Wills, Trusts & Estates Prof Blog

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

Monday, April 22, 2019

Washington State Could Become First State to Allow Human Composting

TreeWashington state Senate and House of Representative passed bill 5001 on Friday which would allow residents to take part in natural organic reduction” of human remains. The bill reportedly passed easily and with bipartisan support, having taken years in the making to get the bill this far.

Research showed that careful composted human remains could be safe for use in a household garden, and that a trial that involved six backers that agreed to organic reduction. The results were positive and “the soil smelled like soil and nothing else." Democratic state Sen. Jamie Pedersen stated that, “People from all over the state who wrote to me are very excited about the prospect of becoming a tree or having a different alternative for themselves.” The process will reportedly cost $5,500.

See Edmund DeMarche, Washington State Could Become First State to Allow Human Composting, Fox News, April 21, 2019.

April 22, 2019 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Science | Permalink | Comments (0)

Saturday, April 20, 2019

Texas Supreme Court Allows Probating Will After 4-Year Statute of Limition

CourtThe Texas Supreme Court reversed and remanded the lower courts' decision that the four-year statute of limitations Section 256.003(a) of the Texas Estates Code prevented an executor from probating a foreign will.

After a man and wife #1 divorced, the man married wife #2. The second wife passed away in 2006, and executed a valid will that left everything to the man. The man never probated her will. The man and the first wife must have remained friendly, because when he later passed away in 2015, he left most of his estate to her as well as making her his executor. When the first wife was going through the man's belongings she discovered the non-probated will of the second wife, and offered the will for probate as a muniment of title nine years after the second wife's death in her position as executor of the man's estate.

The children of the second wife, her were thus her intestate heirs, contested the probate of the will on the grounds that it was far beyond the four-year limitations period stated in the Estates Code. They argued that the "default" of probating the will fell on the man, and thus the entering of the will was inappropriate. The first wife argued that the statute applies to the default of the applicant, and that the man was not the applicant in this regard, but rather the first wife who attempted to probate the will. The trial court granted the children's motion for summary judgement, and the appellate court affirmed.

The Court agreed with the lower courts that the first wife was barred from probating the second wife’s will in her capacity as executor because the first wife was standing in the shoes of the husband’s estate. However, the first wife had standing to probate the second wife’s will in her individual capacity as she was the beneficiary of the husband’s estate, who was the beneficiary of the second wife’s estate. The Court ruled that “under Section 256.003(a), when an applicant seeks late-probate of a will in her individual capacity, only the applicant’s conduct is relevant to determining whether she ‘was not in default.’"

See Ferreira v. Butler, No. 17-0901, 2019 Tex. LEXIS 375 (Tex. April 12, 2019).

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

April 20, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, April 19, 2019

More Than Half of Americans Want to Live to 100

RetirementAccording to a survey conducted by AIG Life & Retirement of those between the ages of 40 to 74 and had at least $50,000 in their retirement accounts, 53% of Americans now have their eyes set on reaching 100 years of age. But of those that seek longevity, half of them are worried their savings will not last, and almost 60% fear running out of that money more than they fear death itself.

Todd Solash, president of Individual Retirement, AIG, is excited that people want to live beyond the century mark. "We all know that life’s a journey, not a destination. We will do anything we can to help them along.’’

Though the respondents are excited at the prospect of leading such a long like, they are also anxious about the struggles they potentially will face. Generating lasting retirement income and the rising cost of health care tied as the most significant financial challenge they said they would face when planning for retirement, coming in at 23%. Only 16% said they were extremely confident that their partner would be able to manage his or her spending from retirement savings if they were to die first.

But respondents also credited financial advisors with allaying their financial fears about growing older and being secure in their retirement. 45% of those with advisors were very to extremely confident that their current retirement savings plan will sustain them to become centenarians. A mere 8% of those surveyed that admitted they did not have financial advisors felt the same level of confidence. Solash said in a prepared statement that "We must fundamentally change how we talk about retirement and replace what has been more of a singular focus on savings with a broader perspective that also includes protected lifetime income sources like annuities as part of an overall retirement plan."

See Jaqueline Sergeant, More Than Half of Americans Want to Live to 100, Financial Advisor, April 10, 2019.

