Wills, Trusts & Estates Prof Blog

Watch: Tips on Finding a Good Nursing Home

Finding a nursing home for yourself or a parent can be daunting. Many facilities are understaffed and the worker shortages have gotten worse since the start of the pandemic. KFF Health News senior correspondent Jordan Rau shares tips about finding nearby homes, evaluating staffing levels, what to look for when visiting, and more.

Watch the video here:

For more information see Jordan Rau "Watch: Tips on Finding a Good Nursing Home" KFFHealthNews.com, September 3, 2024.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

Grieving man refuses to give deceased wife's clothes to 'selfish' sister

A man took to Reddit to share his experience following the death of his wife from ovarian cancer. His wife, a corporate lawyer, had left instructions for her clothes to be donated to a women’s shelter she supported. During her illness, the man’s sister, whom he described as selfish and unsupportive, showed no interest in helping. However, after the wife’s death, the sister began asking for some of the clothes, claiming she wanted them as keepsakes. The man refused, noting that his wife had explicitly wished for the clothes to be donated.

The conflict escalated when the sister accused the late wife of being selfish even in death and criticized the decision to donate the clothes rather than keeping them within the family. The man, deeply offended, responded harshly, which led to his sister crying and their mother chastising him for his behavior. The mother suggested that the sister was grieving deeply and that the man should be more understanding, but he found this expectation unreasonable and left the situation feeling emotionally manipulated.

Seeking validation, the man turned to Reddit, where he received overwhelming support. Commenters criticized the sister’s behavior, agreeing that she had no right to demand the clothes and that her timing was highly inappropriate. A psychologist also weighed in, affirming that the man was not in the wrong and that he had no obligation to give away his late wife’s belongings unless he wished to do so. Many users encouraged him to focus on his own healing and to distance himself from his unsupportive family members.

For more information see Maureen Mackey "Grieving man refuses to give deceased wife's clothes to 'selfish' sister" Fox News, September 1, 2024. 

Why Americans are traveling to Vermont and Oregon to die

There is a growing trend of Americans traveling to Vermont and Oregon to access medical aid in dying, especially after these states removed their residency requirements in 2023. Francine Milano, a 61-year-old from Pennsylvania with terminal ovarian cancer, is highlighted as an example of someone who made multiple trips to Vermont to secure the right to end her life on her own terms. These trips are challenging, involving complex logistics and emotional strain, as patients must meet strict legal requirements, including being physically present in the state for medical assessments and drug administration.

In 2023, at least 26 out-of-state patients died using Vermont's medical aid-in-dying law, and 23 in Oregon. Despite the growing demand, the process remains burdensome, with patients needing to navigate unfamiliar healthcare systems, travel while gravely ill, and find places to stay during the waiting period before they can receive the medication. Advocates argue that these restrictions place an undue burden on already suffering individuals, while opponents, including some religious groups and medical professionals, view assisted dying as immoral or contrary to the role of healthcare.

The article notes that while several states have considered similar legislation, only Delaware passed such a law in the 2023-24 legislative session. The topic remains a contentious issue, with no federal resolution in sight, leaving it to be addressed state by state.

For more information see Debby Waldman "Why Americans are traveling to Vermont and Oregon to die" CBS.com, August 20, 2024.

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

Alain Delon’s family refuse to put down pet dog the actor wanted to be buried with

French actor Alain Delon, renowned for his roles in classics like "The Leopard," passed away at the age of 88. Before his death, Delon had expressed a heartfelt wish for his Belgian Shepherd dog, Loubo, to be euthanized and buried alongside him. In a 2018 interview, he described Loubo as his "end-of-life" companion and spoke of their deep bond, stating he wanted the dog to be put to sleep in his arms if he died first. This request, however, sparked significant controversy in France, particularly among animal welfare organizations.

