Monday, November 11, 2019
Cars' front man Ric Ocasek, 75, passed away in September while recovering from a recent surgery and was found by his estranged wife, Paulina Porizkova, when she was bringing him coffee. Though this act is undeniably sweet, the two were in the middle of a divorce after being married for 28 years. Citing this, Ocasek laid out in his will that his wife was not to receive any portion of his estate, “Even if I should die before our divorce is final … Paulina is not entitled to any elective share … because she has abandoned me.”
A filing listed with Ocasek’s will show that his assets include $5 million in “copyrights," just $100,000 in tangible personal property and $15,000 in cash. This amount may seem low for a rock legend, but the copyrights were not detailed, and there may more stashed away in trusts to protect his privacy.
His wife was not the only one that appeared to get the short end of the stick - two of his six sons also were not designated as beneficiaries. But they may have been compensated in other ways, either before his death or through a trust.
Ocasek signed the will on Aug. 28, less than a month before his death, and the executor is named as his “friend and business manager,” Mario Testani.
See Priscilla DeGregory and Aaron Feis, Cars Singer Ric Ocasek Cuts Supermodel Wife Paulina Porizkova Out of Will, Page Six, November 7, 2019.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) and Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) for bringing this article to my attention.
Adriona Horton recently published a Case Note on Disability Law Center of Alaska v. Davidson, NAELA Journal Online, July 2019. Provided below is an introduction to the Case Note.
On March 28, 2018, the U.S. District Court for the District of Alaska, in Disability Law Center of Alaska v. Davidson denied defendants’ motion for summary judgment on plaintiffs’ three Title 42 U.S.C. § 1983 claims alleging that defendants were in violation of federal Medicaid law by failing to do the following:
- Provide adequate notice on how to apply for and access applied behavioral analysis (ABA) therapy under the Alaska early and periodic screening, diagnostic, and treatment (EPSDT) program;
- Reimburse for ABA under the program; and
- Provide ABA services under the program with reasonable promptness.
Plaintiffs’ cross-motion for summary judgment was granted as to their claim that defendants were required to provide ABA services as part of the state EPSDT program and that the Centers for Medicare & Medicaid Services (CMS) was not authorized to relieve them of that obligation.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Sunday, November 10, 2019
Ashton Kutcher and his wife, Mila Kunis, stated recently that they plan to leave their children nothing, instead giving any money they have earned from Hollywood or their investments to charity, including sex-trafficking causes. Kutcher has invested in several tech companies with his venture capital firm A-Grade Investments, so he understands that his children are already living what he believes is a "privileged life." He specifically said that they will not be receiving any trust funds.
Half of people that are destined to receive an inheritance receive $50,000 or less, and 30% will receive between $50,000 and $249,000 according to Federal Reserve data. Completely cutting off children is an unorthodox approach; teaching them positive life-long habits that can contribute to more beneficial payoffs may be more proactive, and could bloom into long-term financial security.
See Mitch Tuchman, Why Ashton Kutcher is Leaving Nothing to his Kids, Market Watch, November 9, 2019.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Friday, November 8, 2019
Article on Private Land Conservation and Public Policy: Land Trusts, Land Owners, and Conservation Easements
Dominic P. Parker & Walter N. Thurman recently published an Article entitled, Private Land Conservation and Public Policy: Land Trusts, Land Owners, and Conservation Easements, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
We highlight the extraordinary growth in private conservation via land trusts and conservation easements and describe the problems arising from the interplay of public finance and private decisions. We offer a framework for understanding the popularity of easements and land trusts and for evaluating policy reforms aimed at improving their performance. The framework, grounded in institutional and organizational economics in the tradition of Ronald Coase, Oliver Williamson, and Yoram Barzel, focuses on the measurement and monitoring costs faced by public and private stakeholders under current and prospective policy arrangements. We illustrate how the framework can be applied to contemporary debates about the appropriate tax treatment of donated easements, requirements that they be held in perpetuity, and the extent to which government should regulate private land trusts.
Tuesday, November 5, 2019
Washington, DC, November 4, 2019: The American College of Trust and Estate Counsel (ACTEC) today released a ten-part, topic-based podcast series on Charitable Giving, offering the expertise of Fellows who provide best practice advice, insights and commentary on subjects relevant to those in the wealth management profession.