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

April 19, 2019 in Current Affairs, Current Events, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Article on Of Piketty and Perpetuities: Dynastic Wealth in the Twenty-First Century (and Beyond)

CoaEric Kades recently published an Article entitled, Of Piketty and Perpetuities: Dynastic Wealth in the Twenty-First Century (and Beyond), 60 B.C. L. Rev. 145-215 (2019). Provided below is an [] of the Article.

For the first time since independence, in a nation founded in large part on the rejection of a fixed nobility determined by birth and perpetuated by inheritance, America is paving the way for the creation of dynastic family wealth. Abolition of the Rule Against Perpetuities in over half the states along with sharp reductions in, and likely elimination of, the federal estate tax mean that there soon will be no obstacles to creating large pools of dynastic wealth insuring lavish incomes to heirs for generations without end. The timing of these legal changes could hardly be worse. Marshaling innovative economic data extending back centuries, Thomas Piketty has shown that the relatively egalitarian incomes enjoyed in developed economies from the end of World War II until around 1980 were an aberration and that we are in the process of returning to the historical norm of much greater income and wealth inequality. This Article shows, unhappily, that this revival of unending inherited wealth is of even greater concern than previously thought. In doing so, this Article makes three significant contributions to the growing literature on income inequality and its devastating effects. First, this Article reveals the importance of Piketty's work to the law of inheritance, and in particular, it extends his "macro" economic insights to the "micro" level of families and the potential role for newly-legitimated perpetual trusts to instantiate a nobility consisting of a relatively small group of families forever privileged by ever-expanding inherited wealth. Second, this Article identifies three devastating consequences of perpetuities, consequences that more than justify rules restricting perpetuities. Finally, this Article reconceptualizes the harms resulting from perpetuities and proposes innovative normative solutions carefully calibrated to ameliorate those harms.

April 19, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Thursday, April 18, 2019

Article on The Golden Years, Gray Divorce, Pink Caretaking, and Green Money

SilverNaomi Cahn recently published an Article entitled, The Golden Years, Gray Divorce, Pink Caretaking, and Green Money, Elder Law eJournal (2018). Provided below is an abstract of the Article.

This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs to change as well. Nonetheless, notwithstanding changing family forms and roles and economic disparities, we have not made the requisite changes to prepare for the forthcoming silver tsunami.

April 18, 2019 in Articles, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Cremation Mystery Besets Family: 2 Sets of Ashes for 1 Man

UrnThe family of Robert Nero, Sr. has been cherishing an urn they believed contained the patriarch's ashes after he passed away in 2013, placing it on a place of honor on his widow's mantle. They have recently learned that the urn may not contain their loved one's ashes, but instead the cremains of someone else entirely.

On March 25, a West Palm Beach YWCA worker, Scott Manochi, was clearing brush when he found two piles of ashes and two metal identification disks from a crematorium. Police contacted the crematorium, which stated that the ashes belonged to Nero and another person, and that they had handled the bodies for Stevens Brothers Funeral Home. The funeral home sent an employee to collect the ashes, Willie Watts, who also does grounds work for the YWCA. When contacted by a reporter, Watts feigned ignorance about the entire situation.

Miami Dade College mortuary science professor Joseph Finocchiaro said it's unlikely the ashes could have been outdoors for long, as weather conditions would have scattered them. Cremation almost always destroys the DNA of a person, so it would be nearly impossible to determine which ashes are truly Nero's. The answer may lie with the silver disk that accompanied the found pile of ashes. That disk is with the ashes through every step from the crematorium to the mortuary to the family, Finocchiaro says.

See Terry Spencer and Joshua Replogle, Cremation Mystery Besets Family: 2 Sets of Ashes for 1 Man, Fox News, April 16, 2019.

April 18, 2019 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 17, 2019

CLE on For Better or for Worse: Spousal Rights in Retirement Plans

CLEThe American Law Institute is holding a webcast entitled, For Better or for Worse: Spousal Rights in Retirement Plans, on Tuesday, May 14, 2019, from 12:00 – 1:30 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend
While the available tax incentives motivate more and more people to hold substantial wealth in qualified plans and individual retirement accounts, many plan participants don’t understand how the distributions work or how to pass that tax benefit on to their beneficiaries. Who can be a designated beneficiary? How do the distribution options change for beneficiaries that are spouses vs. non-spouses? What happens when the account owner is divorced or remarried?

