Wills, Trusts & Estates Prof Blog

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

Thursday, May 19, 2022

This is How Much Money Americans Think They Need to be Considered Wealthy

MoneyAn annual survey conducted by Charles Schwab, known as the Modern Wealth Survey, asks Americans what dollar amount is needed to be wealthy in the United States. In February of 2022, 1,000 Americans ages 21-75 were surveyed about finances.

This year, the survey found that $2.2 million is considered the magic number for being wealthy and that an average net worth of $774,000 would result in a financially comfortable life. These averages were on the rise from 2021, however, are still lower than numbers reported prior to the COVID-19 pandemic.

For more information:

See Alicia Adamczyk, “This is How Much Money Americans Think They Need to be Considered Wealthy”, Fortune, May 17, 2022.

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

May 19, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Record Confirmatory Deed for Specific Devise in NY, Suggests Daniel Reiter in Lawline CLE

Estate planningIn New York, lawyers widely use executor’s deeds to memorialize a specific devise. Unfortunately, it is contrary to the law as an executor has no power over that real estate unless it needs to be sold to satisfy the decedent’s debts. 

If contrary to the law, why is it so common place? Largely because they don’t know a better way. In a recently CLE lecture, Daniel Reiter, a lawyer in New York, suggested a solution: (1) Probate the will, and (2) record a confirmatory deed, rather than an executor’s deed.

Lawline shared an excerpt from Reiter’s CLE with Wills, Trusts, Estates Information:

See Hani Sarji, “Record Confirmatory Deed for Specific Devise in NY, Suggests Daniel Reiter in Lawline CLE”, Wills, Trusts, Estates Information, May 17, 2022.

May 19, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 18, 2022

The Law of Halloween Nightmares: Damages for Caskets Bouncing Down the Highway, Burial Blunders, and More Funeral Frights

FuneralWith an average of 3 million deaths per year in the United States, it is inevitable that there will be some funerals-gone-wrong.  Examples include botched embalming services, caskets falling onto the roadway, and even a hearse that collided with a train leaving remains scattered at the scene of the crash.

Surviving family members who experience these nightmare scenarios are frequently able to recover money damages for their own mental and emotional distress, but are left to decide whether to utilize a torts or contract approach. The rationale is that tort actions rest in property law, with the decedent’s next-of-kin having quasi-property right in the corpse. Courts often deny tort claims for one of three reasons: the funeral director’s actions were not willful or grossly negligent, mental and emotional damages are difficult to precisely evaluate, or that that plaintiffs are unable to show their distress resulted from physical injury. 

While contract law may not have been a practical avenue in the past, many courts now allow for mental or emotional distress under breach of contract claims because the fundamental purpose of the contract is to provide peace of mind. 

For more information:

See William A. Drennan, “The Law of Halloween Nightmares: Damages for Caskets Bouncing Down the Highway, Burial Blunders, and More Funeral Frights”, ABA Probate & Property Magazine, May/June 2022.

May 18, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Article: Conditional Purging of Wills

Mark Glover recently published an article entitled, Conditional Purging of Wills, University of Richmond Law Review, 2022 Forthcoming. Provided below is the abstract:

The laws of most states unconditionally purge a testamentary gift to an individual who serves as an attesting witness to the will. Under this approach, the will is valid despite the presence of an interested witness, but the witness forfeits all, some, or none of her gift, depending on the particularities of state law. While the outcome of the interested witness’s gift varies amongst the states that adhere to this majority approach, the determination of what the interested witnesses can retain is the same. The only consideration is whether the beneficiary is also a witness; whether her gift is purged is conditioned on nothing else.

