Wills, Trusts & Estates Prof Blog

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

Wednesday, December 4, 2019

Casey Kasem's Children Settle Wrongful Death Lawsuit With his Wife

CaseyOn Tuesday, the adult children of the late radio host Casey Kasem filed for the dismissal of their wrongful death suit against their stepmother, Jean Kasem. Both sides have signed off on an undisclosed settlement. Kerri Kasem, however, is reportedly unhappy with the settlement, with the rumors stating that she felt that the ending was forced upon her by her two siblings.

Kasem passed away in 2014 at the age of 82 after suffering from dementia and a severe bedsore, leaving behind an estate of an estimated $100 million. The children and the stepmother has fought over the man's medical care and visitation before his death, especially after Jean secretly moved him to Washington state, allegedly to protect Kasem's privacy. His children contend that the removal care from the round-the-clock care that he been receiving led to his death, but Jean was never charged with elder abuse. The case was reopened after Jean hired a private investigator that found that the children may have played a part in Kasem's death, but police concluded that there was no wrongdoing in the case.

See Snejana Farberov, Casey Kasem's Children Settle Wrongful Death Lawsuit With his Wife, Daily Mail, December 3, 2019.

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

December 4, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, December 3, 2019

Kansas Considers ‘Greener’ New Way to Bury its Dead

TreeA Swedish company called Promessa is focusing on Kansas to present a new form of disposing of human remains to the United States because of the state's relatively lax cremation laws, especially since the state does not require a fire in the cremation process. The procedure, promession, consists of freezing the body with liquid nitrogen and then "vibrating it into particles." Susanne Wiigh-Mäsak, the biologist who founded the company, said in an interview that promession is cost-effective and eco-friendly.

Kansas' attorney general, Derek Schmidt, released an opinion shortly before Thanksgiving that the decision to allow the procedure within the state should be made by the Kansas Board of Mortuary Arts. Last May, Washington became the first state to allow the composting of human bodies in which the body is broken down into soil that the family or loved ones are allowed to keep or spread where ever they choose.

See Edmund DeMarche, Kansas Considers ‘Greener’ New Way to Bury its Dead, Fox News, December 2, 2019.

December 3, 2019 in Current Events, Death Event Planning, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Saturday, November 30, 2019

Celebrity Estate Problems Offer a Cautionary Tale — and Not Just for the Rich and Famous

PrinceNot having an estate plan that clearly details how a person wants to dispose of the entirety of their worldly possessions can cause messy fights between family members. If you are famous like Aretha Franklin or Prince those fights can be on the national stage for millions to watch. For the common man, the embarrasment, angst, and cost can still be painful, and unfortunately it happens everyday across the county amongst probate courts. 

The view that estate planning is only for the wealthy is changing, yet many Americans have not taken the most basic steps to ensure that their descendants and loved ones are properly provided for in the future. A recent survey by Edward Jones found that while 77% of Americans believe that estate and legacy strategies are important for everyone, only 24% of Americans have even taken the time to designate beneficiaries for all of their accounts, leaving the simplest of legacy decisions up in the air.

See Celebrity Estate Problems Offer a Cautionary Tale — and Not Just for the Rich and Famous, Market Watch, November 29, 2019.

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

November 30, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, Trusts, Wills | Permalink | Comments (0)

Thursday, November 28, 2019

Your Slice of the Pizza – Only Directly Inherited Asset Qualifies as Separate Property

PizzasliceMany states that are community property states declare that property that is inherited is categorized as separate property rather than part of the community estate. In California, the 5th Court of Appeals has ruled that for assets to remain separate property, they generally must have been acquired through direct inheritance, meaning inherited from one's parents.

George Deluca settled with his two siblings after numerous years over a trust his father had that held his real estate after the father died in 1990. In 1996, George agreed to waive any right or claim to any other property of the trust in exchange for title to three properties. In 1997, George and his sister entered into an “Amendment to Settlement Agreement,” under which the sister agreed to transfer the Florida Street property (an apartment complex) that had been allocated to her to George in exchange for cash and a promissory note. In 2011, George and his wife divorced, and George claimed that the Florida Street property was separate property as it was inherited. The San Diego Superior Court judge agreed, and the wife appealed.