Following the public outcry, Delon's family decided not to honor his unusual request. They confirmed that Loubo would remain with the family at Delon's Douchy residence. French animal welfare groups, including the Brigitte Bardot Foundation and the Society for the Protection of Animals (SPA), had strongly opposed the idea, arguing that an animal's life should not be conditional on that of a human. These organizations also offered to help find a new home for Loubo if needed, ensuring the dog would continue to live in good health.

For more information see Niamh Kennedy "Alain Delon’s family refuse to put down pet dog the actor wanted to be buried with" CNN.com, August 21, 2024.

Inheritance on hold? Most Americans don't understand the time and expense of probate

A report titled The State of Probate in America reveals that many Americans are poorly informed about probate. A survey of 1,000 adults showed that over half don't know probate costs, less than half understand inheritance is not automatic, and only 2% know how long it takes to settle an estate, which averages 20 months.

Probate costs range from 3% to 7% of an estate's value. With a significant generational wealth transfer expected as baby boomers age, there is concern that millennials, many of whom are unprepared, will face confusion. Only 58% of millennials have discussed estate planning with older relatives, and 62% lack a will or trust.

Probate varies by state and even within states, complicating the process. Experts recommend creating an estate plan, consulting an attorney if possible, discussing wills with family, and naming beneficiaries to streamline the process. Preparing an estate-planning file with important documents and information can also ease the burden on loved ones.

For more information see Daniel de Visé "Inheritance on hold? Most Americans don't understand the time and expense of probate," USA Today, July 30, 2024. 

Special thanks to Naomi Cahn (University of Virginia School of Law) for bringing this article to my attention.

Article: The Law of Digital Resurrection

Victoria J. Haneman (Creighton University - School of Law) recently published, The Law of Digital Resurrection, 2024. Provided below is an Abstract:

The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the deceased and dynamically learns with increased communication. There is no legal or regulatory landscape against which to estate plan to protect those who would avoid digital resurrection, and few privacy rights for the deceased. This is an intersection of death, technology, and privacy law that has remained relatively ignored until recently. This Article is the first to respect death as an important and distinguishing part of the conversation about regulating digital resurrection. Death has long had a strained relationship with the law, giving rise to dramatically different needs and idiosyncratic legal rules. The law of the dead reflects the careful balance between the power of the state and an individual's wishes, and it may be the only doctrinal space in which we legally protect remembrance. This Article frames the importance of almost half of a millennium of policy undergirding the law of the deceased, and proposes a paradigm focused upon a right of deletion for the deceased over source material (data), rather than testamentary control over the outcome (digital resurrection), with the suggestion that existing protections are likely sufficient to protect against unauthorized commercial resurrections.

How One Elder Law Attorney Bridges The Generation Gap

Elder law attorneys have a tough gig. They must manage their clients (the elders) and their kids (who assist in the process), as well as their staff, who themselves range in ages. That’s why Above the Law invited veteran elder law attorney, Jamie Haroutunian of Priority Law, onto the Non-Eventcast podcast — to talk over how he juggles it all.

Jamie started things out by talking over the rebrand of his law firm, when he converted to a trade name. Next, Jamie discussed how he manages younger and more experienced staff, including around how the team assesses clients. After that, Jamie relayed how he pushed for automating processes in his practice, especially for scheduling meetings and taking payments. Jamie also discussed how the firm conducts meetings with members of various generations attending, as well as how he uses visual aids to assist in the process.

For more information see Jared Correia "How One Elder Law Attorney Bridges The Generation Gap", Above the Law, July 9, 2024.

Study Suggests Waiting Longer Before Withdrawing Life Support

Decisions regarding the withdrawal of life support for patients with traumatic brain injury are often pressured by hospitals around the 72-hour mark, though research suggests this may be too soon. A study by Mass General Brigham, published in the Journal of Neurotrauma, indicates that some patients might recover a degree of independence within months if given more time. The unpredictability of recovery makes it challenging for families to make informed decisions about life-sustaining treatment soon after an injury.

