Wills, Trusts & Estates Prof Blog

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

Tuesday, May 21, 2024

The American College of Trust and Estate Counsel Releases 300th Podcast

The following is from an ACTEC press release:

Washington, DC, May 21, 2024: The American College of Trust and Estate Counsel (ACTEC) today released its 300th podcast in the ACTEC Trust and Estate Talk series, titled "Estate Planning in 2024." ACTEC Fellow and Past President Stephen R. Akers of Dallas, Texas, delivers this special podcast, discussing key issues in estate planning in 2024, including grantor trusts and income tax reimbursement, gift tax implications of trust modifications, and Section 2519 and QTIP trusts. The ACTEC Trust and Estate Talk Series is sponsored by the ACTEC Foundation.

In 2018, ACTEC Fellow Susan D. Snyder, who now serves as ACTEC's President (20242025), introduced the ACTEC Trust and Estate Talk podcast series concept to the ACTEC Communications Committee. She served as the series' first executive producer, with the goal of providing an educational resource for ACTEC Fellows, wealth and estate management professionals, and aspiring attorneys. Susan shares, "Reaching our 300th podcast is a significant milestone for this Series and for ACTEC. The podcasts have been downloaded over 575,000 times and have greatly enhanced the visibility of the College among ACTEC Fellows, law students, and trust and estate practitioners."

The first podcast in this series, “What Should Attorneys Have in Their Engagement Letters?” was issued on February 20, 2018. The full ACTEC Trust and Estate Talk library is available on The ACTEC Foundation website.

About The American College of Trust and Estate Counsel (ACTEC): Established in 1949, The American College of Trust and Estate Counsel (ACTEC) is a national, nonprofit association of approximately 2,500 lawyers and law professors from throughout the United States and abroad. ACTEC members (Fellows) are peer-elected on the basis of professional reputation and expertise in the preparation of wills and trusts, estate planning, probate, trust administration and related practice areas. The College’s mission includes the improvement and reform of probate, trust and tax laws and procedures and professional practice standards. ACTEC frequently offers technical comments with regard to legislation and regulations but does not take positions on matters of policy or political objectives.

About The ACTEC Foundation:  The ACTEC Foundation is the philanthropic arm of The American College of Trust and Estate Counsel or ACTEC. The Foundation is a nonprofit, 501(c)(3) that offers education to families and professionals and supports students interested in the trust and estate area of the law. Through continued financial support, The ACTEC Foundation offers professional development, scholarships and education for a number of important efforts, including legal education, educational support, public initiatives, legal publications and the student editorial board.

May 21, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Article: Inheriting Intangibles: Exploring Copyright Erosion Through Succession via Wills

Isaiah Burroughs (Independent) recently published, Inheriting Intangibles: Exploring Copyright Erosion Through Succession via Wills, 2024. Provided below is an Abstract:

Under current copyright law, the holder enjoys copyright protection for the duration of the author's life, extended by seventy years. However, the question arises: who assumes ownership of post-mortem copyright, and to what extent do their rights extend? Unless the recipient possesses legal or artistic insight, this transition can often represent a forfeited chance for intergenerational wealth exchange. Moreover, it might lead to a loss of creativity and innovation within society at large. This comment delves into potential remedies for this issue. Specifically, it explores how we might address this challenge and proposes an examination of diverse policy considerations aimed at fortifying post-mortem copyright regulations.

May 21, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Monday, May 20, 2024

Article: Reforming the Singapore Trust: Pushing or Breaking Boundaries?

Jeremiah Lau Jia Jun (National University of Singapore - Faculty of Law) and Kelvin F.K. Low (National University of Singapore - Faculty of Law) recently published, Reforming the Singapore Trust: Pushing or Breaking Boundaries?, 2024. Provided below is an Abstract:

This chapter assesses the various enacted and proposed legislative reforms to Singapore’s trust law in the new millennium, including the Business Trusts Act, the Trust Companies Act and the amendments to the Trustee’s Act. We also consider the recent proposal to introduce non charitable purpose trusts. The tricky process of law reform is an interesting setting in which to consider various ‘boundary problems’ in trusts. Can statutory reform refine or sharpen the unclear boundaries of a judge-made trust law rule? To what extent can the conceptual boundaries of the English trust be modified by statute? Do these reforms push the boundaries of the trust to better adapt it to modern circumstances? Or do they threaten to break the institution of the trust altogether?

May 20, 2024 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, May 19, 2024

Technology—Probate - New Year, New Tech: Technology and Estate Planning

Estate planningBy this time of the year, our New Year’s resolutions may either be going strong or, more likely, have started to fade into a distant memory. Many professionals have vowed to embrace the mantra “work smarter, not harder” and find ways to become more efficient and prioritize tasks that move the needle. Achieving this goal can be easier said than done, but maximizing the use of both existing and new technologies is a great place to start. However, it’s crucial to find the ‘right’ technology tools, as the ‘wrong’ ones can make tasks take longer and create a more confusing process.

