration?, Tulane Law Review, 2023. Provided below is the Abstract:

In modern trust practice, a settlor often seeks to create a trust to be governed by the law of and administered in a jurisdiction that is not the settlor's domicile or residence. The settlor does this by specifying the governing law in the terms of the trust and locating all or part of the trust’s administration in the favorable jurisdiction.

To what extent should a settlor be permitted to use these techniques to select favorable trust law? The question is important because of burgeoning trust practice. Billions of dollars are moving into U.S. states that supply favorable trust law. The question is timely because the American Law Institute is in the process of drafting the Restatement (Third) of Conflict of Laws, and the Uniform Law Commission has appointed a drafting committee to prepare a uniform act on the conflict of laws in trusts and estates.

This Article tackles the central aspects of the question. After analyzing the approaches of the first and second Restatements of Conflict of Laws and of the Uniform Trust Code, the Article proposes a path forward for the new Restatement and the new uniform act. The coordinated drafting of these projects provides an opportunity for the ALI and the ULC to reaffirm the broad latitude - not unlimited, but broad - for a settlor to choose the law governing the trust and, in the absence of such a choice in the terms of the trust, the role of the principal place of administration as a likely indicator of the settlor’s probable intention in many, though not necessarily all, instances.

Ascertaining and honoring the settlor’s intention or probable intention is a core value of U.S. trust law and should be fostered by the corresponding rules on the choice of law.

Where Bob Barker’s Estate and Fortune Are Going Following His Death at 99

Famous game show host Bob Barker died over the weekend at age 99. He was a noted animal rights advocate and often ended The Price is Right episodes by urging viewers to spay and neuter their pets. His publicist announced Tuesday that the assets from Barker’s estate will be split amongst 40 organizations and causes close to his heart.

Nancy Burnet, Barker’s girlfriend, is in charge of his estate and is also currently the president of the United Activists for Animal Rights charity, one of the beneficiaries of Barker’s estate. Other organizations that will receive a portion of Barker’s estate include Donkey Land Rescue, Sea Shepherd Conservation Society, a bird conservatory, and several military nonprofits.

For more information see Charmaine Patterson “Where Bob Barker’s Estate and Fortune Are Going Following His Death at 99” The Messenger, August 29, 2023.

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

Article: Copyright's Capacity Gap

Andrew Gilden (Willamette University College of Law) and Eva E. Subotnik (St. John’s University School of Law) published an Article titled, Copyright’s Capacity Gap, U.C. Davis L. Rev. (forthcoming Dec. 2023). Provided below is the Abstract:

Most areas of law require that individuals meet a certain threshold of capacity before their decisions—e.g., to marry, to enter into a contract, or to execute an estate plan—are given legal effect. Copyright law, by contrast, gives legal effect to creative decisions by granting the decisionmaker many decades of exclusive rights so long as they are a human being and have demonstrated a “creative spark.” This article examines the overlooked consequences of this gap in capacity standards between copyright and other areas of law. It shows that this gap has produced numerous opportunities for vulnerable creators to be exploited by more powerful individuals—often individuals who have been entrusted with their care. These creators can produce valuable property interests through the copyright system, but they may lack the legal ability to make decisions about whether, when, where, and how to commercially exploit those interests. Copyright law expresses the important message that creative labor by legally incapacitated individuals is important and valuable, but it largely leaves these individuals at the mercy of a legal system that is often highly dismissive of their dignity and autonomy. This article surveys contemporary and historical examples of copyright’s capacity gap, and it examines potential ways of closing this gap for the benefit of vulnerable creators.

Q&A: What is a Conservatorship and Why Was Michael Oher Under One?

NFL player Michael Oher found himself in the spotlight after the 2009 movie “The Blind Side,” depicting his life of supposed adoption out of poverty into an affluent family. Earlier this month, Oher shocked fans after alleging that the film’s premise is a lie and that the Tuohy family never adopted him. 

According to Oher’s petition, Sean and Leigh Anne Tuohy never adopted him but had him sign an agreement to make the couple his conservators. This allowed them to make business deals in his name, which enabled them to make millions in royalties from the movie based on his life.

This is not the first time a Conservatorship has made headlines. When a judge suspended her conservatorship, Britney Spears famously regained control of her life and finances. And while it is a buzzy topic, many need help understanding the intricacies of the legal mechanism. Professor Naomi Cahn of University of Virginia’s School of Law sat down with UVA Today to answer questions about conservatorships.

For more information see Alice Berry “Q&A: What is a Conservatorship and Why Was Michael Oher Under One?” UVA Today, August 22, 2023.

Bob Barker, unflappable 'Price is Right' emcee dies at 99

Bob Barker, the monumental television emcee who spent half a century on American television, died at age 99. Barker is known for hosting “The Price is Right” for 35 years, along with many stints hosting holiday parades, beauty pageants, and the game show “Truth or Consequences.”

Barker was also an avid contributor to animal-related charities and gained national attention for his animal rights activism. In 1988, he severed ties with the Miss USA and Miss Universe pageants when organizers refused to remove fur coats as prizes. 

