Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, March 7, 2019

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

California probate code 2018McGovern & 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

March 7, 2019 in Books | Permalink | Comments (0)

Sunday, February 17, 2019

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

SluggRamsay 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.

February 17, 2019 in Books, Books - For Practitioners, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Friday, January 25, 2019

Book on Effective Use of IRA Assets in Estate Planning

IrabookSeymour 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.

January 25, 2019 in Books, Elder Law, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, January 21, 2019

Book on The Heirs: A Novel

TheheirsSusan 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.

January 21, 2019 in Books, Books - Fiction, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, January 14, 2019

Book on International Estate Planning: A Reference Guide

Int-Estate-Plan-2015-HC_CDBarbara 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.

January 14, 2019 in Books, Books - For Practitioners, Current Affairs, Estate Administration, Estate Planning - Generally, Travel | Permalink | Comments (1)

Tuesday, January 1, 2019

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

Cy-presCaroline 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.

January 1, 2019 in Books, Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

Friday, November 9, 2018

Book Review: On Living

OnlivingKerry Egan is a graduate of Harvard Divinity School and is a hospice chaplain. The book is a collections of lessons that she has derived from her experiences, and observations about live, death, and spirituality.

Egan describes her chaplain’s role as talking and listening to patients about their families and, perhaps, about religion, God, or the meaning of life — but mostly about families. "Family is where we first experience love and where we first give it.”

The author invites us to say important things now without waiting, to live without regret, to cherish our bodies how they are. She reminds us that what we were in life we are in death: “Death does not automatically make you a better person.” 

Egan attempt to inform the read that everyone is broken, but that listening to others' stories can heal a person's soul. "I know this because it healed mine.” The dying are still living, still growing, still learning, and may want to release long-held secrets or simply want to be seen as who there were before they became ill.

As attorneys, we are trained to be logical and analytical and to solve problems for our clients. Reading this book will guide us in contemplating the softer side of ourselves, the work we do, and the clients we represent. It invites us to consider how our experiences with our clients shape us, both individually and professionally.

See Shelley D. Coelho, Book Review: On Living, NAELA,org, Spring, 2018.

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

November 9, 2018 in Books, Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 11, 2018

Book on Cases and Materials on Gratuitous Transfers, Wills, Trusts, Gifts, Future Interests, and Taxation

Book2Mark L. Asher and Grayson MP McCouch recently published a Book entitled, Cases and Materials on Gratuitous Transfers, Wills, Trusts, Gifts, Future Interests, and Taxation (West Academic Publishing, 7th ed., 2018). Provided below is a brief summary of the book.

The new edition of Gratuitous Transfers incorporates developments in the law of wills, trusts and estates since 2013, including a new principal case involving beneficiary consent to trust accounting. The text also includes references to case law and literature relating to same-sex marriage, revocation by divorce, reformation of wills, directed trusts, trust decanting, and fiduciary access to digital assets, as well as statutory references to recent amendments to the Uniform Probate Code and Uniform Trust Code. The coverage has been thoroughly updated while maintaining continuity of organization and general approach with previous editions.

October 11, 2018 in Books, Books - For Practitioners, Books - For the Classroom, Estate Administration, Estate Planning - Generally, Estate Tax, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Tuesday, October 9, 2018

Stormy Daniels’s Oral Will: Noncupative Wills Make for Risky Estate Planning

Stormy-Daniels-2-300x199Stormy Daniels's recently released memoir, Full Disclosure, was written over a period of 10 years and reveals several facets of the former adult-film stars life. At the forefront is the 2006 encounter with President Donald Trump at Lake Tahoe and the chaos that occurred after her execution of a Non-Disclosure Agreement prior to the 2016 election.

The final chapters of the memoir highlight the tremendous fear Daniels experienced after the Wall Street Journal story featuring the aforementioned Non-Disclosure Agreement and the lawsuit Daniels filed in federal court claiming that the document was invalid. Daniels claimed that she was intimidated by Trump's attorney, Michael Cohen, into signing the agreement as well as being threatened in a Las Vegas parking lot in 2011. By March, 2018, when she filed the suit and was interviewed on CBS's 60 Minutes, Daniels was receiving death threats - on her and her young daughter. This resulted in her having a friend record her directing the disposition of her estate in case any of the threats were carried out.

An oral will, such as a recorded will produced by Stormy Daniels, is known as a nuncupative will and is rarely enforceable, except for some specific exceptions. They are problematic because they raise questions as to authenticity and fraud. Even in our technological era, wills are still required to be signed and witnessed, and the witness are to testify to the person's ability and capacity to execute a will. A document containing a person's original signature must be filed to be entered into probate.

See Cori A. Robinson, Stormy Daniels’s Oral Will: Noncupative Wills Make for Risky Estate Planning, Above the Law, October 9, 2018.

Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.

October 9, 2018 in Books, Current Events, Estate Planning - Generally, Television, Wills | Permalink | Comments (0)

Tuesday, September 25, 2018

Book on The Advisor's Guide to Disability Insurance

AdvisorbookTamra L. Barraclough, Erik T. Reynolds, & R. David Watros recently published a book entitled, The Advisor's Guide to Disability Insurance, ABA Book Publishing (2018).Provided below is a summary of the book.

It may not be the first thing that comes to mind, but disability insurance may represent the most important financial product that individuals need during their working years. Generating an income from work is the foundation for all financial planning, allowing individuals to maintain their lifestyle as well as plan for future retirement. The Advisor’s Guide to Disability Insurance is a clear, concise, and approachable guide that helps attorneys and other financial professionals understand the opportunities and benefits of disability insurance for their clients as well as for themselves and their families.

This book presents information on disability insurance with a long-term duration until retirement, beginning with the basics and an overview of the different types of disability. Subsequent chapters address key topics in greater depth:

  • Individual and group long-term disability
  • Integrated group and individual plans
  • Underwriting the disability risk
  • Filing a claim under different policy types
  • Employment/shareholder agreements
  • Evaluating and selecting a disability insurance carrier
  • Regulations and relevant benefit laws
  • Income protection planning and how it will evolve in the future
  • The role the advisor plays in planning
  • Sample planning situations

September 25, 2018 in Books, Disability Planning - Health Care, Estate Planning - Generally | Permalink | Comments (0)