In the context of estate planning, utilizing the proper software tools can significantly streamline the process. For instance, estate document drafting software allows attorneys to save time, thereby freeing up more time for business development and client counseling. Comprehensive estate planning involves coordinating clients' assets and ensuring they pass on to the next generation in the most tax-efficient way. To educate clients effectively, attorneys may need to use various tools like flow charts, diagrams, and calculations. Automating these illustrations can help create efficiencies and consistency in client deliverables. Estate planning software like Vanilla®, eState Planner, and NaviPlan offer features such as net worth aggregation, liquidity analysis, and client information management to aid in this process.

Furthermore, estate planning software can assist in creating visual summaries and flow charts, making it easier for clients to understand their estate plans. Tools like Luminary, Vanilla®, and eState Planner provide dynamic visuals and customizable illustrations to depict clients' financial pictures and estate plans. Additionally, software such as Lucidchart and SmartDraw can help advisors create polished diagrams. There is a learning curve associated with these technologies, so it takes a while to learn but you save time later on. Despite some drawbacks and the need for thorough testing to find the best fit, leveraging these tools can ultimately save valuable time and enhance the efficiency of estate planning practices. As we aim to work smarter this year, investing time in selecting the right software will benefit both practitioners and their clients.

For more information see Ross Bruch and Margaret Weese "Technology—Probate - New Year, New Tech: Technology and Estate Planning" American Bar Association Probate & Property, May 8, 2024.

May 19, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Saturday, May 18, 2024

Corporate Transparency Act: Understanding the Act and Its Implications

Screenshot 2024-05-18 at 10.23.35 AMThe Corporate Transparency Act (CTA), enacted on January 1, 2021, as part of broad anti-money-laundering and antiterrorism measures taken by Congress, is set to take effect on January 1, 2024. The CTA requires certain business entities (each defined as a “reporting company”) to file, in the absence of an exemption, information on their “beneficial owners” and, in some cases, “company applicants” with the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury (Treasury). The information provided to FinCEN will not be publicly available, but FinCEN is authorized to disclose the information to certain agencies and other entities/persons.

At first blush, the CTA would not have large-scale implications on attorneys whose practices focus on real estate or trusts and estates. However, because of the large-scale use of holding companies involved in real property transactions and their common usage in holding assets indirectly owned by trusts, the CTA’s reporting obligations will likely apply to many, if not most, of these holding companies. The following article provides a general summary of the parts of the CTA, including which entities are considered reporting companies, how to identify a reporting company’s beneficial owners and company applicants, what information needs to be reported to FinCEN, when that information must be reported, and the penalties for non-compliance with the CTA.

The article goes into detail on what companies constitute a reporting company and exemptions under the act. It highlights certain more common exemptions like the Nonprofit Entity Exemption and the Subsidiary Exemption. 

For more information see Eric R. Tubbs "Corporate Transparency Act: Understanding the Act and Its Implications" American Bar Association Probate & Property, May 8, 2024.

May 18, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Friday, May 17, 2024

Brian Wilson, Beach Boys co-founder, to be placed under conservatorship, judge rules

Screenshot 2024-05-17 at 11.43.04 AMBrian Wilson, musician and founding member of the hit ’60s rock band The Beach Boys, has been placed under a conservatorship following a Los Angeles court ruling on Thursday. According to court documents, Wilson is “unable to care for his person,” has a “Major Neurocognitive Disorder” and “lacks capacity to give informed medical consent for medications.” The court documents said that Wilson’s conservators are ordered to consult with his children regarding all material-related healthcare decisions.

Wilson family said that after “careful consideration and consultation” among Brian, his children, his housekeeper, and his doctors, “longtime Wilson family representatives LeeAnn Hard and Jean Sievers will serve as Brian’s co-conservators of the person” following his wife's passing. Wilson said his wife who passed away in January was his "anchor" and helped him with his health and music career. 

Wilson has had a tumultuous relationship with the spotlight, having suffered from fame-induced stress, depression, and drug addiction in the past. He decided to quit touring with his band after a nervous breakdown in 1964, though he continued to write, arrange, produce, and record The Beach Boys’ music. Wilson and The Beach Boys were inducted into the Rock and Roll Hall of Fame in 1988 and received a Grammy Lifetime Achievement Award in 2001. Wilson has also won two Grammy Awards as a solo artist, for Best Rock Instrumental Performance in 2005 and Best Historical Album in 2013.

For more information see Catherine Nicholls "Brian Wilson, Beach Boys co-founder, to be placed under conservatorship, judge rules", CNN Entertainment, May 10, 2024. 