While George and his sister chose to characterize his acquisition of the Florida Street property as an “amendment” to their trust litigation settlement from the year prior, the Court of Appeals looked through that description. The court found that George purchased the Florida Street property from the sister at a time when she had sole ownership of it. Thus, George’s acquisition could not be deemed an “inheritance or devise” and instead the general community property presumption controlled.

A negotiated allocation of assets from a trust or estate is like slicing up a pizza. As a beneficiary, you bargain for and get to keep as your separate property the particular slice you receive. However, if you later acquire (purchase, are gifted, etc.) another person’s slice of the same pizza, it presumptively will be one that you must share as community property with your spouse.

See Jeff Galvin, Your Slice of the Pizza – Only Directly Inherited Asset Qualifies as Separate Property, Trust on Trial, November 25, 2019.

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

November 28, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Wednesday, November 27, 2019

Working Interdisciplinary Networks of Guardianship Stakeholders: WINGS State Replication Guide 2019

WINGSThe American Bar Association Commission on Law and Aging has completed a new guardianship reform publication entitled Working Interdisciplinary Networks of Guardianship Stakeholders: WINGS State Replication Guide 2019.

This replication guide is a resource for states seeking to establish or enhance a Working Interdisciplinary Network of Guardianship Stakeholders or WINGS. If your state does not have such a court-stakeholder partnership, this guide outlines 10 hallmarks of WINGS and 10 steps for creating one. If your state already has a WINGS or similar reform group, the guide includes tips for strengthening, sustaining and evaluating it.

If guardianship is going to change, an ongoing collective effort by courts and a broad range of community stakeholders will be required. We hope this Guide will help.

November 27, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Sunday, November 24, 2019

When it Comes to Gifting, There's No Time Like the Present

GiftOften, allowing your loved ones to have gifts before your death can have tremendous benefits, not least of all watching them enjoying the presents during your lifetime. If you have an estate that is more than the federal exemption amount which, as of 2019, is $11.4 million, giving away assets before you pass can lower any estate taxes due. Any amount lower than $15,000 per year is tax-free, and an be used as an effective way to gradually help children and grandchildren understand and appreciate their family’s wealth.

From a tax perspective, a downside of gifting assets during your lifetime is that assets that have appreciated in value do not receive a “step-up” income tax basis. This means if you gift appreciated property or securities, the recipient will be subject to capital gains tax on the built-in appreciation when they sell the assets. It is important to consider when to gift these types of assets so that the loved one can receive the greatest benefit, rather than a possible burden.

There are numerous other vehicles that can be utilized to gift children and grandchildren assets or even funds during ones lifetime, including:

  • 529 College Savings Plans, which acts similar to a retirement account in that the money placed in it grows without being subject to federal income tax.
  • Uniform Transfer to Minor Act accounts, and any property placed in the trust are taxes at the child's tax bracket
  • Delaware Dynasty Trusts, which are notorious (or famous, however you choose to look at it) for lasting in perpetuity.

See When it Comes to Gifting, There's No Time Like the Present, Franklin Templeton, November 18, 2019.

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

November 24, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Friday, November 22, 2019

Iowa Supreme Court Clarifies Powers and Plan Due Dates for Existing Guardianships and Conservatorships

IowascIowa’s new guardianship and conservatorship laws go into effect on January 1, 2020, and this week the state's Supreme Court issued a Supervisory Order clarifying powers and initial plan due dates for existing guardianships and conservatorships.

The Supervisory Order can be found at the Iowa Judicial Branch website here: https://www.iowacourts.gov/collections/448/files/934/embedDocument/

See David B. Gonzalez, Iowa Supreme Court Clarifies Powers and Plan Due Dates for Existing Guardianships and Conservatorships, Dickinson Law, November 21, 2019.

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

November 22, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0)

Thursday, November 21, 2019

The Great American Tax Haven: Why the Super-Rich Love South Dakota

RushmoreSioux Falls, South Dakota is a sweet little city with a population of around 180,000, some decent bars downtown, and quaint sculptures dotting the streets. But generally, there is not much to attract the super-wealthy to this town in an almost unknown state in the union, except for one thing: its trust laws.

