Wills, Trusts & Estates Prof Blog

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

Monday, November 12, 2018

Corpse Hotels Cater to Japan's Waiting Dead

HotelJapan has seen an exponential increase in its aging population, and the reality of this statistic is that there has also been a significant increase in the number of the dead, with a record of 1.34 million last year. With the small country unable to bury their loved ones that passed on, families must cremate them. But in many urban areas there is a wait for crematories, often up to a full week.

In the interim, people are turning to corpse hotels, where their deceased family member can await cremation in tasteful, competitively priced comfort, and families can say farewell at their leisure.  Those moments can be conducted with the help of an automated coffin-retrieval system, which quietly trundles the correct casket up from the storage area. Gone are the sterile environments of morgues, instead replaced by private viewing rooms and even suites that resemble the first floor of a traditional Japanese home where families can dine together with a perspex coffin containing the body. Management is particularly proud of the miniaturized refrigeration unit that makes this possible.

Corpse hotels are attempting to ease the tide, as it is predicted that between now and 2040 the death toll will continue to rise to a peak of 1.7 millions annually.

See Leo Lewis, Corpse Hotels Cater to Japan's Waiting Dead, Financial Times, November 7, 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 Affairs, Death Event Planning, Elder Law, Estate Planning - Generally, Travel | 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)

Friday, October 26, 2018

Article on Everybody Dies. Or, a Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented

Will and testamentVictoria J Haneman recently published an Article entitled, Everybody Dies. Or, a Consideration of Simultaneous Death Statutes and the Struggles of the Self-Represented, 32 Notre Dame J.L. Ethics & Pub. Pol'y 221-250 (2018). Provided below is an abstract of the Article.

The access to justice problem has been the cause célèbre of the social justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. The stark reality is that while sixty-one million people are potentially eligible to receive legal aid, most will find themselves unassisted when need arises. Notably, however, the access to justice problem in this country reaches beyond the poorest and most disadvantaged. The working-class and middle-class are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. While access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. The business of dying is extremely lucrative for estate planning attorneys and probate practitioners, and the legal process has been designed to accommodate the represented. To that end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to blindly fall into the pit. This discussion is framed within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios.

Twenty-six states recognize the validity of holographic wills, which are wholly or partially handwritten wills commonly utilized by the self-represented testator. While the will of a competently represented testator contains survivorship language as a matter of course, the holographic will of the self-represented layperson is unlikely to include the legalese of survivorship language. Only ten of the twenty-six states authorizing holographic instruments have adopted language that protects the instruments with a default 120-hour rule in the absence of contrary language. The remaining sixteen states have chosen to implement incomplete language that does not apply the 120-hour rule to holographic instruments, or alternatively, to reject adoption of the 120-hour rule altogether. The consequence is that while twenty-six states have authorized holographic wills as a convenience for those unable to retain counsel, sixteen of these states have implicitly endorsed and enabled self-representation while also failing to make simple, nonconsequential adjustments to the probate codes that would ease the path of the self-represented. It is in this failure that something implicit and troubling can be found.

October 26, 2018 in Articles, Death Event Planning, Estate Administration, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Wednesday, October 24, 2018

Disney World, Disneyland Custodians Claim Parks are Popular Spots to Scatter Ashes

DisneyCustodians at the famous theme parks are claiming that guests often bring their family’s ashes to scatter, and that it requires a special vacuuming process roughly every month.

“The Haunted Mansion probably has so much human ashes in it that it’s not even funny,” one Disneyland custodian said. A spokesperson for Disney told the Wall Street Journal that the spreading ashes at the park is “strictly prohibited and unlawful. Guests who attempt to do so will be escorted off property. Anaheim Police Department spokesman Sgt. Daron Wyatt admitted that officers have responded to calls “regarding ashes” at Disneyland before.

Typically guests sneak in the ashes in pill-bottles or plastic bag hidden in purses or backpacks. When ash residue is discovered on a ride, Disney workers are reportedly forced to shut down the ride and inform guests there have been “technical difficulties.”

As the Happiest Place on Earth, the locations are also popular spots for other big life moments like proposals, weddings and birthdays.

See Disney World, Disneyland Custodians Claim Parks are Popular Spots to Scatter Ashes, Fox News, October 24, 2018.