In this 90 minute webcast, we’ll explore how spousal rights to retirement plans can vary from state to state and what your clients can to do ensure that their assets go to their intended party.

What You Will Learn
The presenters, all highly experienced estate planning practitioners and Fellows of the American College of Trust and Estate Counsel (ACTEC), will review:

The impact of Windsor and Obergefell on retirement plan benefits in same-sex unions
Spousal rights in retirement plans subject to ERISA
How spousal rights can vary considerably among the common law and community property states
ERISA preemption of state laws
Case studies illustrating spousal rights in both common law and community property states
Best practices in planning to maximize chances that clients’ intended outcome will occur

All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend
All estate planners and employee benefits practitioners will benefit from attending this webcast from ALI CLE and ACTEC.

April 17, 2019 in Conferences & CLE, Current Events, Estate Administration, Estate Planning - Generally, New Cases, Non-Probate Assets | Permalink | Comments (0)

Article on A Historical Examination of the Constitutionality of the Federal Estate Tax

ConstitutionHenry Lowenstein & Kathryn Kisska-Schulze published an Article entitled, A Historical Examination of the Constitutionality of the Federal Estate Tax, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.

April 17, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0)

Tuesday, April 16, 2019

Sperm Donor Tells Australian High Court He is the Legal Father to Lesbian Couple's Daughter

FamilylawRobert Masson, as he is known to Australia's High Court, claims that he is the legal father to a lesbian couple's young daughter. He states that one of the women, a friend of his for 25 years, approached him to donate sperm on the contingency that he would play an important role in the future child's life. He is listed as the biological father on the girl's birth certificate, and he insists that she refers to him as "daddy."

He did not assert his legal claim to the girl until the couple wanted to take her out of the country. Now there is a constitutional issue as the parties argue that state law and Commonwealth law have different perspectives, one stating that a sperm donor is a legal father while according to the other the sperm donor is not.

A judge presiding over the case asked Tuesday: “Is there not a difference between the university student who is a donor to a sperm bank for a few bob and the sperm donor who plays a role in the life of the child?” The result of this case is primed to be a landmark decision in the argument over what the legal requirements are to be a parent.

See Kaylie Piecuch, Sperm Donor Tells Australian High Court He is Legally Father to Lesbian Couple's Daughter, Fox News, April 16, 2019.

April 16, 2019 in Current Affairs, Current Events, Estate Planning - Generally, New Cases, Science, Travel | Permalink | Comments (0)

California Estate Tax: Gone Today, Here Tomorrow?

RobinhoodRecently, California State Senator Scott Wiener introduced a bill that would impose estate, gift, and generation-skipping transfer tax on any transfers, both during life and at death, after December 31, 2020. California law dictates that if the legislation passes any new bill that imposes transfer tax, the law does not go into effect unless the voters approve it. So if the bill passes the California Legislation, the bill will be on the November 2020 ballot.

Under the proposed bill, taxpayers will be subject to a 40% tax rate of all transfers, same as the federal rate. There will be a credit for transfer taxes paid to the federal government to avoid double taxation. But where the federal basic exclusion amount for each type of transfer is $11,400,000 and is adjusted for inflation, the California exclusion amount will only be $3,500,000 and will not be adjusted for inflation. Among several of the issues and complexities that accompany the bill, with a full credit for federal transfer taxes, only estates between $3,500,000 and $11,400,000 will be subject to the California tax. Essentially, an estate of a Californian worth $100,000,000 would pay the same California estate tax as someone with an estate of $11,400,000. There is also no marital deduction in the current draft, but this is most likely an oversight and should be resolved.

All of the monies generated from the bill, including the transfer taxes themselves, interest, and penalties would fund the proposed Children’s Wealth and Opportunity Building Fund, which will fund programs to help address socio-economic inequality.

See California Estate Tax: Gone Today, Here Tomorrow?, National Law Review, April 4, 2019.

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

April 16, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Legislation, Wills | Permalink | Comments (0)