Over the years, billions of dollars from American and foreign billionaires have been transferred to South Dakota firms to be placed in trusts. “To some, South Dakota is a ‘fly-over’ state,” the chief justice of the state’s supreme court said in a speech to the legislature in January. “While many people may find a way to ‘fly over’ South Dakota, somehow their dollars find a way to land here.” A South Dakotan trust provides several benefits for the rich: it protects assets from claims from ex-spouses, disgruntled business partners, creditors, litigious clients and almost anyone else. By the end of 2020, trusts in the state will total to $355.2 billion, compared to just $57.3 billion ten years ago.

In 1981, Governor William “Wild Bill” Janklow abolished laws that at the time set an upper limit to the interest rates lenders could charge. Soon after, Citibank and other major companies came to South Dakota to dodge the restrictions imposed by the other 49 states. Now many people blame South Dakota for the country trillion-dollar credit card debt. Wild Bill then set about freeing wealthy citizens, and deregulated trusts to essentially make South Dakota the American version of Switzerland. The state now allow dynasty trusts, which last indefinitely, and does not apply the rule against perpetuities.

See Oliver Bullough, The Great American Tax Haven: Why the Super-Rich Love South Dakota, The Guardian, November 14, 2019.

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

November 21, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on What Probate Courts Cite: Lessons from the New York County Surrogate's Court 2017-2018

CourtroomBridget J. Crawford recently published an Article entitled, What Probate Courts Cite: Lessons from the New York County Surrogate's Court 2017-2018, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees and orders issued by the New York County Surrogate’s Court in the years 2017 and 2018, that the probate court located in the most densely populated county in the United States cites fewer authorities less often than almost any other court (of any level) for which data is available.

There are a variety of factors that may explain this low rate of citation by the New York County Surrogate’s Court including docket size, the size and composition of the court’s staff, a judicial perception that the application of the law is a relatively mechanical process, or a subjective determination that speed in processing the court’s docket outweighs any public interest in citation-replete decrees and orders. Yet by increasing its engagement with a range of authorities, the New York County Surrogate’s Court (and indeed any probate court) may increase public confidence in the judiciary while also enhancing understanding of trusts and estates as a complex and dynamic area of law.

November 21, 2019 in Articles, Current Events, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, November 19, 2019

Inventor of 'Sourtoe Cocktail' Passes Away at 89, Leaves his Toes to the Bar

SourtoeDick Stevenson, the man behind the infamous drink the "Sourtoe Cocktail," passed away at the age of 89. His will stipulated that all 10 of his toes are to be left to the Dawson City Downtown Hotel's bar in Canada's Yukon Territory. Stevenson's daughter, Dixie, said “It brought him the most fame of anything he’s ever done.”

Stevenson, or Captain Dick, came up with the odd drink in 1973: a shot of whiskey garnished with an amputated, mummified human toe. The idea occurred to him after buying a cabin and finding that the previous owners had left behind a jar containing a preserved toe. The toe garnishment is not to be consumed, or the patron will have to cough up $500. When the toes are not in use on the rim of drinks, they are kept packed in salt behind the bar. So far, the bar has served the cocktail to over $93,000 customers.

A representative for the hotel released a statement, saying "The Downtown Hotel mourns the loss and celebrates the life of Captain Dick Stevenson, the originator of the Sourtoe Cocktail. He certainly was one of the Yukon’s most colourful characters and a tremendous ambassador for Dawson City. His passion, creativity and energy will be missed and we are grateful for the legacy he left behind. The Sourtoe Cocktail continues to make headlines around the world and puts Dawson City on the map. Rest in Peace Captain Dick!"

His ashes will also be on display at the hotel in a toe-shaped urn that he commissioned before his death.

See Michael Bartiromo, Inventor of 'Sourtoe Cocktail' Passes Away at 89, Leaves his Toes to the Bar, Fox News, November 18, 2019.

November 19, 2019 in Current Events, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)