Wills, Trusts & Estates Prof Blog

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

Friday, October 11, 2019

Article on The ‘Social Contract’, Care and Inheritance in England and Hong Kong

England flagBrian Sloan recently published an Article entitled, The ‘Social Contract’, Care and Inheritance in England and Hong Kong, Elder Law eJournal (2019). Provided below is an abstract of the Article.

In common with much of the world, the populations of both England and Hong Kong are ageing. One of the most important questions of our age is therefore how to allocate the burdens of providing and funding the care that increasing numbers of people are likely to need. Another vital question affecting the elderly and their families is that of inheritance: how legitimate is the claim of family members (including adult children) to a person’s assets? The aim of this paper is to explore the relationship between these questions, with reference to concepts such as the ‘social contract’ and family solidarity, and the law of family provision in England and Hong Kong.

October 11, 2019 in Articles, Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Wednesday, October 9, 2019

Financial Scams Targeting the Elderly Are Rising. Advisors Offer Precautions

ScamsScammers pull in billions of dollars every year by targeting the elderly, as much as $36.5 billion annually, and often the victims are too embarrassed and ashamed to mention it to their families. “One of the reasons parents don’t tell us when they may have fallen victim or come close is that they fear [their children will] pack up their home and they’ll lose their independence,” explains Ron Long, head of Wells Fargo’s Elder Client Initiatives Center of Excellence. 

Adult children should broach the subject of their parents' increased vulnerability and impulsiveness tactfully. Amy Nofziger, director of fraud victim support at AARP, says that children should adopt an attitude of non-judgement and empathy when approaching the conversation. Communication lines should remain open between parents and children so the dialogue can established before they are scammed, and then the adult child can bring up other kinds of security concerns. If the familial water are troubled, bring in a trusted intermediary such as a financial advisor or cleric.

Basic technology can be confusing to those who may have already passed middle age by the time cellphones and email had become commonplace. Offer to make sure their security software is up to date, including firewalls and encryption applications. Remind them not to carry their Social Security card in their wallets.

See Steve Garmhausen, Financial Scams Targeting the Elderly Are Rising. Advisors Offer Precautions, Barron's, October 3, 2019.

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

October 9, 2019 in Current Events, Elder Law, Estate Planning - Generally, Technology | Permalink | Comments (0)

Tuesday, October 8, 2019

California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

AnnaCalifornia Governor Newsom signed Assembly Bill 328 on June 26, 2019 and will be effective on January 1, 2020, which hopes to close loopholes that allow scheming caregivers to marry the adults that are dependent on them. The Legislation creates a rebuttable presumption of undue influence in two scenarios: transfers to care custodians who Marry dependent adults and care custodians who make "omitted spouse" claims.

The Bill applies to “dependent adults,” who are defined as an adult of any age who cannot provide properly for his or her basic needs or who has difficulty managing his or her financial resources or resisting fraud or undue influence. If a donative transfer of property occurs or an instrument that does so is executed within six months of a caregiver marrying or cohabitating with a dependent adult, the caregiver must through clear and convincing evidence that there was no fraud or undue influence.

If there is no donative transfer or the newly minted spouse is not mentioned in the will, the caregiver was once allowed to claim an omitted spouse share of the decedent's estate. California law states that if a decedent does not update a will after a marriage, the omitted spouse is entitled to a third of the estate under California Probate Code section 21610 and section 21611. The Bill amends section 21611 so that care custodians who marry dependent adults cannot make “omitted spouse” claims if the dependent adult dies less than six months after the marriage occurred.

See Jeffrey S. Gavin, California Legislature Cracks Down on Caregivers Who Marry Dependent Adults, September 16, 2019.

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

October 8, 2019 in Current Events, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

Wednesday, October 2, 2019

Article on The Kindest (Tax) Cut: A Federal Tax Credit for Organ Donations

OrgandonationSally Satel & Alan D. Viard published an Article entitled, The Kindest (Tax) Cut: A Federal Tax Credit for Organ Donations, Tax Law: Tax Law & Policy eJournal (2017). Provided below is an abstract of the Article.