The study analyzed over seven years of data from 1,392 patients in U.S. trauma centers, focusing on those who required life support. By comparing matched pairs of patients—one group who had life support withdrawn and another who continued—researchers found that many who had life support withdrawn might have died regardless. However, a significant proportion could have achieved some level of independence within six months if life support had not been withdrawn. The study also noted that remaining in a vegetative state was an unlikely outcome six months post-injury, suggesting that early withdrawal might prematurely end recoverable lives.

Demographic analysis of the study revealed that patients who had life support withdrawn were typically older and less likely to be Black or Hispanic. The findings highlight the importance of delaying life support decisions to better predict patient outcomes and avoid a self-fulfilling prophecy where poor prognosis leads to withdrawal, increasing poor outcomes. Despite its small sample size, the study's insights are considered valuable. Experts like Dr. Walter Koroshetz stress that longer waiting periods allow for better understanding of recovery potential, emphasizing the need for cautious decision-making in life support withdrawal.

For more information see Gina Kolata "Study Suggests Waiting Longer Before Withdrawing Life Support", The New York Times, May 17, 2024. 

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

Grief, Then Paperwork: The Messy, Thankless Job of an Estate Executor

Managing the estate of a deceased relative is a challenging and time-consuming task that can strain relationships. The executor, usually named in the will, must handle assets, debts, taxes, and distribution to heirs. This role often comes unexpectedly and is burdensome.

Greg Kern, for example, spent over 200 hours managing his father-in-law’s $430,000 estate, causing family tensions. Many underestimate the time and cost involved, often requiring legal assistance, which can be expensive and lengthy. Without a will, complications and delays are common. Executors are sometimes unwilling or surprised by their appointment. Estate lawyers advise choosing capable and willing executors, considering impartial third parties to avoid family conflicts. Kern’s experience involved significant paperwork and family disagreements, particularly regarding the sale of a house. He faced challenges closing financial accounts and dealing with legal requirements, such as obtaining special certifications.

In cases without a will, the process can be more complex. Pat Kayajanian’s estate, managed by her stepdaughter, faced delays and legal hurdles due to the lack of a will and stepfamily status. Similarly, Violet Shockley's executor struggled to locate all heirs.

Issues also arise when minors inherit. Texas law requires court-appointed attorneys to assess the suitability of the surviving spouse as an administrator, adding months to the process. Charlotte Sanders, whose husband died without a will, faced delays accessing funds and had to navigate court requirements to protect her children’s interests.

Managing an estate is often a thankless, complicated job requiring significant effort and legal navigation.

For more information see Ashlea Ebeling "Grief, Then Paperwork: The Messy, Thankless Job of an Estate Executor", The Wall Street Journal, June 29, 2024.

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

Warren Buffett Gives Us a Preview of His Will

In an interview with The Wall Street Journal, Buffett—the chairman and chief executive of Berkshire Hathaway—said that after his death nearly all of his remaining wealth will go to a new charitable trust overseen by his daughter and two sons. The legendary investor also made clear his giving to the Bill & Melinda Gates Foundation, to which he has donated billions, will come to an end. 

His three children must decide unanimously which philanthropic purposes the money then goes to serve. Buffett, who is 93 years old, said he hasn’t laid out marching orders for Susie, Howie and Peter Buffett. But he shared his personal perspective about giving. Buffet instructed his children to "help the people that haven't been as lucky as we have been" and has done so already through the Gates Foundation, as well as 4 other foundations connected to his family. 

Buffett served as a trustee of the Gates Foundation until 2021; he resigned less than two months after the couple announced their plans to divorce. Melinda French Gates recently resigned from the foundation, with her last day earlier this month. Buffett declined to say how long his estate plan had been in place. He described its contours in a November press release about supplemental gifts of Berkshire shares to the four family foundations. 

For more information see Karen Langley "Warren Buffett Gives Us a Preview of His Will", The Wall Street Journal, June 28, 2024.

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