Wills, Trusts & Estates Prof Blog

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

Thursday, April 9, 2020

Article on COVID-19 and Formal Wills

WillDavid Horton and Reid K. Weisbord recently published an Article entitled, COVID-19 and Formal Wills, Wills, Trusts, & Estates Law eJournal (2020). Provided below is an abstract of the Article.

Most Americans do not have a will, but as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, probate law makes it difficult to create a will during this crisis. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a “formal” will executed in compliance with the Wills Act. Under this ancient statute, wills must be written on paper, signed by the testator, and also witnessed by two people who were present at the same time. Thus, the Wills Act’s insistence that parties physically occupy the same space poses an unforeseen barrier to testation during a time of widespread quarantine.

Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills.

This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize its requirements. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores three ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, and passing electronic will legislation.

April 9, 2020 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

CLE on International Tax Reporting for Estate Planners

CLEThe American Bar Association Section of Real Property, Trust & Estate Law is holding a webinar entitled, International Tax Reporting for Estate Planners, on Thursday, May 7, 2020 at 1:00 pm EDT. Provided below is a description of the event.

Join Barbara Kaplan, Co-Chair of Greenberg Traurig's Global Tax Practice, Karen Brodsky, lead partner of Deloitte's US International Private Wealth Tax Practice, and Rosemary Sereti, Managing Director with Deloitte's Washington National Tax and Tax Controversy Practices Groups, as they walk registrants through these important reporting requirements.

Speakers:

    • Karen Brodsky, Deloitte, New York, NY
    • Barbara Kaplan, Greenberg Traurig, New York, NY
    • Rosemary Sereti, Deloitte, Washington, DC

The ABA will seek 1.5 hours of CLE credit in 60-minute states and 1.8 hours of CLE credit for this program in 50- minute states. Credit hours are estimated and are subject to each state’s approval and credit rounding rules. Please visit americanbar.org/mcle for general information on CLE at the ABA.

April 9, 2020 in Conferences & CLE, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic

DigitalGovernor Andrew Cuomo has signed various executive orders to address the issues faced by the state of New York and its residents during these unprecedented times as the country deals with the COVID-19 pandemic. On April 7, 2020, the Governor issued Executive Order 202.14 which modifies the laws concerning numerous documents pertaining to a person's estate plan.

The act of witnessing for the execution of certain instruments that is required under state laws is authorized to be performed utilizing audio-video technology. Those instruments include:

  • Last will and testament 
  • Lifetime trust
  • Statutory gifts rider to a statutory short form power of attorney
  • Real property instruments
  • Health care proxies
  • Instrument to direct the disposition of a person’s remains upon their death

See Cheryl L. Erato, The Remote Witnessing of Estate Planning Documents During the COVID-19 Pandemic, nyestatelitigationblog.com, March 8, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Ira Bloom (Justice David Josiah Brewer Distinguished Professor of Law, Albany Law School) for bringing this article to my attention.

April 9, 2020 in Current Affairs, Current Events, Death Event Planning, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Trusts, Wills | Permalink | Comments (0)

Tuesday, April 7, 2020

D.C. Proposes Electronic Will Statute

Covid2In response to the COVID-19 pandemic and its astounding affects on the economy and the daily lives of American citizens, the Washington D.C. legislature proposed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 yesterday. Today, an amendment was added to allow its citizens to create wills electronically when "the Mayor has declared a public health emergency."

To read the amendment, see here.

April 7, 2020 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Monday, April 6, 2020

Washington State Supreme Court Denies Seattle’s Bid for Income Tax on Wealthy Households

SeattleWashington’s Supreme Court has denied Seattle’s bid to reinstate an income tax on wealthy households, declining to hear the city’s case by a majority decision. Both a King County Superior Court judge and the state Court of Appeals had ruled against the tax, and the Supreme Court denied to hear the request to overturn these decisions.

“The petitions for review are both denied,” Chief Justice Debra Stephens wrote, without elaboration and without issuing an opinion. The petitions were written by the city and by the Economic Opportunity Institute (EOI), a Seattle-based progressive think tank. A Supreme Court spokeswoman declined to report the tally and how each justice voted, but a source that wanted to remain anonymous said the vote was 5-3.

The ruling means Washington and its cities will remain blocked from enacting graduated income taxes, with different rates based on wealth. John Burbank, EOI’s executive director, said that Seattle could respond to the coronavirus health and economic crisis by trying to implement a single-rate income tax with exemptions meant to help poorer people. “I’m disappointed in the denial for review,” Burbank said Friday. “Having said that,” letting the Court of Appeals decision on the 1984 law stand, “does clear the way” for new proposals. This was alluding to the fact that the Supreme Court let stand a decision by the Court of Appeals last year to void the state law that banned taxes on net income.

Jason Mercier, director of the Center for Government Reform at the conservative Washington Policy Center, described the Court of Appeals decision on the 1984 ban as “bizarre” but hailed the Court's denial on the present case.

See Daniel Beekman, Washington State Supreme Court Denies Seattle’s Bid for Income Tax on Wealthy Households, Seattle Times, April 3, 2020.

April 6, 2020 in Current Events, Estate Planning - Generally, Income Tax, New Cases | Permalink | Comments (0)

Sunday, April 5, 2020

Funerals are the Latest Part of American Life to Move Online

OnlinefuneralAmidst the current pandemic, the Center for Control and Prevention has urged funeral directors around the country to move funeral services online. So for the immediate future, even for those that did not die of the novel COVID-19 virus, people cannot hold an in-person memorial for their loved ones.

