Wills, Trusts & Estates Prof Blog

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

Friday, February 14, 2020

Article on Avoiding Prison Bars, But Gaining a Bar to Inheritance: A Statutory Solution for the Insane Slayer Through a Comparative Approach

CourtwindowBrittany Brewer recently published an Article entitled, Avoiding Prison Bars, But Gaining a Bar to Inheritance: A Statutory Solution for the Insane Slayer Through a Comparative Approach, Wills, Trusts, & Estates Law eJournal (2020).

If a solution cannot be found within states, it’s time to look outside our own borders. This Article does just that. With murder amongst family members slowly becoming a frequent phenomenon, comes the burden of determining inheritance. This burden grows exponentially, however, when the slayer is later found not guilty by reason of insanity as a result of a mental illness at the time of the killing. States have grappled with their treatment of the insane slayer in different ways, either by letting them inherit due to their lack of intent, or by refusing to let them inherit under public policy justifications. By arguing that the insane slayer should be able to inherit due to their lack of intent at the time of the killing and the uncontrollable genetic inheritance of their mental illness, this Article is the first to present a solution for the insane slayer through a comparative approach. Specifically, by adopting statutory language from the Forfeiture Act of 1995 No. 65 in New South Wales, Australia. This piece of legislation weighs the conduct of the offender, the conduct of the deceased, the effect of the rule on the defendant and other persons, and any other matters the court finds material. As a result, this Act exudes the discretion, subjectivity, and fairness that the traditional American slayer statute lacks. By consolidating language from the Forfeiture Act of 1995 and traditional American slayer statutes, the statutory solution proposed in this Article has the potential to protect the insane slayer in ways other laws have failed to do.

February 14, 2020 in Articles, Current Affairs, Estate Planning - Generally, Intestate Succession, New Legislation | Permalink | Comments (0)

Sunday, December 15, 2019

Article on The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell

ObergefellLee-ford Tritt recently published an Article entitled, The Stranger-to-the-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract to the Article.

The recent Supreme Court decision in Obergefell v. Hodges changed the legal understanding of marriage in the United States. By making same-sex marriage legal in all fifty states and requiring all states to recognize same-sex marriages from other states, the Court in Obergefell recognized evolving social attitudes toward same-sex marriage and expanded the legal definition of "marriage" to include spouses of the same sex. In so doing, the Court necessarily altered the implication of terms like "spouse," "husband," and "wife" - post-Obergefell, courts will need to construe these words in a way that acknowledges an evolving understanding of marriage. Courts have faced similar construction issues before. When the notion of the American family shifted in the mid-nineteenth century to include adopted children as "natural" children, courts struggled to ascertain donative intent behind language like "child," "children," and "descendants" that had traditionally excluded adoptees. The legalization and growing popularity of adoption made presumptive exclusion of adoptees for inheritance purposes socially obsolete, but neither society nor the law can move directly from presumptive exclusion to presumptive inclusion. In the adoption context, courts used several construction approaches to ascertain and effectuate donative intent in a period of definitional transition when words with once-plain meaning were inherently ambiguous. The construction approaches used by courts to navigate social and legal change in the context of adoption provide insight by analogy into the circumstances that courts face today, as they must construe language that no longer presumptively excludes same-sex spouses.

December 15, 2019 in Articles, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Trusts, Wills | Permalink | Comments (0)

Saturday, November 30, 2019

Celebrity Estate Problems Offer a Cautionary Tale — and Not Just for the Rich and Famous

PrinceNot having an estate plan that clearly details how a person wants to dispose of the entirety of their worldly possessions can cause messy fights between family members. If you are famous like Aretha Franklin or Prince those fights can be on the national stage for millions to watch. For the common man, the embarrasment, angst, and cost can still be painful, and unfortunately it happens everyday across the county amongst probate courts. 

The view that estate planning is only for the wealthy is changing, yet many Americans have not taken the most basic steps to ensure that their descendants and loved ones are properly provided for in the future. A recent survey by Edward Jones found that while 77% of Americans believe that estate and legacy strategies are important for everyone, only 24% of Americans have even taken the time to designate beneficiaries for all of their accounts, leaving the simplest of legacy decisions up in the air.

See Celebrity Estate Problems Offer a Cautionary Tale — and Not Just for the Rich and Famous, Market Watch, November 29, 2019.

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

November 30, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, Trusts, Wills | Permalink | Comments (0)

Saturday, November 16, 2019

Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws

Huda-Nasrallah1Huda Nasrallah, a 40-year-old human rights lawyer in Egypt who is also a Coptic Christian, has faced three judges to tackle the Islamic law of the country that dictates that women only inherit half of what males inherit. She is arguing that she should be entitled to the exact same share of her father's estate as her brothers (all of which are on her side), and she is using Christian doctrine to do so. Two prior judges have ruled against her, citing Islamic law that favor men and using it as their justification in their decisions.

