Wills, Trusts & Estates Prof Blog

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

Monday, October 25, 2021

Surgeon transplants a pig's kidney into a brain-dead human in groundbreaking surgery

Robert Montgomery, a New York transplant surgeon, "conducted a successful surgery that transplanted a pig's kidney into a brain-dead human." 

US surgeons say that the successful transplant could ultimately be the key to solving donor organ shortages. The recipient of the kidney was brain-dead, and was on artificial life support "with no prospect of recovering." 

The kidney came from a pig that had been genetically modified to stop the organ being recognized by the body as "foreign" and being rejected. 

Although the work has not been peer-reviewed or published, there are plans to do so, and experts say it is the "most advanced experiment in the field so far." 

See Michelle Roberts, Surgeon transplants a pig's kidney into a brain-dead human in groundbreaking surgery, BBC, October 21, 2021. 

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

October 25, 2021 in Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Sunday, October 24, 2021

New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest

Estate planningIn Matter of Falkowsky, the New York Supreme Court, Appellate Division, Second Department, "affirmed a decree made after a nonjury trial which in effect granted objections alleging lack of testamentary capacity and undue influence, and denied the admission of the will to probate." 

The Court affirmed the Surrogate's Court decision in which it found a lack of testamentary capacity alone, focusing on the evidence presented which "effectively demonstrated that the decedent did not understand the nature and extent of his property." 

Harold Falkowsky was hospitalized on December 1, 2014. Two weeks later, Harold apparently executed a last will and testament "in which he devised $20,000 to each of his sons, Ira and Jeffrey, 50% of the residue of his estate to charities, and the other 50% of his residue to his sister, Alice Sobel. Harold, the decedent, died on January 14, 2015, just a month after he executed the Will. 

In March 2015, Alice petitioned for probate of the will and letters testamentary. Jeffrey, Harold's son, filed objections to the probate of the will, alleging lack of testamentary capacity and undue influence.

After examining the evidence, the Court ultimately found that Alice failed to prove that the decedent possessed the requisite testamentary capacity under New York Law, "as she failed to establish that the decedent knew the nature and extent of the property of which he was disposing." 

See New York Court Conducts In Depth Analysis Of Lack of Testamentary Capacity Will Contest, Probate Stars, October 19, 2021. 

October 24, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Friday, October 22, 2021

Social Security Benefits to Increase 5.9% for 2022

Americans receiving Social Security benefits in 2022 will see "the largest increase in their payments in four decades, reflecting surging inflation during the pandemic."

According to the Social Security Administration, in 2022 the cost-of-living adjustment (COLA) will be 5.9%, which will result in an addition of $92 to retirees' average monthly benefit next year. The increase brings the amount to $1,657, the agency estimates. The 5.9% COLA is the largest since 1982. 

The Social Security Administration also said that the maximum amount of earnings subject to the Social Security tax "will increase to $147,000 in 2022 from $142,800 this year, a 2.9% increase." 

According to Naomi Fink, a retirement economist at Capital Group, an investment manager, "[t]he extent to which the larger-than-usual Social Security adjustment makes retirees' and other recipients feel more well off will largely depend on whether inflation eases next year compared with 2021. . ." 

See Amara Omeokwe, Social Security Benefits to Increase 5.9% for 2022, The Wall Street Journal, October 13, 2021. 

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

October 22, 2021 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Thursday, October 21, 2021

Article: Trust Planning and the Washington State Capital Gains Tax

J. M. Coppieters recently published an article entitled, Trust Planning and the Washington State Capital Gains Tax, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

On April 25, 2021, the Washington State Legislature enacted a new state capital gains tax. Before now, Washington state has been one of the few states that does not impose a tax on either income or capital gains. Because of limitations imposed by the Washington State Constitution, the legislature has been forced to characterize the tax as an excise tax, rather than treat it as an income tax as would the federal government and every other state. Based on the statute’s structure and its presentation as an excise tax, whether intentionally or unintentionally, the legislature appears to have excluded both the trustees and beneficiaries of non-grantor trusts from being subject to the tax. This Article reviews the difference between grantor and non-grantor trusts, examines the apparent discrepancy between the two under the statute, and explores tax strategies planners and clients might consider pursuing in the wake of the new tax.