This Article illuminates a substantial, yet largely overlooked, minority approach to the purging of wills–an approach that, contrary to the majority approach, conditions a testamentary gift on considerations other than simply whether the beneficiary served as an attesting witness. This conditional approach to purging is of three types. First, some states condition an interested witness’s gift on considerations related to the testator’s subjective intent. Second, other states condition the purging of testamentary gifts on procedural considerations regarding how the testator executed the will or how the will was proven at probate. Finally, one state conditions gifts to an interested witness on considerations concerning the substance of the gift.

While generally ignored by legal scholars, conditional purging of wills has steadily grown in favor among policymakers, with eleven states now following this approach, including California, New York, and Texas. Given state legislators’ increasing appetite for conditional purging, a critical analysis of this minority approach is needed now, more than ever, to ensure that conditional purging statutes are founded upon sound policy considerations. To meet this need, this Article analyzes conditional purging statutes in light of the law of will’s overarching goal of accurately and efficiently carrying out the testator’s intended estate plan.

Ultimately, this Article argues that this minority trend is largely misguided because existing conditional purging statutes (1) do not protect the testator from wrongdoing aimed at undermining her intent, (2) make the probate court’s task of administering the decedent’s estate less efficient, and (3) have proven difficult for policymakers to clearly draft and for probate courts to predictably implement. State policymakers should therefore either adhere to the majority approach or more carefully tailor conditional purging statutes to further the policy goals of the law of wills.

May 18, 2022 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Tuesday, May 17, 2022

Article: E-Money and Trusts: A Property Analysis

Johanna Jacques recenlty published an article entitled, E-Money and Trusts: A Property Analysis, Law Quarterly Review, Forthcoming. Provided below is an abstract of the article:

Following recent guidance by the Financial Conduct Authority, in which it stated that funds received by electronic money institutions in exchange for electronic money are held on trust, this article provides a property analysis of electronic money that refutes this conclusion. It begins by explaining why a trust would not reflect the underlying property relations involved in the issuance of electronic money, whereby customers purchase monetary value in exchange for funds. It argues that this monetary value constitutes a chose in possession in the same way in which this is currently contemplated for cryptoassets. It then goes on to show how the safeguarding regime applicable to electronic money institutions aims to protect issuers’ ability to meet their personal liabilities rather than customers’ property rights in the funds. It finally demonstrates that, as a matter of trusts law, an intention to require a statutory trust cannot be read into the Electronic Money Regulations 2011.

May 17, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Vermont man charged with murdering mom at sea over inheritance money after boat sank off Rhode Island coast

Martha vinNearly six years after being rescued from a life raft off the Rhode Island coast, Nathan Carman of Vernon, Vermont has been charged with the murder of his mother. He told rescuers that he and his mother had embarked on a fishing trip, but when the boat began gaining water, his mother disappeared. 

Carman was also suspected in the shooting of his grandfather, John Chakalos, who was murdered in his sleep in December 2013. The death of Linda Carman is allegedly part of a scheme to obtain millions of dollars in inheritance money from the Chakalos estate and related trusts.

Included in the eight-count indictment are charges for his mother’s murder and related frauds. While the indictment mentions his grandfather's murder, no charges were brought at this time. If convicted, Carman faces mandatory life imprisonment. 

For more information:

See Danielle Wallace, “Vermont man charged with murdering mom at sea over inheritance money after boat sank off Rhode Island coast”, Fox News, May 11, 2022.

May 17, 2022 in Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, May 16, 2022

‘Bring back my parents’: Cremation ashes stolen from Texas woman’s front yard

Gazing ballsGail Hines, of Austin, TX, has kept glass decorations on her front lawn known as “gazing balls” for years. Last week, two of her lawn ornaments were stolen, however, the specific gazing balls that were taken were unique. They contained the ashes of her parents who passed away in the COVID-19 pandemic. 

Hines chose these specific gazing balls to represent the personalities of her parents, who loved to be outdoors. When purchased brand-new, gazing balls run between $25-$60. But for the Hines family, the value of these two gazing balls is immeasurable. The family is holding out hope that the thief will see the story and return the balls.

