Monday, February 18, 2019
Reid K. Weisbord & David Horton recently published an Article entitled, Inheritance Forgery, Wills, Trusts, & Estates Law (2019). Provided below is an abstract of the Article.
Many venerable norms in inheritance law were designed to prevent forgery. Most prominently, since 1837, the Wills Act has required testators to express their last wishes in a signed and witnessed writing. Likewise, the court-supervised probate process helped ensure that a donative instrument was genuine and that assets passed to their rightful owners. But in the mid-twentieth century, concern about forgery waned. Based in part on the perception that counterfeit estate plans are rare, several states relaxed the Wills Act and authorized new formalities for notarized and even digital wills. In addition, lawmakers encouraged owners to bypass probate altogether by transmitting wealth through devices such as life insurance and transfer-on-death deeds.
This Article offers a fresh look at inheritance-related forgery. Cutting against the conventional wisdom, it discovers that counterfeit donative instruments are a serious problem. Using reported cases, empirical research, grand jury investigations, and media stories, it reveals that courts routinely adjudicate credible claims that wills, deeds, and life insurance beneficiary designations are illegitimate. The Article then argues that the persistence of inheritance-related forgeries casts doubt on the wisdom of some recent innovations, including statutes that permit notarized and electronic wills. The Article also challenges well-established inheritance law norms, including the litigation presumptions in will forgery contests, the wide-spread practice of rubber-stamping deeds, and the delegation of responsibility for authenticating a nonprobate transfer to private companies. Finally, the Article outlines reforms to modernize succession while remaining sensitive to the risks of forgery.
Friday, February 15, 2019
Karen S Gerstner recently published an Article entitled, The Killing of Community Property, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 1 (2018). Provided below is the first paragraph of the introduction of the Article.
The primary purpose of this article is to educate individuals who are unfamiliar with community property law and to explain why certain actions taken by Congress, federal courts, and the Internal Revenue Service (the "IRS") have amounted to the killing of community property. A secondary purpose of this article is to encourage Congress, and particular the members of Congress from community property states, to consider passing legislation (i) to amend the Employee Retirement Income Security Act of 1974 ("ERISA") to recognize the community property ownership interest of the spouses of employees and retirees who have accumulated qualified employee benefit plans ("qualified plans") while living in a community property state and to allow those spouses to dispose of their ownership interest in those qualified plans if their spouses die prior to the employee or retiree, to the maximum extent possible in view of both federal administrative goals and state law property ownership goals, and (ii) to clarify or modify section 408(g) of the Internal Revenue Code so that it does not abrogate the community property ownership of Individual Retirement Accounts ("IRAs") accumulated by married persons living in community property states, except to the extend absolutely necessary to achieve federal income tax goals.
Thursday, February 14, 2019
Article on Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology
Alexandra M. Jones recently published a Comment entitled, Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 161 (2018). Provided below is an abstract of the Comment.
Fresh out of law school, many young lawyers are eager to start their legal careers and just right into the courtroom. While they still need some practical training first, many young lawyers accept jobs that deal solely with discovery or intake until they can slowly make their way up the legal food chain. With the advancement of technology, programs like expert systems and artificial technology are taking over some of these first-year associate jobs because they are less expensive and more efficient. As a result, law firms are not hiring as many recent graduates. Eventually, technical jobs could replace the classical notion of attorneys. However, the growing concern that technology is taking over jobs in the legal field is not the only problem caused by artificial intelligence. Issues arise with how much impact technology has in transactional fields, such as estate planning, and the future role that artificial intelligence will play. An even greater issue arises with who is liable for artificial intelligence mistakes when there is very little in terms of legislation.
Tech industry experts are in stark disagreement about the means of regulating artificial intelligence. Stephen Hawking and Elon Musk have warned the world of dangers of advancing artificial intelligence and that governments need to start creating laws and regulations. Experts such as Bill Gates and Mark Zuckerberg believe that creating new regulation is not realistic because the technology has not fully developed. Some critics argue that researchers are already regulated enough, and adding more regulation will stifle innovation. This comment focuses the issue on a much smaller scale by suggesting that lawyers, law firms, and other entities that utilize artificial intelligence, or its branch of expert systems, in their estate planning practice are consistent with ethical rules of conduct for the system. Additionally, this comment will expand upon the meaning of the unauthorized practice of law as it relates to artificial intelligence.