October 24, 2018 in Death Event Planning, Estate Planning - Generally, Humor | Permalink | Comments (0)

Elections, Brothels, Family: Dennis Hof and Lessons in Estate and Succession Planning

HofDennis Hof was discovered unresponsive at the age of 72 on October 16 by his friend Ron Jeremy, at the Love Ranch South, a legal brothel Hof owned in Crystal, Nevada. Despite his death, the cause of which remains unknown, he is expected by many to win his election for state assembly in November as his name remains on the ballot. According to the State of Nevada’s Constitution, the 36th District of Nevada will appoint another Republican to serve in Hof’s place should he posthumously win the election.

Questions as to who would inherit his businesses are being asked because it is unclear if Hof had a will. There has been a report that he had a trust, and friend Heidi Fleiss claims that there is indeed a last will existing somewhere. Though Hof dealt in unconventional businesses, there is still a lesson to be learned from the brothel owner's death. Ownership interest in a business is an asset like any other, and sole proprietorships must be transferred by probate or the laws of intestacy.

As is often the case with estates, litigation may ensue. It is already reported that Hof’s two estranged daughters from his first wife have surfaced inquiring as to the succession plan for their father’s empire. Suzette Cole, who worked as a madame with Hof at his brothels, may manage the brothels as her name appears on many of the brothel licenses. Interestingly, her name does not appear on the license for Love Ranch South where died.

See Cori A. Robinson, Elections, Brothels, Family: Dennis Hof and Lessons in Estate and Succession Planning, Above the Law, October 23, 2018.

 

October 24, 2018 in Current Events, Death Event Planning, Estate Administration, Estate Planning - Generally, Intestate Succession, Trusts, Wills | Permalink | Comments (0)

Sunday, October 21, 2018

No-Contest Clauses Explained

LastwillNo-contest clauses, also called in terrorem or forfeiture clauses, can be effective tools to deterring disgruntled beneficiaries from expensive litigation against a person's estate. But they must be used carefully and in line with state statutes to be utilized correctly.

In most instances, a no-contest clause dictates that a beneficiary who contests the validity of a will or trust instrument forfeits any inheritance that they otherwise would have received. So either take you was given to you or potentially receive nothing at all. With the Indiana General Assembly’s 2018 enactment of Senate Bill 247, the amended statutes will provide that a “no contest provision is enforceable” except under enumerated exceptions. This leaves only Florida being the only state to expressly prohibit no-contest clauses.

Many states, however, include a limit to enforceability. If it has been determined that a contest was brought for “good cause,” then the clause will not be enforced. Actions brought to seek the construction or interpretation of an instrument typically don’t trigger a no-contest clause and neither do non-judicial settlement agreements.

As with other estate planning tools, one size does not fit all, and no-contest clauses are appropriate only under certain circumstances. If an heir is completely disinherited, for instance, a no-contest clause is moot because there is no potential for penalty nor forfeiture. The practitioner should consult carefully with the client on the family dynamics and their concerns and wishes to ensure that the instrument encapsulates the testator’s intent

See Sarah Jenkins, No-Contest Clauses Explained, Wealth Management, October 18, 2018.

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

October 21, 2018 in Death Event Planning, Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

Monday, October 8, 2018

Why Estate Planning is Easy and Legacy Planning is Hard

InstinctDeath is finite and unavoidable, so to some it is easy. One moment you are alive and the next you are no more. Planning for that inevitable moment for a person is the job of estate planning attorneys and financial advisors, with the appropriate documents filed and tucked away, securing the transfer of that person's assets and property. But a person's death does not define a person's legacy - their life does.

Every person wants to be remembered as being the best person they could have been in whatever capacity they chose to live their life. To reach their full potential, a person needs to acquire a team around them, advising them as to the necessary steps to reach their legacy goals. If an individual attempts to do it on their own, they risk the possibility of running out of time or thought out steps and simply acting on instinct rather than intentions. A human's ability to act beyond simple animal instinct is what makes us stand apart from other species. But a person that is left to their own devices may subject themselves to the consequences of their unintentional responses to their circumstances.

See Daniel Scott, Why Estate Planning is Easy and Legacy Planning is Hard, Forbes, September 26, 2018.

