Wills, Trusts & Estates Prof Blog

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

Friday, November 16, 2018

Mom's Shocking Diary Secret Triggers Legal Challenge by Daughter

FranceParents are meant to provide, care, nurture their children and do everything in their power to allow their children become the greatest adults they could be. But what if a parent withholds an incredible opportunity from their child, supposedly out of love? Also, what if the child finds out about that betrayal years down the road, after the beloved parent has passed away?

That's what happened to Celeste, a student in high school from California with a knack for speaking France. A knack so great, in fact, that she won a local foundation's contest to spend a month in France. Upon her return, the president of the foundation was so impressed that he wrote a letter addressed to both Celeste's mother and Celeste herself, offering her a scholarship to the university of her choice in France, paying all expenses and tuition. But the mother did not pass on the message; instead she replied back that she could not stand for her daughter so be so far away for so long, and that Celeste would remain in her hometown and pursue cosmetology.  The mother signed the letter "Leave us alone!"

Celeste never left home, had three adult children with French names, and never lost her love for the French language. It was not until she was going through her mother's diary 2 weeks after her passage that she discovered the letter and the selfish intent behind its refusal. She now wants to know what she can do against her mother's estate, which is giving a sizable amount to charity and grandchildren. She would first have to file a claim against the estate, as creditors are paid first, then if that is denied she would file a lawsuit against the estate, claiming her mother breached her duty to her by wrongfully withholding the offer.

Secondly, she would have to send post cards from France.

See H. Dennis Beaver, Esq., Mom's Shocking Diary Secret Triggers Legal Challenge by Daughter, Kilpinger, November 14, 2018.

Special thanks to Lorri Carpenter (CPA, Florida) for bringing this article to my attention.  

November 16, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (2)

Thursday, November 15, 2018

Stratford Actor Douglas Rain, Who Supplied HAL’s Voice, Dies at 90

HALCanadian actor Douglas Rain, one of the co-founders of the Stratford Festival, passed away of natural causes at the age of 90 at St. Marys Memorial Hospital, just outside of Stratford, Ontario. He spent 32 years playing several Shakespearean characters on stage at the festival until 1998. His roles included Claudio in "Measure for Measure" in 1954, Malvolio in "Twelfth Night" in 1957, Edgar in "King Lear" in 1964 and Prince Hal in "Henry IV, Part 1" in 1958. Rain is survived by his two sons, David and Adam, daughter Emma, granddaughter, Salima, and a daughter-in-law, Asira.

It was the aloof and frightening voice of the artificially intelligent HAL 9000 in 1968's film 2001: A Space Odyssey that brought Rain into the public sphere. HAL is the onboard master computer on the spaceship Discovery 1 but goes rogue, at one pointing balking to an astronaut tells it to open the pod doors, "I'm sorry, Dave. I'm afraid I can't do that. This mission is too important for me to allow you to jeopardize it." When the spaceship occupants manage to shut the computer down, HAL sings Daisy Bell and utters, "I'm afraid, Dave. Dave, my mind is going. I can feel it."

The American Film Institute named HAL the 13th greatest movie villain of all time, joining a list that includes Hannibal Lecter and Darth Vader.

See Mark Kennedy, Actor Douglas Rain, Who Supplied HAL's Voice, Dies at 90, ABC News, November 12, 2018.

November 15, 2018 in Current Events, Estate Planning - Generally, Film | Permalink | Comments (0)

Wednesday, November 14, 2018

Paul Allen's Will Sheds Little Light on What Will Happen to Estate

PaulallenPaul Allen’s six-page will was filed with King County on October 24, the same day that his sister, Jody, was announced as his executor and trustee of his estate. His will did not provide as much clarification as anticipate, instead pointed to a living trust established decades ago. The disposition of the assets within the trust are not expected to be made public. Forbes has estimated his wealth at $20 billion.

Allen died on October 15 at age 65 from complications of non-Hodgkin lymphoma. He was a co-founder of Microsoft, owned the Seattle Seahawks, donated significantly to the arts community and scientific research, and ran the multifaceted Vulcan Inc., which reshaped the real-estate landscape of South Lake Union.

Jody Allen said last month that “I will do all that I can to ensure that Paul’s vision is realized, not just for years, but for generations.” Allen signed the will on July 18, with two Vulcan employees as witnesses.

See Rachel Lerman, Paul Allen's Will Sheds Little Light on What Will Happen to Estate, Seattle Times, November 8, 2018.

Special thanks to Adam J. Hirsch (Professor of Law at the University of San Diego School of Law) for bringing this article to my attention.

November 14, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, November 12, 2018

Tha Father of Marvel, Stan Lee, Dies at 95

SleeStan Lee, the beloved chief writer and editor of Marvel Comics, who was integral in the break-out success of the comic book industry, has passed away at the age of 95. An attorney for Stan Lee's daughter, J.C., confirmed the icon's death at Cedars-Sinai Medical Center in Los Angeles.

