Wills, Trusts & Estates Prof Blog

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

Tuesday, July 14, 2020

Don’t Overlook Your Trust Funding

UnknownIf you have updated your estate plan during the COVID-19 crisis and even found a way to sign your documents while maintaining social distancing, do not overlook the last step of trust funding. 

Trust funding is a critical step in estate planning. Many people either overlook this step or fall victim to procrastination and never get to it. If properly done, trust funding will avoid probate, provide for you in the event of your incapacity, and save on estate taxes. 

With a revocable trust, you have control over the trust and can make changes and amendments during your lifetime. Think of the trust like an empty box: you can fill it up now, or on your death. If you transfer assets to the trust now, the executor of your will does not need to do that on your death. The trust is already funded.

You want to make sure to protect yourself and your family if you become incapacitated. A revocable trust is another way to ensure that you and your family have that protection. Funding the trust now will enable the successor trustee to manage the assets for you and your family in that instance.

Depending on what state you live in, the trust can also reduce state estate taxes.

You worked hard on updating your estate plan. Take the final step and fund your trust now to get the most out of your updated documents.

See Christine Fletcher, Don’t Overlook Your Trust Funding, Forbes, July 13, 2020.

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

July 14, 2020 in Current Events, Death Event Planning, Estate Planning - Generally, Estate Tax, Trusts | Permalink | Comments (0)

Tuesday, June 2, 2020

Why states are on the fence about a patient’s right to die

DieIn 2014, Brittany Maynard was dying from brain cancer at age 28. Her husband, Dan Diaz, stated that her final weeks were killed with pain, the inability to sleep, and frequent seizures.

During Maynard's last weeks, there was discussion about a lethal prescription that would send her into a deep sleep and ultimately end her life. Maynard received the prescription in Oregon, which allows terminal patients to a seek life-ending prescription from a medical doctor. 

As of now, eight states and the District of Columbia have death with dignity laws, also called medical aid in dying laws. Although the states have these laws, there are restrictions on when and how a patient can take the prescription. There are also barriers to access like waiting periods between formal requests. Another issue is how the prescription is consumed. All states that permit medical aid in dying require the patient to self-ingest the medication and must be in mentally competent at the time the prescription is taken. 

Maynard was worried that an incapacitating stroke would make her unable to self-ingest the medication. In her last weeks, Maynard experienced violent seizures almost every day. At that point, Maynard decided that it was time for the prescription as she feared of a stroke that would take away her ability to communicate and she wanted to avoid dying "trapped in [her] own body."

Although advocates contend that the laws protect the professionals right to refuse, they argue that their right to support is not protected. The main issue here is that it is not clear what it means to participate. 

It is not clear where the future rights of patients/medical staff is headed but scholars believe that legal access will expand in the coming years.

See Emilie Lucchesi, Why states are on the fence about a patient's right to die, ABA Journal, May 21, 2020. 

June 2, 2020 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Monday, May 18, 2020

The Supreme Court of Washington: Surviving Spouse Gave Up Right to Intestate Succession in Separation Contract

Waiver-e1560119697129The Supreme Court of Washington held in In Re Estate of Petelle, that the right of a surviving spouse to intestate succession can be waived in a separation contract, even if not expressly stated. The Court held that the language, "all marital and property rights" includes the right to inherit as an intestate beneficiary. 

Michael and Michelle had been married for six years before Michael filed a petition to dissolve the marriage. The parties executed a separation contract that dissolved assets and liabilities. In the separation contract the parties agreed to make a complete and final settlement of all their marital and property rights on the following terms and conditions, which stated:

“The contract shall be final and binding upon the execution of both parties, whether or not a legal separation or decree of dissolution is obtained[,]” and, by its terms, the contract remained valid and enforceable against the estate of either party if either party died after the execution of the contract. Though the contract contains a “Full Satisfaction of All Claims” section, the right to intestate succession is not mentioned."

Michelle claimed that her and the decedent were considering reconciliation, however, the decedent died intestate before divorce or reconciliation could occur. Following the decedent's death, Michelle opened decedent's probate without disclosing the separation contract or giving notice to decedent's heirs. Decedent's mother contested the grant of powers of Michelle; she also petitioned the trial court to terminate Michelle's right to intestate succession, but the trial court denied the petition. However, the Court of Appeals reversed, finding that the petitioner waived her right to intestate succession under the language in the separation contract.

The main takeaway is that, in Washington, statutory intestate rights can be waived by either express waiver or implied waiver. Further, under Washington law, intestate rights do not have to be specifically referenced in a separation contract. 

See The Supreme Court of Washington: Surviving Spouse Gave Up Right to Intestate Succession in Separation Contract, Probate Stars, May 18, 2020.