After serving in the Navy in World War II, Barker received an economics degree from Drury University in Missouri, where he launched his radio career. His success took him to Los Angeles, where he became the host of “Truth or Consequences” before hosting “The Price is Right,” where he won 20 Daytime Emmy awards and received a Lifetime Achievement Emmy.

Barker is survived by his longtime companion, Nancy Burnet, and his half-brother.

For more information see Adam Bernstein and Robin Webb “Bob Barker, unflappable ‘Price is Right’ emcee, dies at 99” The Washington Post, August 26, 2023.

Article: Beneficiaries as Trustees: Here's the State of Things

Richard C. Ausness published an Article titled, Beneficiaries as Trustees: Here’s the State of Things, Quinnipiac Probate Law Journal Vol. 36, 2023. Provided below is the introduction:

It is not unusual for settlors to appoint beneficiaries as trustees. However, there are serious risks with this practice. This Article will examine some of these risks and suggest ways to reduce them. Part II describes why settlors appoint beneficiaries as trustees. Part III identifies some of the cases that have arisen where other trust beneficiaries have charged trustee beneficiaries with breach of fiduciary duties such as the duty of loyalty, impartiality, and prudence, as well as the duty to inform and report. Part IV explores a number of cases which have involved common trust arrangements such as revocable inter vivos trusts, discretionary trusts, support trusts, and marital trusts. Part V describes various drafting options and other measures that might reduce the chances of litigation by other beneficiaries. 

Drama Erupts In Carol Burnett’s Guardianship Battle Over Addict Daughter’s Son

As family drama unfolded, legendary comedian Carol Burnett was in court earlier this year. Burnett and her husband, Brian Miller, filed a petition in 2022 to be appointed temporary guardians of their 14-year-old grandson as their daughter Erin Hamilton suffers from addiction issues.

In the filing, Burnett revealed that Erin had threatened to take her own life and was placed on a 5150 hold by police. Burnett and Miller filed the petition to provide their grandson with a more stable, predictable, and healthy environment. The couple was granted temporary guardianship of their grandson; however, they later asked the court to allow Jodi Pais Montgomery to fill the role, which was granted. Montgomery previously worked as Britney Spears's co-conservator.

For more information see Aaron Johnson “Drama Erupts In Carol Burnett’s Guardianship Battle Over Addict Daughter’s Son” Radar Online, April 12, 2023.

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

Article: All Right, All Right, All REIT: Complexities and Considerations of Real Estate Investment Trusts

Xenia J.L. Garofalo and Hasnain Valika published an Article titled, All Right, All Right, All REIT: Complexities and Considerations of Real Estate Investment Trusts, ABA Probate & Property (July/August 2023). Provided below is the introduction:

Real estate remains a popular investment strategy for the masses. There are many ways to invest in real estate. A real estate investment trust, or REIT, is a preferred investment vehicle of choice because of its tax-efficient nature and general simplicity for the “common” investor (e.g., a noninstitutional, individual investor who invests her own capital). Buying shares in a REIT is as simple as buying shares in any major publicly traded corporation. But what exactly are REITs, and given their popularity, why aren’t they more prevalent?

A REIT allows investors to pool capital to participate in real estate ownership—think of it as a mutual fund for real estate. Investors receive tax advantages that are more commonly associated with larger and more sophisticated investors and businesses, yet also benefit from professional management of a diversified portfolio of real estate assets. But setting up a REIT is not without challenges. A REIT must meet various organizational, operational, income, and asset requirements. Taxation as a REIT entitles the entity to a dividends-paid deduction so that a REIT may not be required to pay any corporate-level income tax, rather than the normal double taxation applicable to “normal” US corporations. Although shareholders of a REIT must pay tax on the dividend income received (subject to certain exceptions), this results in a single level of tax payable by shareholders. Given these advantages, REITs are highly regulated, with their asset ownership, income, and activities scrutinized closely. Unsurprisingly, the administrative burden of maintaining REIT compliance can be costly.

This article aims to provide an overview of the wonderful world of REITs, including organizational requirements, distribution requirements, taxation, and certain nuanced complexities facing REITs, while also briefly addressing notable recently proposed rule changes. This article discusses certain US federal income tax considerations applicable to REITs but does not comprehensively discuss all tax considerations; for example, state and local taxes, indirect taxes, and payroll taxes are not covered.

Article: Designing Long-Term Trusts to Hold Art and Collectibles

Michael Duffy published an Article titled, Designing Long-Term Trusts to Hold Art and Collectibles, ABA Probate & Property (July/August 2023). Provided below is the introduction:

Modern estate plans in the United States, especially among the very wealthy, often involve the creation of long-term irrevocable trusts to hold assets for current and future beneficiaries. Among their many benefits, such trusts can keep trust assets out of the beneficiaries’ taxable estates and also protect them from their judgment creditors.

In the United States, wealth transfer planning using trusts has become so ubiquitous among wealthy families that heirs face the reality of not inheriting assets directly anymore, but rather inheriting trust structures that hold assets for them. Occasionally, such trusts are funded with tangible personal property like fine art and collectibles. These assets present unique challenges for trustees to manage, especially in light of a trustee’s duties to exercise prudence and loyalty.

This article will highlight key administrative provisions that might be appropriate to include when designing irrevocable trusts to hold and manage art and collectibles over multiple generations.