October 21, 2021 in Articles, Estate Administration, Estate Planning - Generally, Estate Tax, Trusts | Permalink | Comments (0)

Wednesday, October 20, 2021

Injunctive Relief to Prevent Monetary Damages in Estate Litigation

Estate planningGenerally, a party is only entitled to injunctive relief if they can "demonstrate that the damages for which they seek redress are not compensable by an award of monetary damages. . ."

However, the US District Court recently decided that injunctive relief was necessary to preserve monetary assets pending the resolution of the matter. Though it is rare to see estate litigation before a US District Courts the Court applied New Jersey law to reach its holding that injunctive relief was appropriate. 

The US District Court found that "the decedent had improperly taken a large sum of money from the party who had brought the litigation" after the plaintiff discovered that the decedent's estate was going to sell a parcel of property. The plaintiff moved for an injunction requiring the proceeds from the sale to be held in escrow. The District Court found that injunctive relief was necessary to "preserve the status quo and prevent the dissipation of these assets prior to a ruling on the merits." 

The Court further concluded that the plaintiff would suffer irreparable harm should the assets be distributed before the conclusion of the lawsuit. 

The District Court's decision indicates that courts may impose injunctive relief in order to protect monetary assets. 

Van Horn, Metz & Co., Inc. v. Crisafulli, No. 21-01128 (FLW), 2021 WL 4317186 (D. N.J. Sept. 23, 2021).

See Paul W. Norris, Injunctive Relief to Prevent Monetary Damages in Estate Litigation, Stark & Stark Attorneys at Law: New Jersey Law Blog, October 12, 2021. 

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

October 20, 2021 in Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, October 19, 2021

Reimagining Postmortem Conception

Kristine S. Knaplund recently published an article entitled, Reimagining Postmortem Conception, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

Hundreds, likely thousands, of babies have been born years after a parent has died. Thousands more people have cryopreserved their sperm, ova, and embryos, or have requested that a loved one's gametes be retrieved after death to produce still more such children. Twenty-three states have enacted statutes detailing how these postmortem conception children can inherit from their predeceased parents. And yet, few of these children will be able to inherit. The statutes create a bewildering array of standards, with over a dozen definitions of consent, variations in signature and witnessing requirements, and hurdles imposed in one state but not another. With our mobile population, the odds that a consent executed in one place will be accepted in another are small. With one exception--a New York amendment effective in February 2021--the states exclude most LGBT persons from being a postmortem parent. By failing to define when conception occurs, the statutes provoke a fight with those who use in vitro fertilization while both genetic parents are alive. This Article is the first time that the laws of all 50 states are examined to provide a comprehensive look at whether a postmortem child inherits and determine how wildly disparate the legal standards are from public sentiment. The Article details the precise ways the law fails the problem and proposes four concrete solutions for states to adopt.

October 19, 2021 in Articles, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, October 18, 2021

As Second Homes Get Far More Use, the Question Is: Where Do You Live?

Estate planningOf course, owning one home comes with its challenges. But the challenges may mount even higher when owners split their time equally between two or more properties. In these cases, owners face tax, legal, financial, and personal challenges. 

The Rounds family have recently faced these challenges since they have began to spend an extensive amount of time at their second home in the Teton Vally region on the Wyoming/Idaho border. 

Mr. Rounds and his wife closed on a $2.5 million house in Idaho, and although the family planned on splitting their time equally between their home on the East Coast and the new home, they have already spent six months in the new home. 

The family has had to figure out how to "ship cars halfway across the country, find a second pediatrician for their 11-mont-old-daughter, and get their three Maltese dogs back and forth between the two homes." These challenges are not typically encountered by people who only spend weekends and the occasional vacation week at a second home. 

This "co-primary home" lifestyle has been the norm for the ultra-rich. But due to the pandemic, working remotely has become more of the norm and has made the co-primary home lifestyle a more realistic lifestyle choice for second-home owners who are less wealthy.

For those thinking about the lifestyle, it is important to consider the tax, financial, legal, and personal challenges that may come along with it.