Fellows of ACTEC’s Charitable Planning and Exempt Organizations Committee consider all aspects of charitable planning and charitable giving including charitable deductions, private foundations, excise taxes, Charitable Remainder Trusts (CRT), Charitable Lead Trusts (CLT), Charitable Gift Annuities, individual Donor-Advised Funds (DAF) and charitable pledges. The committee regularly reviews and discusses tax and other issues affecting charitable organizations including public charities and endowment matters.
The feature series debuts at ACTEC Trust and Estate Talk, a weekly podcast created for trust and estate management professionals. Listeners can subscribe at iTunes, SoundCloud, Stitcher, Spotify, and Google Play.
“The ACTEC Charitable Giving series offers attorneys and their clients accessible information about significant aspects of charitable giving from experts in those areas,” said Susan Snyder, ACTEC Fellow and Executive Producer of ACTEC Trust and Estate Talk. “Attorneys can share the podcast links with clients who would like more information to help inform their charitable planning decisions.”
ACTEC’s podcast series will feature the following:
- Basic Charitable Giving with ACTEC Fellow Glenn G. Fox
- An Introduction to Individual Charitable Deductions with ACTEC Fellow Robert P. Goldman
- A Primer on Private Foundations with ACTEC Fellow John McGown, Jr.
- An Introduction to Private Foundation Excise Taxes with ACTEC Fellow Neil T. Kawashima
- Charitable Remainder Trusts (CRT) with ACTEC Fellow Matthew G. Brown
- A Primer on Charitable Lead Trusts (CLTs) with ACTEC Fellow Kirk A. Hoopingarner
- Charitable Gift Annuities with ACTEC Fellow Roger Shumaker
- Deferred and Flexible Charitable Gift Annuities with ACTEC Fellow Brad Bedingfield
- An Introduction to Individual Donor-Advised Funds (DAF) with ACTEC Fellows Edward J. Beckwith and Christopher R. Hoyt
- An Introduction to Charitable Pledges with ACTEC Fellows Reynolds T. Cafferata and William Finestone
Procrastination seems to always invite disaster, and even when something appears to be simple, waiting until the last minute can cause mistakes. A California court had to decide an issue that dealt with procrastination: What happens when a settlor does not fully comply with the trust instrument’s modification procedure, even though it’s highly obvious that he intended to amend his trust?
The California Court of Appeal decided recently in Pena v. Dey (2019) 39 Cal.App.5th 546 that the issue must be faced with strict compliance of the trust's modification procedures, which indicated that any amendment “shall be made by written instrument signed by the settlor and delivered to the trustee.” James Robert Anderson created the trust in 2004, making himself both settlor and trustee. He executed an amendment in 2010, and shortly afterwards was diagnosed with cancer. James called an attorney in early 2014 to amend his trust so as to add Grey Dey, a friend that had been assisting him, as a beneficiary. The attorney told him to send him the trust documents with all necessary changes, and he received the interlineations in March 2014 with a Post-it note, on which James wrote: “Hi Scott, Here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob.” Sadly, James passed away in May before he could review and sign the second amendment.
Margaret Pena, the successor trustee, petitioned the trial court for instructions as to whether the interlineations constituted a valid amendment. The trial court granted the trustee's motion for summary judgement, holding tight to the trust amendment formality requirements. The appellate court affirmed the trial court's decision, finding that the written document itself had not been signed and that the Post-It® Note could not provide for the missing signature line.
See Christopher Miles Kolkey, Don’t Rely on a Post-It® Note to Amend Your California Trust, Trust on Trial, October 28, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) for bringing this article to my attention.