May 18, 2020 in Death Event Planning, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases | Permalink | Comments (0)

Thursday, April 30, 2020

Remote Notarization Law Now Available in Massachusetts

WilltestamentThe number of states that have recently passed legislation to allow remote notarization for estate planning documents during the ongoing pandemic is quickly growing. Massachusetts is number 45 with Governor Baker signing the bill into law on April 27th.

There are certain guidelines that must be followed.

  • The allowance only lasts until three days after the end of the state of emergency, which has been extended to May 18th.
  • Only attorneys and paralegals under their supervision may notarize estate planning documents: wills, trusts, durable powers of attorney, and HIPAA releases.
  • All remote notarization sessions must be recorded and the recording saved for 10 years.
  • The notary must sign a supplemental affidavit verifying a number of facts, including that the person signing the documents and all the witnesses were in the state of Massachusetts.
  • The notarization is not effective until the notary receives and compiles all original signature pages, notarizes the document, and completes supplemental affidavit.

For the immediate future this is great news, but the question remains: why is this law not permanent? Also, why do all the witnesses need to be in Massachusetts? 

See Laura Goodman & Harry S. Margolis, Remote Notarization Law Now Available in Massachusetts, Margolis.com, April 28, 2020.

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

April 30, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, New Legislation, Wills | Permalink | Comments (0)

Thursday, April 16, 2020

Prudential Suspends Applications for Some Life Insurance Policies

InsuranceOne of the insurance industry's major players, Prudential, recently announced coronavirus-related changes that now limit American's choices for life insurance policies. The company said it would suspend its acceptance of applications for 30-year term life insurance policies due to “unprecedented market volatility” and “the anticipated low interest rate environment for the foreseeable future.” The suspension will be in place until at least June.

Prudential is the second-largest life insurer in the country based on net premiums written and the third-largest seller of individual life insurance based on new and recurring premiums. Les Masterson, managing editor at Insure.com, said it is quite possible other insurance companies could take steps of their own to limit risk, further limiting the choices of those seeking policies during this crisis.

When it comes to whether your insurance will pay out for deaths from coronavirus, experts at NerdWallet said most people are covered under traditional and term life insurance policies already in place.

See Brittany De Lea, Prudential Suspends Applications for Some Life Insurance Policies, Fox News, April 7, 2020.

April 16, 2020 in Current Affairs, Death Event Planning, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Thursday, April 9, 2020

The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic

DigitalGovernor Andrew Cuomo has signed various executive orders to address the issues faced by the state of New York and its residents during these unprecedented times as the country deals with the COVID-19 pandemic. On April 7, 2020, the Governor issued Executive Order 202.14 which modifies the laws concerning numerous documents pertaining to a person's estate plan.

The act of witnessing for the execution of certain instruments that is required under state laws is authorized to be performed utilizing audio-video technology. Those instruments include:

  • Last will and testament 
  • Lifetime trust
  • Statutory gifts rider to a statutory short form power of attorney
  • Real property instruments
  • Health care proxies
  • Instrument to direct the disposition of a person’s remains upon their death

See Cheryl L. Erato, The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic, nyestatelitigationblog.com, March 8, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Ira Bloom (Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School) for bringing this article to my attention.

April 9, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)

Sunday, April 5, 2020

Funerals are the Latest Part of American Life to Move Online

OnlinefuneralAmidst the current pandemic, the Center for Control and Prevention has urged funeral directors around the country to move funeral services online. So for the immediate future, even for those that did not die of the novel COVID-19 virus, people cannot hold an in-person memorial for their loved ones.

"Being a millennial on the internet, I've watched my fair share of livestreamed events, but it was sad for all the wrong reasons," 27-year-old Garrett Galindo said after having to watch his 82-year-old grandmother's funeral online. Isabel Cabrera Galindo was a social woman that died of natural causes. "It was sad that my grandmother, a woman known for her love of large gatherings, parties and get-togethers, would have her final service be in front of only 10 of her loved ones. It was sad that even with today's technology it was so difficult to hear her eulogy, and it was sad knowing we couldn't share those final moments together as a family." Many of her older friends could not even attend digitally due to a lack of knowledge of the technology.

With more than 7,000 deaths in the United States each day, many do not want to delay celebrating the lives of loved ones. But the new normal of today of social distancing makes those traditional celebrations impossible. People have criticized livestreamed religious services in the past for being an unsatisfying replica of the in-person experience and some feel the same way about bringing funeral online.

See Samantha Murphy Kelly, Funerals are the Latest Part of American Life to Move Online, CNN, March 23, 2020.

April 5, 2020 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0)

Sunday, March 29, 2020

Article on Reconceptualising the Law of the Dead by Expanding the Interests of the Living

BookofthedeadKate Falconer recently published an Article entitled, Reconceptualising the Law of the Dead by Expanding the Interests of the Living, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.

