Saturday, February 16, 2019
A rare beauty was found in a basement in Turin, Italy of a mechanic after the owner passed away in November. The mechanic appears to have lowered a rare 1962 Alfa Romeo Giulietta SZ down to the basement with an elevator, and then when the elevated broke, never repaired it. Fewer than 200 of that model are believed to have been made.
The mechanic died with no will and no heirs, so the government was able to claim the rare car. Worked removed the car with a crane and promptly sold it at a nondescript auction house for an incredible $650,000. That’s one of the highest prices ever paid for the model, and above the Hagerty Price Guide estimate for a show-quality example - all of which goes straight to the Italian Treasury.
See Gary Gastelu, Rare Alfa Romeo Stuck in Basement for 35 Years Sold for $650,000 After Owner's Death, Fox News, February 7, 2019.
Friday, February 15, 2019
Karen S Gerstner recently published an Article entitled, The Killing of Community Property, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 1 (2018). Provided below is the first paragraph of the introduction of the Article.
The primary purpose of this article is to educate individuals who are unfamiliar with community property law and to explain why certain actions taken by Congress, federal courts, and the Internal Revenue Service (the "IRS") have amounted to the killing of community property. A secondary purpose of this article is to encourage Congress, and particular the members of Congress from community property states, to consider passing legislation (i) to amend the Employee Retirement Income Security Act of 1974 ("ERISA") to recognize the community property ownership interest of the spouses of employees and retirees who have accumulated qualified employee benefit plans ("qualified plans") while living in a community property state and to allow those spouses to dispose of their ownership interest in those qualified plans if their spouses die prior to the employee or retiree, to the maximum extent possible in view of both federal administrative goals and state law property ownership goals, and (ii) to clarify or modify section 408(g) of the Internal Revenue Code so that it does not abrogate the community property ownership of Individual Retirement Accounts ("IRAs") accumulated by married persons living in community property states, except to the extend absolutely necessary to achieve federal income tax goals.
Many states have complex and confusing laws that deal with the administration and distribution of a decedent's digital assets. In Estate of Swezey out of New York, Apple was considered about the legality of handing over access to photos on the deceased user's iCloud to the executor. The Court concluded that Apple was required to disclose those photographs.
The Uniform Fiduciary Access to Digital Assets Act of 2014 treated digital assets that same as traditional assets. The account owners could decide what would happen to them and the fiduciaries could have control of them when the owner died or became incapacitated. If the executor or other fiduciary did not have the password to an account, they were to ask the company for access and the company would have to comply. This faced strong opposition from technological companies and privacy advocacy groups claiming that this contradicted federal and state privacy laws.
In 2015, the Uniform Law Commission revised that act to correlate with the issues raised by the companies and advocacy groups, including not allowing access to all of the different aspects of certain accounts. Now, executors will not have authority over the content of electronic communications, unless expressly disclosed, but they can get access to other types of digital assets, such as photographs or an eBay or PayPal account. Many companies now have "online tools" that allow the user to designate who the company is to release the account to when the user dies.
Fiduciaries may request court orders if necessary. In general, access is only granted to assets that are “reasonably necessary” for wrapping up the estate.
See Stacie J. Rottenstreich and Karin Barkhorn, What Happens to My Digital Assets on Death or Incapacity?, Lexology, Februaru 6, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.
The American Law Institute is holding a webcast entitled, Decanting Trusts: Possibilities, Pitfalls, Tax Consequences, and Fiduciary Duties, on Wednesday, March 13, 2019. Details of this presentation are not yet available; please check back two weeks before the program date for more details.
Thursday, February 14, 2019
Article on Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology
Alexandra M. Jones recently published a Comment entitled, Old Days are Dead and Gone: Estate Planning Must Keep its Head Above Water with the Changing Tide of Technology, 11 Tex. Tech Est. Plan. Com. Prop. L.J. 161 (2018). Provided below is an abstract of the Comment.
Fresh out of law school, many young lawyers are eager to start their legal careers and just right into the courtroom. While they still need some practical training first, many young lawyers accept jobs that deal solely with discovery or intake until they can slowly make their way up the legal food chain. With the advancement of technology, programs like expert systems and artificial technology are taking over some of these first-year associate jobs because they are less expensive and more efficient. As a result, law firms are not hiring as many recent graduates. Eventually, technical jobs could replace the classical notion of attorneys. However, the growing concern that technology is taking over jobs in the legal field is not the only problem caused by artificial intelligence. Issues arise with how much impact technology has in transactional fields, such as estate planning, and the future role that artificial intelligence will play. An even greater issue arises with who is liable for artificial intelligence mistakes when there is very little in terms of legislation.
Tech industry experts are in stark disagreement about the means of regulating artificial intelligence. Stephen Hawking and Elon Musk have warned the world of dangers of advancing artificial intelligence and that governments need to start creating laws and regulations. Experts such as Bill Gates and Mark Zuckerberg believe that creating new regulation is not realistic because the technology has not fully developed. Some critics argue that researchers are already regulated enough, and adding more regulation will stifle innovation. This comment focuses the issue on a much smaller scale by suggesting that lawyers, law firms, and other entities that utilize artificial intelligence, or its branch of expert systems, in their estate planning practice are consistent with ethical rules of conduct for the system. Additionally, this comment will expand upon the meaning of the unauthorized practice of law as it relates to artificial intelligence.