See E.B. Solomont, As Second Homes Get Far More Use, the Question Is: Where Do You Live? , The Wall Street Journal, October 14, 2021.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

October 18, 2021 in Estate Administration, Estate Planning - Generally, Income Tax, Travel | Permalink | Comments (0)

Sunday, October 17, 2021

National Estate Planning Awareness Week October 18-24, 2021

National Estate Planning week will begin on Monday, October 18 2021 and will extend to October 24, 2021. National Estate Planning week was adopted in 2008 "to help the public understand what estate planning is and why it is such a vital component of financial wellness." 

The National Association of Estate Planners & Councils (NAEPC) is the association of choice for estate planning professionals. The NAEPC is made up of 2,000 Accredited Estate Planner designated professionals, 270 affiliated local estate planning councils, and 30,000 members with ongoing education and a forum for networking within the estate planning community. 

The NAEPC had this message for Councils: 

NAEPC's goal is to work with affiliated local councils to reach every American annually with a reminder about the need for estate planning. It is our hope our councils will host education events, call-in phone banks, and seminars each and every October to help spread the word: YOU need estate planning TOO!

As leaders in the estate planning community, your members have first-hand experience with the challenges Americans face with regard to saving, investing, and planning for their future. As an estate planning council, you have the ability to make a significant impact in your home community. 

See NAEPC, National Estate Planning Awareness Week October 18-24, 2021, naepc.org, last visited October 17, 2021. 

October 17, 2021 in Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Saturday, October 16, 2021

Cher Sues Sonny Bono's Widow, Mary, for Withholding Royalties

CherCher has filed suit against Sonny Bono's widow, Mary Bono, alleging that Sonny's widow has "been withholding royalties from Sonny and Cher's 1960s hits. . .such as 'I Got You Babe' and 'The Beat Goes On." 

According to the legal documents filed in Federal Court, Cher claims that she and Sonny agreed to an equal split of their music royalties when they divorced in 1975. Cher claims that she and Sonny executed a deal when the couple settled the divorce in 1978. 

Cher alleges that Mary has been trying to "undo her ownership of those rights and royalties in recent years." 

Cher and Sonny married in 1964 and were very successful as a couple in the early '70s before they divorced. Cher went on to have a successful solo career, while Sonny became a California politician. Sonny was married to Mary when he died in a skiing accident in 1998. 

According to reports, Cher and Mary got along well after Sonny's death, but their friendship has clearly ended as Cher is now suing for at least $1 million in damages and is asking a judge to declare the 1978 divorce settlement enforceable. 

See Cher Sues Sonny Bono's Widow, Mary, for Withholding Royalties, TMZ, October 14, 2021. 

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

October 16, 2021 in Estate Administration, Estate Planning - Generally, Music | Permalink | Comments (0)

Friday, October 15, 2021

Top state court upholds trust provision requiring beneficiary to be unmarried

TrustOn October 8th, the Indiana Supreme Court upheld a trust provision that made distribution of an inheritance contingent on the beneficiary being unmarried. 

The Court held that the provision "is not an unlawful restraint on marriage." The provision was part of a revocable trust that "resulted in the estate of Marcille Borcherding to her son, daughter and four stepchildren after her death." 

The trust stated that Marcille's son, Roger Rotert, would get his share of the estate outright if he was unmarried at the time of her death. If Rotert was to be married, the assets would remain in a subtrust. 

Rotert's third wife filed for divorce before Marcille Borcherding executed the trust, but the couple reconciled and were still married when Marcille died in 2016. Marcille's daughter Connie Stiles, who served as a trustee for the subtrust, came to an agreement with Rotert in which Rotert agreed to receive the subtrust's cash assets and agreed to keep the real property in the trust. Rotert later brought suit. 

Indiana law voids will provisions that condition a spouse's inheritance on remaining unmarried, but the Indiana Supreme Court stated that the rule does not apply to trusts, which can set marriage conditions on spouses and others.

See Debra Cassens Weiss, Top state court upholds trust provision requiring beneficiary to be unmarried, ABA Journal, October 13, 2021. 

October 15, 2021 in Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)