Wills, Trusts & Estates Prof Blog

Book on The Oxford Handbook of Fiduciary Law

Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff recently edited a book entitled, The Oxford Handbook of Fiduciary Law, (1st ed. 2019). Provided below is a summary of the book.

• Examines how fiduciary principles apply in eighteen different fields of law, including agency law, trust law, corporate law, pension law, bankruptcy law, family law, employment law, legal representation, health care, and international law
• Provides clear guidance on essential concepts and principles of fiduciary law, including the defining characteristics of fiduciary relationships, the duty of loyalty, the duty of care, mandatory and default rules, and fiduciary remedies
• Offers new historical, comparative, and interdisciplinary perspectives on fiduciary law
• Includes original essays from leading fiduciary law scholars exploring perennial challenges and future directions for the field
• No book currently available provides an overview of fiduciary law that is as rich or comprehensive as this volume

For more information about the material within the book, see here.

Special thanks to Garrett A. Heckman (Palm Springs, California Attorney) for bringing this article to my attention.

Article on Dr. Jekyll & Mr. Holmes: A Tale of Two Testaments

Stephen R. Alton recently published an Article entitled, Dr. Jekyll & Mr. Holmes: A Tale of Two Testaments, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. The first of these testaments is the final will of Dr. Henry Jekyll, in Robert Louis Stevenson’s The Strange Case of Dr. Jekyll & Mr. Hyde; this will bequeaths the doctor’s estate to his friend and attorney, Gabriel John Utterson. The second testament is the putative will of Jonas Oldacre, in Arthur Conan Doyle’s The Adventure of the Norwood Builder; this will bequeaths Oldacre’s estate to the young solicitor who drafted the will, John Hector McFarlane. Taken together, these two testaments raise the issues of the testator’s capacity and intent to make the will, undue influence and bequests to attorneys (notably to the drafting attorney), due execution of the will, and the effect of the beneficiary’s possible murder of the testator. A comparison of these two fictional Victorian-era wills remains relevant today because the legal issues that these two testaments raised in 19th century England are still very much present in 21st century America.

Putting Fido in the Will Not Just for Super-Rich

It is becoming more commonplace for people to consider their pets as part of their family, and as such more people are also including their dog, cat, or other furry loved on in their estate plans. And it is not just the wealthy, though those are the ones that garner the most attention and media. 

“Setting up trusts for pets, or putting their care in the will, is becoming more popular as people become more aware that it is possible,” says Jason Smolen, an estate attorney at SmolenPlevy in Vienna, Virginia. There are a few states that have enacted laws, such as Virginia and Maryland, that dictate how pet trusts are to be set up. With such a trust, the owner can outline how he or she would like the pet taken care of, how often it should be groomed, how the pet trust money should be spent, and any other special needs the pet might have, Smolen said.

Pet trusts can be set up for the lifespan of the animal, or in the case of longer-living pets such as parrots, some states cap them at 21 years. Owners should meet with the designated caretaker and trustees, and update their will whenever they unfortunately lose a pet or possibly gain one. Without a will or trust, pets in most states are treated like property, Smolen explained.

For more information, see here.

See Karen DeMasters, Putting Fido in the Will Not Just for Super-Rich, Financial Advisor, March 14, 2019.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

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

Book on Estate Planning for the Muslim Client

Yaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client, (1st ed. 2019). Provided below is a summary of the book.

Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.

Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.

Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:

• • Meeting the Muslim client and understanding the pillars of their faith
  • Ethical, legal, and public policy issues
  • Estate planning during life
  • Planning for incapacity and death
  • Disposition of property at death
  • Drafting estate planning documents, with sample forms
  • Planning for individuals and assets abroad, and more

McGovern & Hirsch California Probate Code Annotated, 2019 ed. Released

McGovern & Hirsch California Probate Code Annotated provides 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

Book on Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors, Second Edition

Ramsay H. Slugg recently published a Book entitled, Handbook of Practical Planning for Artists, Art Collectors, and Their Advisors, (2d ed. 2019). Provided below is a summary of the book.

