Thursday, April 9, 2020
David Horton and Reid K. Weisbord recently published an Article entitled, COVID-19 and Formal Wills, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.
Most Americans do not have a will, but as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, probate law makes it difficult to create a will during this crisis. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written on paper, signed by the testator, and also witnessed by two people who were present at the same time. Thus, the Wills Act’s insistence that parties physically occupy the same space poses an unforeseen barrier to testation during a time of widespread quarantine.
Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills.
This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize its requirements. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores three ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, and passing electronic will legislation.
Friday, April 3, 2020
Lionel Smith recently published an Article entitled, Sources of Private Rights, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
Much has been written in both the common law and the civil law about the ‘sources’ of rights or of obligations. Jurists have attempted to classify and organize these sources as a way of shedding analytical light on the different kinds of rights that exist in private law. Building on recent scholarship in Quebec civil law, the author argues that the idea of the source of a private right is deeply ambiguous, and that the failure to see this has bedevilled attempts to classify the sources of rights. Just as every effect has multiple causes, every right has multiple sources. The author also argues that a similar ambiguity inhabits the common law’s idea of a ‘cause of action’. Distinguishing between the different senses of the ideas of ‘source’ and ‘cause of action’ helps to clarify a number of debates in private law theory.
Tuesday, March 31, 2020
Melissa Clark recently published an Article entitled, Avoiding Grave Consequences: Electronic Wills as a Solution in Texas, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
There is a vast gap in Texas between testate and intestate individuals. Admitting electronic wills to probate may reduce that gap. This article analyzes the current electronic will statutes in effect and the newly created Uniform Electronic Will Act to propose a statute for Texas designed to further testator disposition of property, ensure compliance with will formalities, limit fraud, and prepare Texas for technological advancements through electronic wills. Without a statute, Texas will face admitting electronic wills executed in other states, through the savings statute in the Estates Code, without control or regulations in place.
Sunday, March 29, 2020
Kate Falconer recently published an Article entitled, Reconceptualising the Law of the Dead by Expanding the Interests of the Living, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
Despite its name, the Australian law of the dead — a term used here to refer to the common law governing the treatment and disposal of the body of a deceased person — has extraordinarily little to do with the recently deceased. Instead, it is traditionally (and narrowly) conceptualised from the perspective of the still-living, with post-death disputes — such as those relating to posthumous interferences with the corpse — being decided by reference to the person who holds the right to possession of the body of the deceased. In contrast, whilst her physical shell continues to play a role at law, from the moment of death onwards the deceased as a person is denied legal existence in the form of rights, interests, or duties. This paper challenges this traditional formulation of the law of the dead by bringing the interests of the deceased to the forefront. It does this by arguing that the law of the dead should be reconceptualised so that the holder of the right to possession of the body of a particular deceased person is considered to experience an expansion of their own personal set of interests; this expansion being equivalent to those interests held by the deceased in relation to her body during her life and continuing into a 'posthumous space' after her death.
Thursday, March 26, 2020
John A. Miller and Jeffrey A. Maine recently published an Article entitled, Wealth Transfer Tax Planning after the Tax Cuts and Jobs Act, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
On December 17, 2017, Congress passed the Tax Cuts and Jobs Act (TCJA). Among its many impacts, the TCJA increased the inflation adjusted estate tax basic exclusion amount to $10,000,000 on a temporary basis. This has dramatic implications for many existing and future estate plans, including a major crossover impact on income tax planning. In this article we explain the operation of the federal wealth transfer taxes (the estate tax, the gift tax and the generation skipping transfer tax) in the wake of the TCJA and of the newly issued regulations interpreting the TCJA changes. We also explain the basic tax planning techniques for wealth transmission. The overall design of this article is to bring the reader into the current wealth transfer tax planning picture while providing references to more detailed treatments of particular topics within this broad field.
Wednesday, March 25, 2020
Mary Louise Fellows and E. Gary Spitko recently published an Article entitled, How Should Non-Probate Transfers Matter in Intestacy?, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.
As American family structures have become more heterogeneous, status-based intestacy statutes have become less suited to promoting donative intent. Indeed, numerous scholars of wealth transfer law have noted the critical need for intestacy law reform to address the needs of decedents whose donative intent does not comport with traditional family norms. We propose addressing this concern by looking to intestate decedents’ non-probate transfers, such as a revocable trust, life insurance policy, 401(k) account, brokerage account, or joint tenancy with right of survivorship deed. In 2010, we, along with a co-author, published the first study to consider the relationship between donative intent with respect to the probate estate and donative intent as expressed in non-probate transfers. That study utilized a factorial research design to assess public attitudes and offered support for our new heir hypothesis, that, depending on the identity of the non-probate transfer beneficiary and the identity of the existing heir, a decedent would want a non-probate transfer beneficiary who is not otherwise an heir to be treated as an heir. The instant two-part study of estate planners produces additional knowledge about how best to integrate non-probate transfers into intestacy statutes. In the first part of our study, we conducted a paper survey of forty-five estate planners. The responses to this survey greatly influenced the second part of our study in which we conducted in-person or telephone interviews with nineteen estate planners. The findings reported in this study provide the framework for statutory reform. This study demonstrates that the new heir reform increases the likelihood of promoting intestates’ donative intent in a growing number of twenty-first century familial situations.