May 17, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Thursday, May 16, 2024

Nursing Homes Wield Pandemic Immunity Laws To Duck Wrongful Death Suits

Screenshot 2024-05-16 at 11.43.09 AMAs the world grappled with the COVID-19 pandemic, nursing homes emerged as battlegrounds where negligence and tragedy intersected. In a heart-wrenching tale of loss and legal complexity, the story of Trever Schapers' fight for justice highlights the challenges families face when seeking accountability for their loved ones' deaths in nursing homes.

In February 2020, Trever Schapers watched her father, John Schapers, celebrate his 90th birthday at a care center in New York City. Little did she know that this joyous occasion would be overshadowed by grief and legal hurdles. John contracted COVID-19 in the facility and tragically passed away after battling the virus on a ventilator for two weeks. When Trever sued the nursing home for negligence and wrongful death, she faced a harsh reality — a New York state law passed hastily during the pandemic granted immunity to medical providers for COVID-related harm or damages.

Trever's case is not unique. Across the United States, hundreds of families have confronted similar legal roadblocks in their quest for justice. Nursing homes, some previously penalized for safety violations, have shielded themselves from lawsuits, claiming immunity under state and federal laws enacted during the crisis.

While nursing homes initially cited legal protections like the federal PREP Act, courts have grappled with the extent of immunity granted to these facilities. Families allege a range of failures, from inadequate protective measures to deliberate misinformation about COVID-19 outbreaks within facilities. Despite these allegations, legal battles have often led to dismissals, settlements shrouded in secrecy, or protracted delays, leaving families in anguish.

New York stands out as a focal point of legal disputes over nursing home immunity. The state, hit hard by COVID-19 early in the pandemic, has seen a surge in negligence and wrongful death cases against nursing homes. Yet, the legal terrain remains murky, with conflicting interpretations of immunity laws and legislative interventions further complicating matters.

Moreover, nursing homes have invoked immunity not only for COVID-19-related incidents but also for unrelated issues such as falls or neglect, sparking outrage from patient advocates.

Amidst the legal wrangling, the toll of the pandemic on nursing home residents has been staggering, with over 172,000 recorded deaths in these facilities. While the industry argues for limited liability protections, patient advocates emphasize the importance of accountability and transparency in ensuring quality care for vulnerable populations.

As the legal battles continue, it's evident that the pursuit of justice for nursing home residents and their families is far from over. While legal frameworks may offer temporary reprieve to nursing homes, the quest for accountability remains a moral imperative, ensuring that tragedies like those witnessed during the COVID-19 pandemic are not forgotten or repeated in the future.

For more information see Fred Schulte "Nursing Homes Wield Pandemic Immunity Laws To Duck Wrongful Death Suits", KFF Health News, May 14, 2024. 

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

May 16, 2024 in Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 15, 2024

What Attorneys Need to Know About Handling Pet Care in Wills

PetsIn recent years, pets have become integral members of countless families, prompting many pet owners to include their beloved companions in their estate planning. However, navigating the complexities of pet trusts within wills can pose challenges for both attorneys and pet owners alike. 

One of the primary obstacles in addressing pet trusts within wills is the lack of proper oversight and implementation. Many wills lack clear instructions, leading to disputes and confusion among designated caregivers. To mitigate these issues, attorneys must draft pet trusts with precise instructions and establish clear responsibilities for caregivers. By doing so, they can ensure that the welfare of pets remains a top priority even after the owner's passing.

The notorious case of Leona Helmsley’s pet trust serves as a cautionary tale, highlighting the potential complications that can arise without proper planning. Helmsley left $12 million in a trust to her dog but excluded two of her grandchildren. The court decided to take $6 million from the pup’s trust and give it to the disinherited grandchildren. To avoid similar situations, attorneys must include contingency plans and designate alternative caregivers in pet trusts. By anticipating potential challenges and providing clear instructions, attorneys can safeguard the well-being of pets and minimize conflicts among beneficiaries.

The case of Nancy Sauer sheds light on the difficulties in handling pet care in wills, particularly when resource constraints come into play. Sauer left $2.5 million to her seven Persian cats to ensure they were kept together. However, after difficulty in completing this request, the cats ended up in the humane society. To address these concerns, attorneys should ensure adequate funding is provided in pet trusts to cover the pets’ lifetime expenses. Additionally, establishing mechanisms for regular oversight and consulting with pet care administration professionals can help navigate the complexities effectively.

For pet owners seeking to include their furry friends in their estate plans, there are several options to consider, including pet trusts, testamentary gifts, and planning for incapacity. By taking proactive steps to address their pets’ future care, pet owners can ensure a lasting legacy and peace of mind.

Recognizing the growing demand for pet-centric estate planning, pet care administration companies have emerged to provide specialized services in this niche area. These companies offer a wide range of services, including caregiver evaluation, sourcing pet caregivers, and overseeing pet trusts, making it easier for attorneys and pet owners to navigate the complexities of estate planning involving pets.