Art is an asset of passion, as author Ramsay H. Slugg states, yet it also has unique and important financial characteristics. This makes art possibly the most difficult asset to incorporate into an overall estate and financial plan. Handbook of Practical Planning for Artists, Art Collectors and Their Advisors addresses two essential elements of art ownership: planning for the ultimate disposition of the art, including how to address the wealth represented by the art into any estate and financial planning, and also the practical considerations for collectors as they actively collect and plan for the art’s eventual disposition.

After a brief discussion of the art market generally, the book introduces and explains a client-focused process I use when advising art collectors. This process includes explaining both the income, estate and gift tax consequences of various options, as well as the important and often emotional non-tax considerations of collecting and disposing of art. The book also discusses the role and importance of other advisors who are involved in these decisions, including art advisors, risk management professionals and appraisers. To better illustrate the material, the book features enlightening case studies.

Book on Effective Use of IRA Assets in Estate Planning

Seymour Goldberg published a Book entitled Effective Use of IRA Assets in Estate Planning (includes IRS Compliance Issues and Asset Protection Planning) (2018). Provided below is an excerpt from the book. 

Advantages of the trust as a beneficiary:

1. If the IRA death benefits are payable directly to a designated beneficiary, then the death benefits may be accelerated at any time by the designated beneficiary.

2. If the IRA death benefits are significant and payable to the trust, then a knowledgeable trustee may take advantage of the extended payout period if the IRS trust documentation requirements are timely satisfied with the IRA institution. The IRS trust documentation requirements must be satisfied by October 31st of the calendar year following the IRA owner’s year of death.

3. A mature trustee will control the investments while the assets are in the IRA.

4. If IRA death benefits are payable to a trust they may be protected from the creditors of the designated beneficiary under state law or in a divorce proceeding.

5. If IRA death benefits are payable to a spendthrift trust they generally should be protected if the designated beneficiary declares bankruptcy provided that the spendthrift trust is recognized under state law. Most jurisdictions recognize spendthrift trusts.

6. If IRA death benefits are payable to a trust for the benefit of a minor, it avoids the jurisdiction of the probate court or a similar court that has jurisdiction over the minor’s assets.

7. If IRA death benefits are payable directly to minor, then the probate court or a similar court is involved. The probate court or a similar court may not go along with an extended payout period of the IRA distributions.

8. A client should consider making provisions in his/her will and/or other legal documents that exonerate nonprobate assets such an IRA from the payment of the IRA’s share of the estate tax liability provided that there are sufficient other assets and that this provision is consistent with the client’s estate plan.

Exonerating the IRA and other retirement assets from any estate tax liability will permit more tax deferred growth of the IRA and other retirement assets and the tax exempt growth of Roth IRAs. However, this exoneration approach is at the expense of other beneficiaries of the estate.

9. A trust for adult child may be necessary if the adult child cannot handle money or would not otherwise reimburse the executor of the estate for the estate tax liability attributable to the IRA on a voluntary basis.

10. The life expectancy of child or grandchild will generally result in a greater deferral of income then if the surviving spouse was the designated beneficiary of the IRA.

11. The children or grandchildren benefit from growth of IRA instead of the surviving spouse. This should save a considerable amount of estate taxes on the subsequent death of the spouse.

12. The trust may be used as an exemption trust for estate tax purposes.

13. As a result of the Tax Cuts and Jobs Act effective January 1, 2018, significant income tax savings may be available if IRA assets are payable to trusts for the benefit of children or grandchildren.

14. As a result of the Tax Cuts and Jobs Act effective January 1, 2018 significant estate tax savings may be available if the IRA assets are payable to trusts for the benefit of children or grandchildren.

Book on The Heirs: A Novel

Susan Rieger recently published a book entitled The Heirs: A Novel (2018). Provided below is a synopsis of the book.

Six months after Rupert Falkes dies, leaving a grieving widow and five adult sons, an unknown woman sues his estate, claiming she had two sons by him. The Falkes brothers are pitched into turmoil, at once missing their father and feeling betrayed by him. In disconcerting contrast, their mother, Eleanor, is cool and calm, showing preternatural composure.