Friday, March 20, 2020
Article on Tearing Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the Inter Vivos/Testamentary Divide
Danaya C. Wright and Stephanie Emrick recently posted an Article entitled, Tearing Down the Wall: How Transfer-on-Death Real-Estate Deeds Challenge the Inter Vivos/Testamentary Divide, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract to the Article.
This Article will examine one of the most recent will substitutes, the transfer-on-death (“TOD”) real-estate deed. Nearly half of the states have recognized, through common-law forms or legislation, a mechanism to allow for the transfer of real property on death without using a will, without following the will formalities, and without necessitating probate. This new tool in the estate planner’s toolbox is invaluable: revocable trusts have proven too expensive for decedents of modest means, and wills continue to require formalities that can easily frustrate non-lawyer-drafted estate documents. But the variety of TOD deed rules and mechanisms that the different states have adopted has led to disparity and uncertainty in form and outcome, resulting in litigation and frustration of decedent’s intent.
We believe this uncertainty and frustration will continue as even more states adopt the Uniform Real Property Transfer on Death Act (“URPTODA”), which purports to stabilize the law and facilitate testamentary intent. States grappling with this new form interpose significant differences, and lawyers and judges are not all on the same page as to the consequences. One source of confusion is the URPTODA’s provision that TOD deeds are non-testamentary and, at the same time, the Uniform Act provides that the property rights do not transfer until death.
Although it is one thing to declare that TOD deeds are non-testamentary even though property rights don’t transfer until death—which in itself goes against centuries of formal legal rules—it is quite another to get all the other legal consequences to fall into place accordingly. For instance, would a state’s anti-lapse statute apply to save a beneficiary designation if the deed is deemed non-testamentary, even though the intent is to have the real property transfer upon death?
In our opinion, the TOD deed pushes the juridical binary of inter vivos and testamentary transfers beyond coherence and rationality. The law of will substitutes has already undermined the rationality of maintaining the divide, and in this Article, we will argue that the time has finally come to reject the division between inter vivos and testamentary transfers and seek a rational and holistic set of tools and formalities to gain the benefits of probate avoidance that will substitutes provide with the ease of control and full revocability of wills. Elevating form over functionality, although a characteristic of the common law, inevitably disserves the interests of those who cannot afford lawyers who can easily draft around the sometimes-arcane distinctions between testamentary and inter vivos transfers to gain the benefits of each while avoiding the burdens.
Wednesday, March 18, 2020
In a press conference yesterday, Treasury Secretary Steven Mnuchin announced that the IRS will postpone the April 15th tax payment deadline by 90 days for individuals who owe $1 million or less and corporations that owe $10 million or less.
Note that this extension is for the payment of taxes owed—not for filing your return. The April 15th filing deadline remains unchanged as of now. As always, taxpayers have the option of filing a Form 4868 automatic 6-month extension for filing their 2019 Form 1040, but taxes owed must be paid in 90 days to avoid interest and penalty assessments.
There is early speculation that deadlines for estimated quarterly tax payments that self-employed workers and businesses pay the IRS throughout the year will also be extended.
Stay tuned for more updates from The Blum Firm. Our best wishes to all to be safe and healthy.
Tuesday, March 17, 2020
Bruce A. McGovern, Cassady V. Brewer, & James M. Delaney recently published an Article entitled, Recent Developments in Federal Income Taxation: The Year 2019, Tax Law: Tax Law & Policy eJournal (2020). Provided below is the abstract to the Article.
This article summarizes and provides context to understand the most important developments in federal income taxation for the year 2019. The items discussed primarily consist of the following: (i) significant amendments to the Internal Revenue Code; (ii) important judicial decisions; and (iii) noteworthy administrative rulings and regulations promulgated by the Service and the Treasury Department. This article primarily focuses on subjects of broad general interest – tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties. This article generally does not address items relating to federal estate and gift taxation, income taxation of trusts and estates, qualified pension and profit-sharing plans, international taxation, or specialized industries such as banking, insurance, and financial services.
Sunday, March 15, 2020
Reid K Weisbord recently published an Article entitled, Postmortem Defamation in a Society Without Truth for the Living, Wills, Trusts, & Estates Law eJournal (2019).
Defamation law limits the private action for reputational injury to plaintiffs who are alive at the time of disparagement. In a novel reform proposal, Professor Don Herzog argues that we should extend defamation liability to disparaging statements about dead people. This Essay evaluates Herzog’s theory of postmortem reputational harm by focusing mainly on two counterarguments not addressed in his proposal: The first is that, since the election of President Trump, the modern political discourse has become so detached from the truth and callous about death that it is difficult to envision a moral obligation to protect postmortem reputational interests. The second distinguishes the consequentialist doctrine of testamentary intent from Herzog’s moral theory of postmortem defamation. This Review Essay concludes that, while society should indeed strive to recognize a moral obligation to protect decedents against reputational harm, we cannot do so without first restoring our commitments to truth-telling and respecting the solemnity of death.