Wills, Trusts & Estates Prof Blog

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

Monday, October 14, 2019

Article on Charitable Tax Reform For the 21st Century

Charity1Roger Colinvaux & Ray D. Madoff recently published an Article entitled, Charitable Tax Reform For the 21st Century, Tax Law: Tax Law & Policy eJournal (2019). Provided below is an abstract of the Article.

The article identifies two goals of the charitable giving tax incentives: promoting actual charitable work and fostering a strong culture of charitable giving with broad participation. The recent increase to the standard deduction and the rise of donor-advised funds compromise both goals. The article outlines reform proposals to bolster the charitable sector, including expanding the giving incentive to all taxpayers in the form of a credit (subject to a giving floor), allowing some tax benefits to DAF donors upon contribution but delaying the income tax deduction until DAF funds are released from advisory privileges, closing loopholes that enable foundations and donors to skirt long-standing legal requirement, and modifying incentives to foundations to foster more spending.

October 14, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Sunday, October 13, 2019

Man gets ‘DNR’ Tattoo to Prevent Coming ‘Back as Vegetable’ in Case of Emergency

DNRNigel Thwaites, of Norfolk, England, is a 52-old-man that is healthy and has not faced a recent medical emergency. But after viewing a video that shows what can occur to a body after CPR, he decided to preemptively tattoo DNR (do not resuscitate) on his chest.

Thwaites said that the video showed what can happen if someone does not perform CPR correctly, and "that the brain becomes starved of oxygen which causes a loss of faculties in that person." He also is a registered organ donor, has a living will, and his blood type is also tattooed on his shoulder. Because a DNR tattoo creates legal and ethical issues for doctors in both the US and UK, the fact that Thwaites also has a living will is important to his choice.

Honoring the tattoo alone without a witness signature and patient signature could cause a doctor to lose his medical license, or be sued by the patient’s family or estate.

See Alexandra Hein, Man gets ‘DNR’ Tattoo to Prevent Coming ‘Back as Vegetable’ in Case of Emergency, Fox News, October 11, 2019.

October 13, 2019 in Current Affairs, Current Events, Estate Planning - Generally, Science | Permalink | Comments (0)

Saturday, October 12, 2019

Valid Execution of a Will [New Jersey]

WilltestamentThe most commonly viewed method of properly executing a last will and testament is by the decedent signing the document in front of two witnesses. But New Jersey's statute also allows for two other methods for a valid execution in lieu of the preferred manner.

Instead if actually signing the document in the presence of the witnesses, the decedent acknowledges to the witness that in it was his or her signature, and then the witness would sign the document. This method works when a witness to the will is not at the same location as the notary who may eventually notarize the document. The will may be signed before the notary, and then the other witness can witness the will after the decedent has acknowledged his or her signature.

The other way for a valid execution is that the will does not have to contain the decedent’s signature for it to be witnessed by a witness, provided the decedent makes it clear to the witness that the document is indeed his or her last will and testament. This can occur if the decedent wants a person to witness the will before taking it to a notary who will notarize the signature.

See Paul W. Norris, Valid Execution of a Will, NJ Law Blog, October 8, 2019.

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

October 12, 2019 in Current Affairs, Estate Planning - Generally, Wills | Permalink | Comments (0)

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)

Thursday, October 10, 2019

Article on How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts

RetirementAlbert Feuer recently published an Article entitled, How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Individuals often fund charitable gifts with their savings or retirement benefits. Such benefits, other than those from a Roth individual retirement account or annuity, are generally included in the individual’s gross income when received. However, individuals may not be able to deduct for federal income-tax purposes any of the charitable contributions they make during the period 2018 to 2025 because the 2017 tax act substantially limited the deductibility of state and local taxes, eliminated miscellaneous itemized deductions, and dramatically increased the applicable standard deductions. On the other hand, distributions from individual retirement accounts or annuities may be eligible for the favorable tax treatment applicable to qualified charitable distributions (QCDs). This article explains the QCD requirements. The article also discusses when it is prudent to use those provisions and when it is prudent to do otherwise if savings or retirement benefits fund charitable contributions, and when it is prudent to use other funding sources, such as appreciated publicly traded securities, for charitable contributions.

October 10, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

What Family Businesses Need to Know About Gifting Business Interests

GiftGifting interests in a family business to members of the younger generation is a great tool in any estate planning arsenal.  But if that younger family member is married, it is understandable if a family as a whole would not want to have the ex-spouse as a business partner.

So what to do in this conundrum? Some parents may believe that a spousal consent form, signed by either the son-in-law or daughter-in-law, stating that in the case of a divorce, no portion of the business interest would not be transferred to them. But this could go south very quickly, either by opening a can of worms by offending the in-law or by the restriction being illegal in a particular state. Even if the stock is not considered part of the marital estate, the value of it may be, and thus the soon-to-be ex-family member could receive a higher percentage of the marital assets.

A better solution would be discussing with your own child about having a marital agreement such as a prenuptial or post-nuptial agreement. The family business may be better protected with the child having an agreement that states that the stock is outside the marital estate and not subject to division in the event of divorce. It also means that the value of the stock would also be off the table.

See Christine Fletcher, What Family Businesses Need to Know About Gifting Business Interests, Forbes, October 9, 2019.

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

October 10, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Trusts, Wills | Permalink | Comments (0)

Bride Incorporates Late Father's Ashes into Wedding Nails

Charlotte-Walton-1-CatersCharlotte Walton, of Staffordshire, England, was devastated when her beloved father, Mick, passed away from cancer a few months before her wedding. A week after his death she concocted an idea with her cousin, Kirsty Meakin, for her father to still be represented there.

Meakin is a popular nail artist who shares her tutorials online with 1.5 million YouTube followers, and the video she posted of her cousin's nails has now amassed 50,000 views. Meakin and Walton sifted through “tiny bits of bone fragments” in Mick’s ashes, picking out some of the pieces to be mixed in with clear coating used atop Walton wedding nails.

The final product had a unique, glittery aspect to the nails. “It was a unique thing to do but I loved it, I felt like he was able to walk me down the aisle, which I knew was something he really wanted to do," the bride said. After the wedding, Walton removed the fake nails and had them framed as a keepsake.

See Michael Bartiromo, Bride Incorporates Late Father's Ashes into Wedding Nails, Uses 'Tiny Bits of Bone Fragment' for Glittery Look, Fox News, October 8, 2019.

October 10, 2019 in Current Events, Estate Planning - Generally | 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)

Estate Planning on Current Developments with Todd Angkatavanich and Steve Akers

BloombergTodd Angkatavanich and Steve Akers present what is hot in Estate Planning on Current Development on Bloomberg Tax Jumpstart, Part 1 and Part 2.

October 8, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)