This comment proceeds in five parts. Part I introduces the concept of artificial intelligence through practical and theoretical examples and definitions. Part II discusses the impact that artificial intelligence has on expansion. Part III considers the effect artificial intelligence have on estate planning laws. Part IV discusses the parties liable for artificial intelligence. Part V suggests methods of ensuring compliance with ethical standards to estate planning practitioners as technology becomes more absorbed in transactional fields.
Tuesday, February 12, 2019
The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities' eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations' administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors' stock holdings, the disposition of unused tax credits at the taxpayer's death, and fiduciary qualification without surety. The Supreme Court of Virginia handed down eight recent decisions addressing the presumption of undue influence, requirements for estoppel and preclusion, the signature requirement for a proper codicil, trust governing law and interpretation, the fiduciary duties of agents, the jurisdiction of Commissioners of Accounts, and appraisal requirements for state tax credits.
Monday, February 11, 2019
When death arrives, must the estate attempt to channel the decedent's skills and complete any remaining contractual duties? The outcome does not always hinge solely on whether the remaining duties are personal services. Instead, the intent of the parties is paramount. Court disagree whether boilerplate, such as clauses that the contract is "binding on successors or assigns," or is "binding on heirs, executors, and administrators," reflects the intent of the parties and cause personal service contracts to survive a party's death.
Attorneys may confront this issue when drafting contracts, reviewing contracts in connection with estate planning advising the personal representative, dealing with the surviving contract party, or seeking guidance from the probate court on the estate's responsibilities. Parties have litigated an estate's duty to complete building, farming, leasing, and many other types of contracts. If a personal representative caused an estate to complete a decedent's contract when the estate had no obligation to do so, and carried on the decedent's business without proper authorization, the personal representative could incur personal liability for any losses. In re Burke's Estate, 244 P. 340, 341 (Cal. 1926); see generally Bogart's Trusts and Trustee § 571 (regarding the continuation of a decedent's business).
See William A. Drennan, Can Boilerplate Raise Contracts of the Dead from the Grave, Property & Probate Magazine, Vol. 33, No. 1, January/February 2019.
Sunday, February 10, 2019
Joseph Campbell recently published an Article entitled, The Consequences of Rebutting a Presumption of Advancement, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
Nelson v Nelson contains a dictum, adopting a statement of Scott, that when a presumption of advancement is rebutted the outcome is a resulting trust. Scott puts that statement on two bases. The first is that as a matter of 17th century legal history, rebuttal of a presumption of advancement led to a resulting trust. The second is that some North American cases support it. This article contends that Scott’s statement is true sometimes but not always. His proposition of legal history is not supported by the cases on which he bases it, and the North American cases on which he relies are not persuasive precedents for Australian law. It contends that sometimes when rebuttal of a presumption of advancement occurs the doctrine that a statute cannot be used as an instrument of fraud becomes operative, leading to a constructive trust. Sometimes rebuttal of the presumption leads to an express trust. There are other possibilities also. Sometimes equitable doctrines other than those concerning trusts decide the outcome.
Saturday, February 9, 2019
Article on How to Avoid Three Personal Property Misconceptions that Could be Losing Your Clients Money
Let’s be honest—no one likes going through a closet—not even her own closet. How long have you had a pile for donation sitting in the corner without touching it? Often, we resist acting because we fear it’s not worth it.
Now, imagine you’re walking into a stranger’s home—you’re likely walking into closets filled with clothing, personal keepsakes, and too many shoes. You ask yourself again, “Is this worth the time it would take to sell?” More often than not the answer now is yes. Consumers are more tech-savvy than ever before, and quality goods—both luxury and vintage—have grown in popularity and value. Your estate’s closet has just become more valuable per square inch than just about any other part of the house.