Stan Lee was a central player in the creation of Spider-Man, the X-Men, the Fantastic Four, Iron Man, the Hulk, Thor and the many other superheroes who are the embodiment of pop culture for numerous fans. Under Stan Lee's guidance, Marvel to made the characters feel human with insecurities, personalities, and flaws. Just as with his heroes and villains, Stan Lee presented himself as approachable with his gregarious, optimistic and alternately grandiose demeanor.

He was born Stanley Martin Lieber on December 28, 1922, in Manhattan to two Romanian immigrants and the family moved to the Bronx. Stan Lee wished to be a serious literature writer but was hired as an office gofer by a company writing pulp comics in 1940. He was paid $8 a week, but eventually was writing and editing stories for the business. 

After using several pseudonyms to give the impression that Marvel had a large stable of writers, he changed his name in the 1970s, essentially his first name split into the two syllables. Stan Lee wrote training manuals stateside in the Army Signal Corps while moonlighting as a comics writer during World War II, and he married his wife Joan in 1947, remaining married until her death last year. His daughter Joan Celia (J.C.) was born in 1950, and his daughter Jan was born in 1953 but sadly died three days after her birth.

Mr. Lee’s unwavering energy suggested that he possessed superpowers himself, minus the cape. I want to do more of everything I’m doing,” he said in With Great Power …: The Stan Lee Story, a 2010 television documentary. “The only problem is time. I just wish there were more time.”

See Jonathan Kandell & Andy Webster, Stan Lee, Superhero of Marvel, Dies at 95, New York Times, November 12, 2018; see also Alexander F. Remington, Stan Lee, Creator of Superheroes, Dies at 95, Washington Post, November 12, 2018.

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

November 12, 2018 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Sunday, November 11, 2018

Article on Abandoning Realization and the Transition Tax: Toward a Comprehensive Tax Base

Tax actHenry Ordower recebtly published an Article entitled, Abandoning Realization and the Transition Tax: Toward a Comprehensive Tax Base, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.

The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates the function and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition tax as joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any other longstanding and obsolescing tax principle. Recommending that Congress seize the Tax Cuts and Jobs Act moment and discard the general rule deferring the inclusion of gain in income through a realization requirement in favor of the annual marking to market of all the taxpayer’s property, the article models a general mark to market transition tax after the new transition tax on deferred foreign income. The proposal recommends inclusion of the net gain in taxpayers’ incomes at significantly reduced rates of tax, including one rate for liquid assets and a lower rate for illiquid assets and an opportunity to pay the tax in installments. Following the initial inclusion under this transition tax, gain and loss would be included annually consistent with comprehensive tax base definitions under an accrual system of taxation based on marking to market. Growth or decline in the value of taxpayers’ property would be taken into account income annually. In some instances permitting some taxpayers to defer payment of the tax until disposition of the property may be desirable but the continued deferral might incur an interest charge.

November 11, 2018 in Articles, Current Affairs, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

New PLR Addresses Special Trustee's Power to Limit or Eliminate Testamentary General Power of Appointment

IrsThe IRS recently issued a private letter ruling addressing key issues with respect to an independent special trustee’s power under a trust instrument to limit or eliminate a testamentary power of appointment granted in favor of the primary trust beneficiary. Significant, the IRS acknowledged that a testamentary general power of appointment is not considered to be exercisable during the lifetime of the power holder.

The private letter ruling is particularly interesting in that certain trust assets that would otherwise be included in the Primary Beneficiary’s gross estate may now be excluded from the Primary Beneficiary’s gross estate if the special trustee exercises its power to limit or eliminate the Primary Beneficiary’s testamentary power of appointment.

The IRS accepted the taxpayer’s position that the power of appointment set forth in the trust agreement is conditioned upon the Primary Beneficiary dying before an independent trustee limits or eliminates the power of appointment. The result of this ruling is that if the independent trustee were to exercise its discretionary power under the trust agreement to eliminate the Primary Beneficiary’s testamentary power of appointment, then such power of appointment would not exist upon the Primary Beneficiary’s death, and the trust assets would not be included in the Primary Beneficiary’s gross estate.

See Ashley L. Gill, New PLR Addresses Special Trustee's Power to Limit or Eliminate Testamentary General Power of Appointment, Mitchell Williams Law, November 6, 2018.

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

November 11, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, November 9, 2018

Billionaire Family Feud Widens as Son Sues Sister

CanadaOne of Canada's richest family's drama and intrigue thickens. Former Magna International Inc. Chief Executive Officer Belinda Stronach is now being sued by her brother Andrew, claiming that he has lost faith in her and that she should be removed from a family trust. Andrew wants her to be replaced by their billionaire father, who is also suing Belinda at a tune of $520 million Canadian dollars.