Monday, November 4, 2019
Anna Mclean recently published an Article entitled, Fusion: Can It Encompass the Trust? An Assessment in Light of the Trusts Bill 2017, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
This paper applies the fusion debate to the most recent reform of the law of trusts in New Zealand, the Trusts Bill. The fusion debate centres around whether a distinct role for equity is needed, or whether the common law and equity can integrate to form one unitary body of law. It aims to achieve coherence in the law – where equitable and common law doctrines aim to achieve the same objectives, it is incoherent to maintain reference to two distinct sets of rules. The Trusts Bill is analysed in light of this – can equity’s traditional flexibility and conscience-based approach be seen in the Bill and in the wider reform process? These values are often used to differentiate between equity and the common law. This paper argues that the Trusts Bill does take incremental steps towards fusing common law and equity even in relation to the trust, traditionally the heartland of a distinct equitable jurisdiction. Flexibility and conscience-based reasoning do not differentiate the law of trusts as seen in the Trusts Bill from common law doctrines. The shift towards a statutorily-defined framework, the language used throughout the Bill and the underlying rationale behind reform all show incremental steps towards fusion occurring even if complete fusion cannot yet be seen. The future of fusion is left to the courts, but the Trusts Bill shows increasing fusion even in this area of the law is possible.
Saturday, November 2, 2019
People of all tax brackets seems to revile the federal estate tax but are enchanted by a proposed wealth tax. They both appear to slow down wealth inequality by taxing a low number of highly fortunate Americans, so why the difference in affections? Could it be simply that the estate tax has been in force for an extended amount of time while the wealth tax is shiny and new?
Both Elizabeth Warren and Bernie Sanders have proposed net worth taxes, which is how wealth taxes are usually defined. In April, Quinnipac University conducted a poll that found that 60% of respondents liked the idea of a 2% annual tax on “wealth over $50 million”; 34% opposed the idea. However, Quinnipac also ran a survey in November of 2017 and found that 48% of respondents in support of estate tax repeal while 43% wanted it to stay in place.
When the estate tax exemption was first created in 1942, it was set at $60,000 - equivalent just below $1 million today - and stayed there for a whopping 34 years. By the time lawmakers increased the estate tax exemption in 1976, that $60,000 exemption was worth about a quarter of what it had been in 1942. Opponents fought it on different grounds, including double taxation, and it was even repealed in 2001, only to be brought back from the grave just 10 years later. With the amount the exemption is at today, 99.4% of estate are exempt from it. This means that the top 10% of American income earners pay more than 90% of the estate tax; almost 40% is paid by the richest 0.1%.
See Joseph Thorndike, Why Do People Hate Estate Taxes But Love Wealth Taxes?, Forbes, October 30, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Friday, November 1, 2019
Lloyd Bonfield, Joanna L. Grossman, and William P. LaPiana recently published a Book entitled, Wills, Trusts, and Estates: A Contemporary Approach, West Academic (2019). Provided below is a summary of the book.
This casebook is designed to present in a comprehensive yet streamlined fashion the law of Wills, Trusts, and Future Interests to 21st–century law students. It assists the student in developing an understanding of the core legal concepts critical to a grasp of wills, trusts and future interests in a novel format that is clear and easy to understand, while maintaining the intellectual rigor of the subject. The book covers the standard topics, but is organized in an innovative fashion. It begins with an estate planning problem which introduces the student to the craft of the practitioner, providing context for the introduction of substantive law. It then presents the law of wills law by reference to the law governing the testator, the document and the property. Attention is given to non-probate transfers, and in particular, the law of trusts, private and charitable. A model trust instrument is also provided. It concludes with a comprehensive look at future interests and the rule against perpetuities. As with other books in the Interactive Casebook Series, it challenges students to think about issues raised by the cases as they are considered in the opinion through the use of text boxes. The accompanying electronic version allows students immediate access to the full text of cited cases, statutes, articles, and other relevant materials.
Tuesday, October 29, 2019
The Peak Trust Company is presenting a webinar entitled, Shielding Estate Plans Against Litigation Webinar: Proactive Steps to Take Now, on Tuesday, November 12, 2019, from 2:00 p.m. to 3:00 p.m. Provided below is a description of the event.
Litigation relating to estate planning seems to be increasing all over the country, and it is not limited to large estates. Proactive steps can be taken now to drastically reduce the chances of your clients' wishes being challenged. Some of the topics we will cover include:
- Reducing the chances a disgruntled beneficiary will attack your client's estate plan
- Increasing the chances that the estate plan will be successfully defended using discretionary trusts, no-contest clauses, and conditional distributions
- Common litigation scenarios and how to avoid them
- Anticipating challenges based on dementia, lack of mental capacity, and undue influence
- Dealing with beneficiaries’ spouses and divorces
- Protecting against mismanagement by trustees and trust advisors
- Using statements of intent and overcoming adverse presumptions