Despite its name, the Australian law of the dead — a term used here to refer to the common law governing the treatment and disposal of the body of a deceased person — has extraordinarily little to do with the recently deceased. Instead, it is traditionally (and narrowly) conceptualised from the perspective of the still-living, with post-death disputes — such as those relating to posthumous interferences with the corpse — being decided by reference to the person who holds the right to possession of the body of the deceased. In contrast, whilst her physical shell continues to play a role at law, from the moment of death onwards the deceased as a person is denied legal existence in the form of rights, interests, or duties. This paper challenges this traditional formulation of the law of the dead by bringing the interests of the deceased to the forefront. It does this by arguing that the law of the dead should be reconceptualised so that the holder of the right to possession of the body of a particular deceased person is considered to experience an expansion of their own personal set of interests; this expansion being equivalent to those interests held by the deceased in relation to her body during her life and continuing into a 'posthumous space' after her death.

March 29, 2020 in Articles, Death Event Planning, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Sunday, March 15, 2020

Article on Postmortem Defamation in a Society Without Truth for the Living

DefamationReid K Weisbord recently published an Article entitled, Postmortem Defamation in a Society Without Truth for the Living, Wills, Trusts, & Estates Law eJournal (2019).

Defamation law limits the private action for reputational injury to plaintiffs who are alive at the time of disparagement. In a novel reform proposal, Professor Don Herzog argues that we should extend defamation liability to disparaging statements about dead people. This Essay evaluates Herzog’s theory of postmortem reputational harm by focusing mainly on two counterarguments not addressed in his proposal: The first is that, since the election of President Trump, the modern political discourse has become so detached from the truth and callous about death that it is difficult to envision a moral obligation to protect postmortem reputational interests. The second distinguishes the consequentialist doctrine of testamentary intent from Herzog’s moral theory of postmortem defamation. This Review Essay concludes that, while society should indeed strive to recognize a moral obligation to protect decedents against reputational harm, we cannot do so without first restoring our commitments to truth-telling and respecting the solemnity of death.

March 15, 2020 in Articles, Current Events, Death Event Planning, Estate Planning - Generally, New Legislation, Technology | Permalink | Comments (0)

Tuesday, March 10, 2020

Article on Tax Incentives for Green Burial

Forest2Virginia J. Haneman recently published an Article entitled, Tax Incentives for Green Burial, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.

Every living being is doomed to decay and die and decay some more. Death is inevitable, and the disposal of our dead is a fundamental global activity with the potential to have significant environmental impact. In the United States, the environmental toxicity of “traditional” modern burial is stark. A cosmeticized body is pumped with three gallons of embalming fluid (containing chemicals such as formaldehyde) that eventually leaches through metal and wood and into the ground. An estimated 5.3 million gallons of embalming chemicals are buried annually in what are essentially luxury landfill-slash-golf-courses, with landscaping and grass to maintain and mow, in coffins that are typically constructed of nonbiodegradable chipboard. And while cremation is a more environmentally friendly alternative, incineration cremation falls short of being labeled “green.” Fire-based cremation utilizes significant resources and energy, attributable to the substantial quantity of fossil fuel required to burn human remains at 1,562° F (850° C) to reduce a corpse to ash. Pollutants are generated in doing so, including an average of 250,000 tons per year of carbon emissions and an estimated 320 to 6,000 pounds of mercury (from incineration of dental fillings) per year.

This tradition-steeped industry has projected domestic annual revenues of $68 billion (by 2023) and, interestingly, the industry has slowly started to “go green.” Changing the way in which one is buried will not solve the problem of climate change, but it does respect the notion that one’s last act on earth should not be to harm it. Industry norms are on the brink of disruption: the alt-death or death positive movement seeks to infuse the human experience back into death; there is capital investment into new innovative death service technologies, e.g. Funeralocity, WeCroak; and green death care tech startups are dramatically broadening available options for reintegrating human remains back into the environment in an eco-friendly manner. Unfortunately, a myriad of market failures and obstacles are impeding that disruption. This Article explores our modern disconnection from death, the transitioning of human remains in an environmentally friendly manner, the importance of pre-need or pre-death planning and prepayment to protect the grieving consumer, and the way in which tax incentives may be utilized to weave these ideas together in a cohesive plan for a green tax credit. A Pigouvian subsidy is proposed in the form of a refundable tax credit for qualified expenditures related to the nonrefundable prepayment of expenses arising from “sustainable disposition or transition of human remains.”

March 10, 2020 in Articles, Current Affairs, Death Event Planning, Estate Planning - Generally, Income Tax, Science | Permalink | Comments (0)