"Being a millennial on the internet, I've watched my fair share of livestreamed events, but it was sad for all the wrong reasons," 27-year-old Garrett Galindo said after having to watch his 82-year-old grandmother's funeral online. Isabel Cabrera Galindo was a social woman that died of natural causes. "It was sad that my grandmother, a woman known for her love of large gatherings, parties and get-togethers, would have her final service be in front of only 10 of her loved ones. It was sad that even with today's technology it was so difficult to hear her eulogy, and it was sad knowing we couldn't share those final moments together as a family." Many of her older friends could not even attend digitally due to a lack of knowledge of the technology.

With more than 7,000 deaths in the United States each day, many do not want to delay celebrating the lives of loved ones. But the new normal of today of social distancing makes those traditional celebrations impossible. People have criticized livestreamed religious services in the past for being an unsatisfying replica of the in-person experience and some feel the same way about bringing funeral online.

See Samantha Murphy Kelly, Funerals are the Latest Part of American Life to Move Online, CNN, March 23, 2020.

April 5, 2020 in Current Affairs, Current Events, Death Event Planning, Estate Planning - Generally, Technology | Permalink | Comments (0)

Friday, April 3, 2020

Article on Sources of Private Rights

WethepeopleLionel Smith recently published an Article entitled, Sources of Private Rights, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.

Much has been written in both the common law and the civil law about the ‘sources’ of rights or of obligations. Jurists have attempted to classify and organize these sources as a way of shedding analytical light on the different kinds of rights that exist in private law. Building on recent scholarship in Quebec civil law, the author argues that the idea of the source of a private right is deeply ambiguous, and that the failure to see this has bedevilled attempts to classify the sources of rights. Just as every effect has multiple causes, every right has multiple sources. The author also argues that a similar ambiguity inhabits the common law’s idea of a ‘cause of action’. Distinguishing between the different senses of the ideas of ‘source’ and ‘cause of action’ helps to clarify a number of debates in private law theory.

April 3, 2020 in Articles, Current Affairs, Estate Planning - Generally | Permalink | Comments (0)

Thursday, April 2, 2020

Prince’s Family Claims That They Have Not Received Any Payments From His Estate; They Are Now Asking a Judge To Intervene

PrinceThree of the six siblings of the late singer Prince are claiming that they have not received anything from the estate, though they are his legal heirs. Despite this, lawyers and advisers of the estate have been paid. Sharon, Norrine, and John Nelson, three of the singer's siblings, have filed a petition for compensation in Prince’s estate.

The estate is run by Comerica Bank and the two parties have not agreed on many terms in the past. The siblings have accused Comerica of mismanaging money and leaving them out of the loop concerning major decisions regarding the estate. Comerica has denied these allegations. The three siblings say they want to continue helping out the estate but cannot continue without being compensated. The three siblings claim they have had to heavily depend on “solely on their pension, social security, personal savings and loans from friends to cover the costs needed to support the Prince Estate despite the millions paid to advisors, attorneys and others approved by the Court.”

A judge has yet to rule on the case.

See Gibson Precious, Prince’s Family Claims That They Have Not Received Any Payments From His Estate; They Are Now Asking a Judge To Intervene, Baller Alert, March 28, 2020.

Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.

April 2, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, New Cases | Permalink | Comments (0)

The CARES Act Helps Most Student Borrowers Seeking Loan Forgiveness

StudentdebtCongress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act last week to provide relief from many of the hardships created by the coronavirus and President Trump signed the bill into law Friday night. One of the many benefits of the Act was that it, for many borrowers, suspends their student loan payments—interest free—through September 30, 2020.

There is some confusion, however, because it does take time for legislation to be implemented. The CARES Act provides automatic suspension of payments, with 0% interest, and counts towards loan forgiveness, but the website that oversees the majority of government student loans - MyFedLoan - is displaying a message stating an optional suspension of payments that will not count towards forgiveness programs. The website's call centers have decreased staff because of the virus and limited ability to answer borrowers' questions.

Student loan borrowers should be patient, as loan servicers are working to implement the bill and it will be applied retroactively. The Department of Education echoed this message on a call yesterday where it told listeners it is directing loan servicers to make this retroactive to March 13th. So as long as the borrower would have otherwise qualified for a forgiveness program, these months of non-payment will count toward their required number of payments for forgiveness.

See Wesley Whistle, The CARES Act Helps Most Student Borrowers Seeking Loan Forgiveness, Forbes, April 1, 2020.

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

April 2, 2020 in Current Affairs, Current Events, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Tuesday, March 31, 2020

Article on Avoiding Grave Consequences: Electronic Wills as a Solution for Texas

TexastechMelissa Clark recently published an Article entitled, Avoiding Grave Consequences: Electronic Wills as a Solution in Texas, Wills, Trusts, & Estates Law eJournal (2020). Provided below is the abstract to the Article.

There is a vast gap in Texas between testate and intestate individuals. Admitting electronic wills to probate may reduce that gap. This article analyzes the current electronic will statutes in effect and the newly created Uniform Electronic Will Act to propose a statute for Texas designed to further testator disposition of property, ensure compliance with will formalities, limit fraud, and prepare Texas for technological advancements through electronic wills. Without a statute, Texas will face admitting electronic wills executed in other states, through the savings statute in the Estates Code, without control or regulations in place.

March 31, 2020 in Articles, Current Affairs, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)