We discuss how to design a federal tax credit for organ donations that would help ease the pressing shortage of donated kidneys, saving thousands of lives and sparing many from dialysis.

October 2, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, New Legislation, Science | Permalink | Comments (0)

The Longevity Files: A Strong Grip? Push-ups? What Actually can Help You Live to a Ripe Old Age

ExerciseThere are certain physical feats that can increase your chances of living a long life, including being able to perform 50 pushups, going from sitting on the floor to standing without the use of your hands, having an overall firm grip, or increasing your walking speed. But each of these skills have the message in the end: strength, nimbleness, and overall health.

Generally, fit people can walk faster, perform more pushups, and easily stand up from sitting cross-legged on the floor compared to a frail person. “There’s no question that exercise is the biggest anti-aging medicine there’s ever going to be — it’s really huge,” Gordon Lithgow says, chief academic officer at Buck Institute for Research on Aging. Michael Joyner, a physician and human physiology researcher at the Mayo Clinic, states that even just 10 to 15 minutes of exercise per day can be beneficial. The measurable benefits plateau after a person reaches an hour a day, meaning if they are exercising for longer than 60 minutes they are doing it for another reason other than longevity.

And exercise keeps your brain healthy, too. “Exercise has better effects on cognitive performance than sitting around playing brain games,” Stanford Center on Longevity founding director Laura L. Carstensen says. A 2006 study in Neuroscience found that exercise spurs the brain to release growth factors that promote new connections between neurons, contributing to the brain's health. There is even research suggesting that strength training can reverse some age-related changes in your muscles.

See Christie Aschwanden, The Longevity Files: A Strong Grip? Push-ups? What Actually can Help You Live to a Ripe Old Age, Washington Post, September 28, 2019.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

October 2, 2019 in Current Affairs, Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Wednesday, September 25, 2019

Article on Avoiding Roth IRA Taxing Tax Traps

IRASeymour Goldberg recently published an Article entitled, Avoiding Roth IRA Taxing Tax Traps, Ed Slott's IRA Advisor, October 2019. Provided below is the introduction to the Article.

Roth IRAs and other Roth plans offer tax-free cash flow to account owners and beneficiaries, once the age (59½) and holding period (five years) requirements have been met. However, tax code technicalities could lead to the taxation of all distributions of inherited Roth assets. Fortunately, certain steps can reduce that risk.

September 25, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, September 10, 2019

Article on Freedom and Fairness in Retirement Villages: An Analysis of the Regulatory Framework

FairscalesJulia Marshall-Mead recently published an Article entitled, Freedom and Fairness in Retirement Villages: An Analysis of the Regulatory Framework, Elder Law eJournal (2019). Provided below is an abstract of the Article.

New Zealand’s ageing population has contributed to the rapid expansion of the retirement village sector and will continue to do so in coming decades. It is therefore essential that the regulatory framework governing retirement villages be fit for purpose and that it meet its policy objective of protecting retirement village residents’ rights and interests. The regulatory framework has not been subjected to a comprehensive review since the enactment of the Retirement Villages Act 2003. This paper analyses the degree to which the regulatory framework has achieved its aims. It draws on data from interviews with residents and management from retirement villages to identify ways in which the regulatory framework could be altered to better balance the rights of residents and operators. It proposes amendments to the framework to ensure that residents thoroughly understand their contracts with retirement village operators, and to provide for fairer provisions around the financial terms the contracts may contain. It also recommends the establishment of an independent advisory facility to support residents and intending residents both prior to and after their entry into villages.

September 10, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, September 7, 2019

CLE on Probate Process: Quick Timeline Overview and Checklist

CLEThe National Business Institute is holding a teleconference entitled, Probate Process: Quick Timeline Overview and Checklist, on Thursday, September 12, 2019, at 1:00 pm to 2:30 pm Central. Provided below is a description of the event.

Understand and Follow the Key Steps

Do you have a clear view of probate process from start to finish? This concise guide will quickly take you through all the crucial stages of the process. Experienced faculty will provide essential forms and checklists to ensure no stone is left unturned. Register today!