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

October 8, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Friday, September 28, 2018

Article on Time is Ticking for Deathbed Tax Planning: An Analysis of its Effectiveness

DeathbedAlexander Evelson recently published an Article entitled, Time is Ticking for Deathbed Tax Planning: An Analysis of its Effectiveness, 10 Tex. Tech Est. Plan. & Cmty. Prop. L. J. 207-224 (Summer 2018). Provided below is an abstract of the Article:

Death - no matter who it happens to - always results in a tumultuous and awful situation. One minute, an individual could be laughing with a loved one, and the next, they are gone. In addition to the costs of funeral or similar arrangements and other associated costs, such as caskets and tombstones, in recent years, deathbed taxes have become more prominent. A person's estate is still subject to taxation, even when the person passes. Ordinarily, deathbed taxation should be a relatively smooth process. However, complications may arise when there are many different players and interested parties involved, such as children from other marriages.

This Article will address what constitutes deathbed planning in light of recent decisions, such as Estate of Powell. Additionally, it will provide the reader with the estate planning steps one might want to follow at the end of his or her life, and the person not previously planned for the future of his or her heirs. The following is an insight into deathbed tax planning and what the process entails.

September 28, 2018 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Friday, September 21, 2018

Clients Who Lose a Spouse Require Both Empathy and Skill

Calla-liliesAccording to a new Merrill Lynch/Age Wave Study, nationwide 53% of widows did not financially prepare for when their spouse passed away. Dan Lash, a partner at Vienna, Va.-based VLP Financial Advisors, advised calculating the value of marital property within six months of a spouse’s death. “An appraisal will determine what the gain is and set a new cost basis in the event you sell the home five years later,” said Lash.

Another study from Merrill Lynch found that among widows, four-in-10 of them found widowhood as a trigger to begin working with a financial advisor. “They are in their 70s and 80s and single again for the first time in years,” said Tom Balcom, a financial advisor at 1650 Wealth Management based in Lauderdale by the Sea, Florida.

Unlike older clients that have never been married or perpetual bachelors, widows and widowers are in mourning for their loved one. “The danger is for the widow to be overwhelmed with grief and to allow finances to take a backseat, which makes decisions even tougher to deal with later,” said Lisa Margeson, head of retirement client experience and communications at Bank of America Merrill Lynch.

“Widowed clients are often unsure and scared because they don’t want to be taken advantage of,” said Cary Carbonaro, managing director of United Capital of New York and New Jersey and 2014 CFP Board Ambassador.

See Juliette Fairley, Clients Who Lose a Spouse Require Both Empathy and Skill, Financial Advisor, September 11, 2018.

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

 

September 21, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Monday, September 17, 2018

Article on One Last Request: Understanding Michigan's Funeral Representative Law

WayneSusan M. Strunk published a Note entitled, One Last Request: Understanding Michigan's Funeral Representative Law, 63 Wayne L. Rev. 729-750 (2018). Provided below is an abstract of the Note.

Most people give some thought to what they want to happen to their remains when they die. The discourse around death indicates that most  people assume that everyone has at least a right to direct the disposition of their body.

Michigan Public Act 57 of 2016 enables a person declarant to designate a funeral representative designee who is then entrusted with the authority to make decisions about funeral arrangements and the handling, disposition, or disinterment of the declarant's body after death. "This would include, but is not limited to, decisions about cremation, and the right to possess cremated remains of the decedent."

This Note contains a survey of ancient rituals concerning bodily disposition and religious practices. These historical trends developed a foundation for present practices and attitudes towards death, bioethics, and anatomical gifts. Michigan's funeral representative law offers greater autonomous freedom of disposition than the previously controlling Michigan law by providing individuals with peace of mind that a person they choose will take care of their final wishes. While the new law is a step in the right direction, this Note identifies points of the law which remain imprecise, offers solutions, and calls for reform. For example, it is unclear what fiduciary obligations a funeral agent owes and to whom those rights are entrusted. This Note also suggests the Michigan Legislature adopt certain provisions from other states' disposition laws. Other states address practical questions, such as: whether written instructions from decedent need to be followed; whether the decedent's wishes are financially reasonable; and whether decedent should only be allowed to leave instructions if decedent pre-paid for the requested funeral arrangements.

 

September 17, 2018 in Articles, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)