Their father, a former state clerk, passed away in December of last year, leaving a 4-story apartment in a lower income neighborhood of Cairo as well as a bank deposit. The siblings filed a request for inheritance at a local court, and Nasrallah invoked a church-sanctioned Coptic bylaw that calls for equal distribution of inheritance. A final verdict is expected to be handed down later this month.

A 2016 ruling from a Cairo court favored a Coptic woman who also challenged Islamic inheritance laws, but recent cases and the sentiment in the nation does not bode well for the minority believer. Egypt's Al-Azhar, the highest Sunni religious institution in the Muslim world, vehemently dismissed the proposal that called for equal inheritance rights. He claimed that it was contradictory to Islamic law and destabilizing to Muslim societies, fearing that if the state offers equal property rights to Christian women that Muslim women will demand the same.

See Caleb Parke, Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws, Fox News, November 15, 2019.

November 16, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Travel | 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)

Friday, September 27, 2019

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, Wills, Trusts, & Estate 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.

September 27, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)

Monday, September 16, 2019

As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision

ArethaThe reigning queen of soul, Aretha Franklin, died in August of last year and the world believed that passed away without a will. But the discovery of three handwritten documents found in her home foreshadowed a rocky and emotional road for her family.

If Franklin had indeed died intestate, Michigan law dictated that because she did not have a spouse at the time of her death, her $80 million estate would have been divided equally among her four sons. But in each of the wills, provided specific provisions to be made for her oldest son, who reportedly has special needs, and that the balance of assets would then be distributed equally among her other three sons. But there remains a question of whether Franklin did create the wills herself, and the youngest son, Kecalf, convinced the judge to have a handwriting expert examine the wills to ensure his mother wrote the documents.

Aretha's niece, Sabrina Owens, was originally named the estate's personal representative, but Kecalf has also petitioned the court to replace her - with him, thus causing dissention among the family. Owens was Aretha's choice to handle her estate, and she is known to be a capable business person, but the largest asset to the estate is no surprise: the rights to the diva's music catalog and likeness. If properly managed, these can be a financial powerhouse to the heirs and preserve their mother's legacy for future generations.

See Cozen O'Connor, As Aretha Franklin’s Heirs Dispute Control of Estate, Judge Orders Court Supervision, Lexology, September 11, 2019.

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

September 16, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Music, New Cases, Wills | Permalink | Comments (0)

Tuesday, September 3, 2019

Article on Recent Cases: Intestacy, Wills, Probate, and Trusts

WillGerry W. Beyer recently published an Article entitled, Recent Cases: Intestacy, Wills, Probate, and Trusts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This article discusses judicial developments (mid-2018 to mid-2019) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly appeals in the past, probate judges can reduce the likelihood of appeals and their success and estate planners can reduce the likelihood of the same situations arising with their clients.

September 3, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Saturday, August 31, 2019

The Legal Dangers of Living Together

WeddingcakeAccording to the U.S. Census Bureau, the number of unmarried couples who 50 and over shot up 75% between 2007 and 2016. For many it is because they have already experienced one difficult divorce and are nervous to entangle themselves and their possessions again. But simply living together can end up being complex because estate planning laws were written to favor married couples.

If one partner has a medical emergency and has not executed a health care power of attorney, the other partner cannot make any decisions for them. They would be considered "legal strangers." If they were married, however, not having the document would not hinder the healthy partner from making appropriate choices. Unmarried couples also need to get signed HIPAA releases so medical information can be released to them. Death of one partner can also create more woes. Without the proper legal documents, the surviving partner won’t be entitled to make decisions regarding the donation of the deceased’s organs or arrange for the person’s burial or cremation.

When there is a financial imbalance and one partner has promised to take care of the other, with no trust or will in place can cause serious problems for an unmarried couple. If the wealthier one dies intestate, their assets will be distributed according to the intestacy laws of their state and an unmarried partner is not recognized as an heir. On the other hand, if they were married and died intestate in a community property state, the surviving spouse is automatically entitled to inherit as much as half the value of the deceased’s assets.

See Brad Wiewel, The Legal Dangers of Living Together, Next Avenue, August 28, 2019.

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

August 31, 2019 in Current Affairs, Disability Planning - Health Care, Estate Administration, Estate Planning - Generally, Intestate Succession, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Tuesday, August 27, 2019

Article on Big Data and the Modern Family

ModernfamilyShelly Kreiczer-Levy recently published an Article, Big Data and the Modern Family, 2019 Wis. L. Rev. 349-372 (2019). Provided below is an abstract of the Article.

Despite numerous reforms over the years, intestate succession rules continue to privilege traditional, white, heterosexual families. It is evident that the one-size-fits-all scheme cannot truly reflect diversity of lifestyles and associations. This Article considers an innovative option that has become increasingly popular in recent years: using big data to create personalized rules, tailored to the personal characteristics of each decedent. This Article explores the promise and drawbacks of personalized intestacy, arguing that personalized default rules fall short in the realm of inheritance, because these rules are personal and inheritance law is inherently relational. It then offers preliminary guidelines for adapting big data techniques to the relational aspects of inheritance.

August 27, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Intestate Succession, Wills | Permalink | Comments (0)