Both disputes arise from Belinda handling of the family trusts after her father, Frank Stronach, handed over control of them to pursue politics in his native country of Austria. The latest suit, filed November 1, claims Belinda and trustees “have undertaken a number of improvident and costly investments that have resulted in significant losses.” The lawsuit also alleges that Andrew was not giving proper accounting of the trust. “To date, Andrew’s proper and reasonable requests for information have been ignored, or only partially answered after lengthy delays and following repeated requests for disclosure,” according to documents filed with the Ontario Superior Court.

“The filing on behalf of my brother is an extension of my father’s legal pursuit against me and my children, and the allegations remain just as untrue,” Belinda Stronach said in a statement Monday. “We will be responding formally in due course. It saddens me greatly that we have reached this juncture in our family.” A spokesperson said that both claims were completely without merit.

See Doug Alexander & Fredric Tomesco, Billionaire Family Feud Widens as Son Sues Sister, Financial Advisor, November 8, 2018.

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

November 9, 2018 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Travel, Trusts | Permalink | Comments (0)

Thursday, November 8, 2018

Dennis Hof Wins Election From the Grave

HofDennis Hof, the owner of several brothels in the state of Nevada, was found dead the morning of October 16 after celebrating his 72nd birthday with friends and politcal comrades. Officials are still determining his cause of death, but they do not suspect foul play.

Hof was running for Nevada's 36th Assembly District as a Republican against Democratic educator Lesia Romanov, and ultimately won the seat. The district is one that is regularly held as a Republican and touches both California and Utah and includes the Nevada National Security Site where nuclear weapons were once tested.  Due to his passing being so close to the election his name remained on the ballot. County officials will appoint a Republican to take his place in the seat.

He had run for office in 2016 as a Libertarian, but ultimately lost. After revamping himself as a Trump-style Republican, Hof earned backing from Trump associate Roger Stone and tax-cut activist Grover Norquist.

See Associate Press, Dennis Hof, the Brothel Owner who Died Last Month, Wins Election, NBC News, November 7, 2018.

November 8, 2018 in Current Affairs, Current Events, Estate Planning - Generally | Permalink | Comments (0)

New Act: the Kasem/Baksys Visitation Law [Illinois]

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-11-08/4b58c44f-1771-4700-bd84-946ed0cccafb.pngThis bill would create the “Frail Individual Family Visitation Protection Act”, aka the Kasem/Baksys Visitation Law.  It defines a "frail individual" and permits family members of a frail individual to petition the court for visitation if a caregiver is unreasonably preventing visitation.  NAELA originally opposed the bill as it lacked many important limiting provisions.  Through the legislative process, the bill was amended to exclude guardianships and POAs and to include other procedural protections to ensure that the “frail individual’s” rights and interests were protected.  Moreover, we sought to ensure that a proper legal process was articulated to address any such actions.  HB4039 passed unanimously out of the House and Senate and is now on Governor Rauner’s desk awaiting signature. Thank you to Rep. Sara Wojiecki-Jimenez (D-Springfield) and Sen. Melinda Bush (D-Grayslake) for their hard work on this bill.

See Tony Abboud, NAELA Post-Legislative Session Report #1, NAELA-IL.org, August 10, 2018.

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

November 8, 2018 in Current Affairs, Current Events, Elder Law, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Wednesday, November 7, 2018

Estate-Planning Strategies for Art and Collectibles Explained

VangoghOn November 1 at Bonhams in New York City, three experts in the field of trusts and estate planning discussed the various options available to clients regarding planning for art disposition, the need for appraisals and the importance of communicating one’s wishes with the next generation.

“Intentional planning is the most important issue to address with your clients,” Sherri Cohen, vice president and director of valuations, Trusts & Estates at Bonhams stated. Many clients also seem to overlook the big picture of disposing or transferring a collection. Many pieces may have monetary value but others may have emotional value, possibly due to knowing the artist that produced a piece or simply because the client has had that piece for decades.

Warren K. Racusin, a partner and chair of the trusts and estates group at Lowenstein Sandler LLP in New York City, noted that, “collectors are good with acquisitions but often make mistakes regarding the four methods of disposing their art.” Those method are selling, gifting, bequeathing, and donating to a charitable organization or charitable remainder trust. Appraisals are necessary to establish basis, no matter how the pieces are disposed of from the estate.

Communication within a family when it comes to art collections is vital, and lack of it is a prime cause of litigation. Parents must be transparent about their reasons for disposing of their art and ascertain their children’s preferences. If parents want to dispose of their art, the first question to the children should be: “Do you want this stuff?”

See Dawn S. Markowitz, Estate-Planning Strategies for Art and Collectibles Explained, Wealth Management, November 5, 2018.

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

November 7, 2018 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)