For more information:

See Grace Reader, “‘Bring back my parents’: Cremation ashes stolen from Texas woman’s front yard”, Everything Lubbock, May 14, 2022.

May 16, 2022 in Estate Planning - Generally | Permalink | Comments (0)

Sunday, May 15, 2022

Surfside Condo Collapse Victims Reach $997 Million Settlement

Champlain towersNearly a year after he catastrophic condominium collapse, a $997 million settlement was reached to compensate families of the victims. The Champlain Towers South condominium collapse killed 98 people in Surfside, FL in June of last year.

Victims are relived that a settlement has been reached, but have expressed that no amount of money will bring back loved ones. How the money will be dividing amongst the relatives of the 98 victims is yet to be determined.

Unit owners will also be compensated $83 million from funds generated by the sale of the land where the building once stood. As determined by a prior settlement, condo owners were released from any liability for negligence in the buildings maintenance.

Judge Michael A. Hanzman, of the Circuity Court in Miami-Dade County, would like to finalize the settlement before the one year anniversary.

For more information:

See Patricia Mazzei, “Surfside Condo Collapse Victims Reach $997 Million Settlement”, New York Times, May 11, 2022.

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

May 15, 2022 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Saturday, May 14, 2022

Article: AI, Taxation, and Valuation

Jay A. Soled and Kathleen DeLaney Thomas recently published an article entitled, AI, Taxation, and Valuation, Iowa Law Review, Forthcoming 2023. Provided below is an abstract of the article: 

Virtually every tax system relies upon accurate asset valuations. In some cases, this is an easy identification exercise, and the exact fair market value of an asset is readily ascertainable. Often, however, the reverse is true, and ascertaining an asset’s fair market value yields, at best, a numerical range of possible outcomes. Taxpayers commonly capitalize upon this uncertainty in their reporting practices, such that tax compliance lags and the IRS has a difficult time fulfilling its oversight responsibilities. As a by-product of this dynamic, the Treasury suffers.

This Article explores how tax systems, utilizing artificial intelligence, can strategically address asset-valuation concerns, offering practical reforms that would help obviate this nettlesome and age-old problem. Indeed, if the IRS and Congress were to take advantage of this new and innovative technological approach, doing so would bode well for more accurate asset valuations and thereby foster greater tax compliance. Put somewhat differently, in the Information Era in which we exist, it is simply no longer true that accurate asset valuations are unattainable.

May 14, 2022 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

Friday, May 13, 2022

Article: Trigger Warning: the 'Safe Harbor' at Section 420

Russ Willis recently posted an article entitled, Trigger Warning: the 'Safe Harbor' at Section 420, The St. Louis Bar Journal, 2022. Provided below is an abstract of the article:

In 2014, the Missouri legislature enacted a statute enabling a trust beneficiary to test the water before committing to a petition or motion that might trigger an in terrorem clause, forfeiting their interest in the trust.

Eight years have passed, and this statute has been addressed by Missouri appellate courts five times. The following discussion is somewhat out of chronological sequence, reserving the March 2020 opinion of the Missouri Supreme Court in Knopik v. Shelby Investments for last.

There is reason to believe the lawsuit in Knopik was contrived to force the question whether a clause that purports to relieve the trustee entirely of its fiduciary responsibilities is unenforceable as against public policy. The petitioner intentionally did not avail himself of the statutory safe harbor, and the court in effect held the clause operated as a condition subsequent to the beneficiary's interest in the trust, regardless of the merits of the claim.

In the author's view, Knopik was decided incorrectly.

Analytically, the in terrorem clause is an affirmative defense to the petition to remove. Here it was also raised as a counterclaim for declaratory judgment. In either of these procedural contexts the question of whether the clause is unenforceable should be fair game. The question does not simply disappear because the legislature has created an alternative mechanism for resolving it.

May 13, 2022 in Estate Planning - Generally | Permalink | Comments (1)