    • Get a bird's eye view of probate administration.
    • Come away with a master checklist of deadlines, tasks, and necessary forms.
    • Save time on marshalling and inventory of assets with practical tips from faculty.

Who Should Attend

This program is designed for attorneys. Accountants, trust administrators, estate planners, tax professionals, and paralegals may also benefit.

Course Content

    • The Small Estate Qualifications and Timeline
    • The Formal Probate Procedure - What Must be Done and When
    • The First 48 Hours and Initial Notices to Creditors, Beneficiaries and State Agencies
    • Locating the Will and Beneficiaries and Proving the Will
    • Asset Marshalling and Inventory Forms and Tasks
    • Key Tax Deadlines, Forms, and Extensions
    • Executor Duties (Master Checklist and Forms)

September 7, 2019 in Conferences & CLE, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Thursday, September 5, 2019

Optimism Key to Living Longer? This Study Says So

HappyA study of more than 69,000 female health professionals ages 58 to 86, and more than 1,400 male veterans ages 41 to 90, who were followed for 10 to 30 years, concluded that a sunny disposition may indeed lengthen your life. The participants who reported the highest levels of optimism were 50% to 70% more likely to live to age 85 or beyond.

The results were steady even when researchers took into account other factors including health conditions such as heart disease, cancer or depression. But other health behaviors such as smoking, excessive drinking, or poor diets lessened the link, possibly due to the fact that optimistic people are more inclined to have positive health habits. In other words "optimism may foster health-promoting habits and bolster resistance of unhealthy impulses," the authors, from Boston University School of Medicine, wrote in their study, published August. 26 in the journal Proceedings of the National Academy of Sciences.

The study only shows an association between longevity and optimism, not a certainty. The study mainly included white people with a high socioeconomic status and did not factor in whether participants had lost a job or experienced the death of a loved one, which could also affect the results. More studies are needed, the authors concluded, to determine if optimism truly benefits short and long term health.

See Rachael Rettner, Optimism Key to Living Longer? This Study Says So, Fox News, September 2, 2019.

September 5, 2019 in Current Events, Elder Law, Estate Planning - Generally, Science | Permalink | Comments (0)

Thursday, August 29, 2019

Article on For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts

HarvardNina A. Kohn recently published an Article entitled, For Love and Affection: Elder Care and the Law's Denial of Intra-Family Contracts, 54 Harv. C.R.-C.L. L. Rev. 211-256 (2019). Provided below is an abstract of the Article.

As the U.S. population ages, demand for care providers for older adults is rapidly growing. Although the law's treatment of care contracts between older adults and their family caregivers has substantial implications for the country's ability to meet this demand, there has been no prior empirical examination of the law's current treatment of such agreements. This Article fills that gap by assessing how courts and other legal actors treat intra-family agreements to pay family members for elder care. A look into a long-ignored area of case law--Medicaid eligibility determinations--reveals that courts, administrative law judges, and state regulators typically attach little or no monetary value to elder care provided by family members. Rather, payments for caregiving are routinely treated as fraudulent transfers. The result is that, in the name of combatting Medicaid fraud, states penalize older adults who pay for their own care.

Treating family-provided elder care as lacking monetary value stands in sharp contrast to the high cost of elder care purchased on the open market and is at odds with states' increased willingness to directly pay family care providers. This Article shows that this incongruence can be partially explained by public distaste for Medicaid planning and distrust of agents acting on behalf of older adults. Entrenched stereotypes about care work and related expectations about familial care also contribute to the law's refusal to recognize these agreements and the economic value of care provided under them.

This Article offers lessons for social policy, legal theory, and legal practice. On a policy level, it shows that states are engaged in counterproductive behavior that will discourage the very type of family care they purport to encourage. On a theoretical level, it indicates that attitudes toward care work and courts' willingness to enforce contracts between family members have not changed to the extent commonly described by family law scholars. Finally, at a practical level, it suggests that attorneys should adapt the advice they give clients to better account for distrust of agents.

August 29, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)