Eleanor and Rupert had made an admirable life together -- Eleanor with her sly wit and generosity, Rupert with his ambition and English charm -- and they were proud of their handsome, talented sons: Harry, a brash law professor; Will, a savvy Hollywood agent; Sam, an astute doctor and scientific researcher; Jack, a jazz trumpet prodigy; Tom, a public-spirited federal prosecutor. The brothers see their identity and success as inextricably tied to family loyalty – a loyalty they always believed their father shared. Struggling to reclaim their identity, the brothers find Eleanor’s sympathy toward the woman and her sons confounding. Widowhood has let her cast off the rigid propriety of her stifling upbringing, and the brothers begin to question whether they knew either of their parents at all.

A riveting portrait of a family, told with compassion, insight, and wit, The Heirs wrestles with the tangled nature of inheritance and legacy for one unforgettable, patrician New York family. Moving seamlessly through a constellation of rich, arresting voices, The Heirs is a tale out Edith Wharton for the 21st century.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

Book on International Estate Planning: A Reference Guide

Barbara Hauser & Melissa Langa recently published a book entitled, International Estate Planning: A Reference Guide (Updated ed. 2018). Provided below is a summary of the book.

International Estate Planning: A Reference Guide, is a practical and authoritative resource for those seeking key information in the estate planning field. Practitioners and foreign advisers, [moved a phrase to later] whose clients have assets, children, parents or a spouse in other countries, or whose tax liabilities are difficult to define because of nationality, employment, or residence issues, and U.S. executives working in foreign countries will find straightforward, useful information in this guide. Equipped with a companion CD the appendix to the book contains copies of fillable tax forms and notices, relevant treaties and Hague conventions, as well as a list of organizations and resources to quickly help the reader obtain the answers they need.

International Estate Planning addresses questions such as:
- “I just bought a vacation home in France. Should I do anything?”
- “My daughter married someone in Italy. Should I change my trust?"
- “Can an American save taxes by using off-shore trusts?”

These are not easy questions. Mistakes and pitfalls are pointed out throughout the book and ways to prevent them are explained. The authors have spent more than 20 years in private client practice and have a firsthand appreciation of the need for authoritative information.

Book on The Uses of the Dead: The Early Modern Development of Cy-Près Doctrine (Studies in Medieval and Early Modern Canon Law)

Caroline R. Sherman recently published a book entitled, The Uses of the Dead: The Early Modern Development of Cy-Près Doctrine (Studies in Medieval and Early Modern Canon Law) (2018). Provided below is a summary of the book.

Cy-près doctrine, which allows the purpose of a failing or impractical charitable gift to be changed, has been understood since the eighteenth century as a medieval canon law principle, derived from Roman law, to rescue souls by making good their last charitable intentions. The Uses of the Dead offers an alternate origin story for this judicial power, grounded in modern, secular concerns.

Posthumous gifts, which required no sacrifice during life, were in fact broadly understood by canon lawyers and medieval donors themselves to have at best a very limited relationship to salvation. As a consequence, for much of the Middle Ages the preferred method for resolving impossible or impractical gifts was to try to reach a consensus among all of the interested parties to the gift, including the donor's heirs and the recipients, with the mediation of the local bishop.

When cy-près emerged in the seventeenth century, it cut a charitable gift off from return to the donor's estate in the event of failure. It also gave the interested parties to the gift (heirs, beneficiaries, or trustees) little authority over resolutions to problematic gifts, which were now considered primarily in relationship to the donor's intent―even as the intent was ultimately honored only in its breach. The Uses of the Dead shows how cy-près developed out of controversies over church property, particularly monastic property, and whether it might be legally turned over to fund education, poor relief, or national defense.

Renaissance humanists hoped to make better, more prudent uses of property; the Reformation sought to correct superstitious abuses of property and ultimately tended to prevent donors' heirs from recovering secularized ecclesiastical gifts; and the early modern state attempted to centralize poor relief and charitable efforts under a more rational, centralized supervision. These three factors combined to replace an older equitable ideal with a new equitable rule―one whose use has rapidly expanded in the modern era to allow assorted approximations and judicial redistributions of property.