This shift has left advisors confused about where to begin and how to understand the value of items in an estate’s closet and the luxury items that decorate a home. Below are common misconceptions you want to avoid when settling an estate and tips on how to ensure you’re getting your client maximum value.
See Karin Dillie, How to Avoid Three Personal Property Misconceptions that Could be Losing Your Clients Money, Probate & Property Magazine, Vol. 33, No. 1, January/February, 2019.
Thursday, February 7, 2019
Lightning-paced advancements in technology are responsible for many wonderful accomplishments that span across most industries and have contributed to making day-to-day life and work easier and more streamlined. Despite such modern-day developments, technology can still cause major problems, and unexpected issues can occur in ways that were unfathomable less than 20 years ago. The breadth of general knowledge, regardless of specialty, that attorneys must possess to represent their clients is constantly expanding. One key area is how cybersecurity affects their practice and their client's information. Attorneys need to be prepared for phone calls from their clients on what to do if they are victims of a cybersecurity attack and how to take preventive measures to minimize their risk of being attacked. Attorneys also should be able to address questions from clients on what measures their firms are taking to ensure protection of their clients' information. Trusts and estates attorneys need to be especially proactive in addressing cybersecurity measures with their clients, in both estate planning and estate administration. Identity theft is one key issue, and more and more people have digitized assets in need of tracking and protection from nefarious criminals.
See Ross E. Bruch, Probate Technology, Probate & Property Magazine, Vol. 32, No. 8, November/December 2018.
Wednesday, February 6, 2019
It is a universally acknowledged that a wealthy client in possession of a good beach house must be in want of a Qualified Personal Residence Trust (QPRT). But QPRTs are not right for everyone - and even when they do make sense at the outset, family, financial, tax, and other circumstances can change, lessening the effectiveness of the QPRT as a wealth transfer tool making it a detriment to the family. This article will outline briefly the nuts and bolts of the QPRT construction and the substantial estate planning benefits that can be reaped from a healthy QPRT. We will then describe common (and uncommon) scenarios when a QPRT can lose effectiveness and illustrate methods to repair any damage and shore up a positive outcome.
See Michael H. Barker, Adam M. Damerow, Caitlin N. Horne, & Lauren A. Jenkins, Home Repair: A Handy Lawyer's Guide to Fixing a Damaged QPRT, Probate & Property Magazine, Vol. 33, No. 1, January/February, 2019.
Tuesday, February 5, 2019
Steven Cunningham recently published an Article entitled, Trusts & Estates, 68 Syracuse L. Rev. 1063-1085 (2018). Provided below is an introduction of the Article.
This article covers notable regulatory, statutory, and case law developments related to trusts and estates for the Survey period of July 1, 2016 to June 30, 2017.
Part I of this Article discusses changes that occurred at the federal level. This discussion will summarize noteworthy administrative activity and case law from the United States Tax Court, including the proposed regulations under Internal Revenue Code § 2704 and the United States Tax Court decisions in Estate of Powell v. Commissioner and Estate of Heller v. Commissioner. Part II surveys the trust and estate developments specifically in New York, including new legislation, regulations, and case law.
As a threshold matter, it is worth noting the federal and New York exemption amounts applicable in the Survey period. At the federal level, the amount of combined gross assets and prior taxable gifts needed to trigger an estate tax rose from $5,450,000 in 2016 to $5,490,000 in 2017. The federal annual gift tax exclusion remained at $14,000 throughout the entire Survey period. The threshold for gifts to a noncitizen spouse not includable in a taxpayer’s gifts increased from $148,000 in 2016 to $149,000 in 2017. Meanwhile, New York continues to adhere to a schedule where equalization between the state exemption amount and the federal amount will begin on January 1, 2019. Accordingly, the basic exclusion amount in New York rose from $4,187,500 (for decedents who died on or after April 1, 2016 and on or before March 31, 2017) to $5,250,000 (for decedents who died on or after April 1, 2017 and on or before December 31, 2018).