This comment proceeds in five parts. Part I introduces the concept of artificial intelligence through practical and theoretical examples and definitions. Part II discusses the impact that artificial intelligence has on expansion. Part III considers the effect artificial intelligence have on estate planning laws. Part IV discusses the parties liable for artificial intelligence. Part V suggests methods of ensuring compliance with ethical standards to estate planning practitioners as technology becomes more absorbed in transactional fields.
Wednesday, February 13, 2019
The Senate Health, Human Services and Senior Citizens Committee in New Jersey voted 6-3 last Thursday in favor of the Aid in Dying for the Terminally Ill Act. The Act would allow doctors to prescribe life-ending medications to adult patients who have six months or less to live. It still must pass both house of the Legislature and be signed into law by Governor Phil Murphy.
An opponent of the bill claims that there were a limited number of people against the bill actually allowed to speak. Dr. T. Brian Callister says that the hearing was "irregular" and that apart from him, only one other physician was allowed to make comments. Dr. Callister said that he attended the hearing “in hopes of educating legislators about the perverse incentives and negative unintended consequences that physician-assisted suicide carries with it.”
Currently California, Colorado, Hawaii, Oregon, Vermont, Washington and Washington, D.C. have passed laws that allow for assisted suicide. Montana also provides physicians a legal defense or immunity from prosecution under a court ruling.
See Frank Miles, NJ Clears 1st Hurdle to Make Assisted Suicide Legal; Opposition Calls Hearing a 'Charade,' Fox News, February 7, 2019.
The parents of Molly Russell have been unsuccessful in their attempts to access her social media data, which they believe will help them to understand her suicide.
The 14-year-old's father has claimed that her use of Instagram was a factor in her taking her own life.
Instagram has told the BBC it is constantly reviewing its polices regarding images about depression and suicide, and that experts have advised the company that allowing those topics could help people feel supported.
See Why Can't I See My Daughter's Data?, BBC, February 6, 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.
Tuesday, February 12, 2019
The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities' eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations' administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors' stock holdings, the disposition of unused tax credits at the taxpayer's death, and fiduciary qualification without surety. The Supreme Court of Virginia handed down eight recent decisions addressing the presumption of undue influence, requirements for estoppel and preclusion, the signature requirement for a proper codicil, trust governing law and interpretation, the fiduciary duties of agents, the jurisdiction of Commissioners of Accounts, and appraisal requirements for state tax credits.
Marcelle Harrison’s family has lived in a three-story home near Central Square in Cambridge, Massachusetts for close to 40 years, during which time four generations laid their heads. Now she may have to relocated because her stepfather died intestate in 2011 after the passing of her mother two years prior, meaning that legally her stepfather's blood relatives back in his native country of Barbados have a stronger claim to her childhood home.
Harrison, 64, received the news in a letter the day before Thanksgiving. The home was purchased by her parents in 1980 for $23,000 but was now worth more than $1 million. Her stepfather, Noel Aimes, never learned how to properly read or write but had every intention to leave the home to the family that lived in the house, according to Harrison. “Since you were not an heir-at-law, your appointment is in jeopardy of being set aside,” wrote Gayle Stone-Turesky, a Boston lawyer who was appointed by the state as a public administrator, who is brought in to handle estates where there is no will and no blood heir living in the state.
An attorney for the niece and nephew in Barbados said that they intend to sell the property once the case is settled. They are the children of Noel's sister, the only family member he appeared to be close to once he had moved to Boston. According to Harrison, the aunt passed away in 2001 and the niece visited Noel once, presumably for money while passing through the Commonwealth.
Harrison's neighbors are outraged by her predicament and have started a GoFundMe page to assist in legal fees and to possibly attain a bargaining chip. She appears to have a strong case to be reimbursed at least for the taxes she paid on the property, any improvements she made to the house, and even her care of her stepfather in his final days. She may be able to work out a deal with the niece and nephew so that her and her family remain in the cherished family home.
See Maria Cramer, A Patriarch Leaves No Will and the Home he Meant for his Cambridge Family May be Lost, Boston Globe, February 7, 2019.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
The Rockefeller dynasty has a long history with the museum. In fact, David's mother helped found the institution in 1929. He was longtime benefactor, donating pieces by Pablo Picasso, Paul Cezanne and Henri Matisse. Rockefeller also served 69 years on the board of trustees until his death at the age of 101.
The Museum of Modern Art voted unanimously to named its directorship after David Rockefeller. “It’s an energizing and fitting tribute to celebrate David’s vision and passion for the museum’s mission and its collection,” Glenn D. Lowry, the museum’s first David Rockefeller Director.
See Katya Kazakina, David Rockefeller's Estate Donates Record $200 Million to MoMA, Financial Advisor, February 5, 2019.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.