Incorporating pets into estate planning requires careful consideration and strategic planning to ensure their future well-being. By addressing key issues, learning from cautionary tales, and seeking assistance from pet care administration companies, attorneys and pet owners can navigate the complexities of pet trusts with confidence, safeguarding the welfare of their beloved companions for years to come.

For more information see Robert Greene What Attorneys Need to Know About Handling Pet Care in Wills”, American Bar Association Probate & Property, May 8, 2024.

May 15, 2024 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, May 14, 2024

Uniform Laws Update - Conflict of Laws in Trusts and Estates

Estate-planning-967badd135bb43889abcea181ddaf72cThe Uniform Laws Update in Probate & Property highlights the evolving landscape of estate planning, which has shifted from primarily local to encompassing multiple jurisdictions due to increased mobility, changing wealth structures, and evolving state laws. With families relocating frequently and wealth being more fluid, estate plans often need to consider laws from various states. Moreover, the emergence of trust-friendly legislation in certain states has led to the strategic selection of trust jurisdictions, adding complexity to the choice of governing laws. Consequently, conflicts of laws have become more common, as litigators seek favorable forums for resolving disputes involving trusts with connections to multiple states.

Section 107 of the Uniform Trust Code delineates guidelines for resolving conflicts within trust matters, emphasizing that the determination of a trust's terms relies on the law of the designated jurisdiction, unless contrary to a strong public policy of the jurisdiction most relevant to the matter or in the absence of such designation, the law of the jurisdiction with the most significant relationship to the issue prevails. However, phrases like "strong public policy" remain ambiguous, leaving courts to interpret these terms. Meanwhile, the Restatement (Second) of Conflict of Laws offers more defined rules, though its antiquated framework fails to address modern complexities, such as the rise of trusts governed by laws from distant jurisdictions. This complexity extends beyond trusts to the realm of wills and probate procedures, prompting initiatives like the drafting of the Restatement (Third) of Conflict of Laws by the American Law Institute (ALI) and the Uniform Law Commission's (ULC) creation of a new uniform act on conflict of laws in trusts and estates. Collaboration between ALI and ULC aims to synchronize efforts and ensure coherence in legal outcomes, which is crucial given the significant assets held in trusts and the extensive time estate planners invest in navigating jurisdictional laws.

David Lieberman, a partner at Levin Schreder & Cary in Chicago, serves as the ABA Advisor for the project, facilitating communication between the drafting committee and American Bar Association (ABA) members. The drafting committee prioritizes respecting donors' autonomy in selecting governing laws while endeavoring to simplify conflict laws by minimizing distinctions between types of property and trusts and streamlining the application of laws in construction and interpretation matters. Nonetheless, the complexity of the subject necessitates thorough deliberation, with both ALI and ULC welcoming stakeholder input as they strive to produce comprehensive and impactful legal frameworks that address the intricacies of today's legal landscape effectively.

For more information see Benjamin Orzeske “Uniform Laws Update - Conflict of Laws in Trusts and Estates”, American Bar Association Probate & Property, May/June 2024.

May 14, 2024 in Estate Planning - Generally, New Legislation, Trusts, Weblogs | Permalink | Comments (0)

Monday, May 13, 2024

First person to receive a genetically modified pig kidney transplant dies nearly 2 months later

Screenshot 2024-05-12 at 9.24.20 PMRichard "Rick" Slayman, the first recipient of a genetically modified pig kidney transplant, has passed away nearly two months after undergoing the groundbreaking procedure at Massachusetts General Hospital in March. Surgeons had initially anticipated that the pig kidney would function for at least two years. Slayman, aged 62, received the transplant after experiencing complications from a previous kidney transplant in 2018.

Although Slayman's family and the hospital expressed deep sadness at his passing, they clarified that there was no indication that his death was directly related to the transplant. The procedure marked a significant milestone in xenotransplantation, offering hope for those awaiting organ transplants. Previously, pig kidneys had been temporarily transplanted into brain-dead donors, with limited success.

Slayman's family expressed gratitude towards his doctors for their efforts in facilitating the xenotransplant, extending their appreciation for the additional time it afforded them with Rick. They highlighted his decision to undergo the surgery as a beacon of hope for thousands awaiting transplants, emphasizing his enduring legacy of optimism. Xenotransplantation, involving the use of animal organs to heal humans, represents a promising avenue in addressing the critical shortage of organs for transplantation, with over 100,000 people currently on the national waiting list.

For more information see Associated Press “First person to receive a genetically modified pig kidney transplant dies nearly 2 months later”, Yahoo Entertainment, May 11, 2024. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

May 13, 2024 in Estate Planning - Generally, Science | Permalink | Comments (0)