Wills, Trusts & Estates Prof Blog

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

Wednesday, November 13, 2019

CLE on Current Developments in Estate and Tax Planning 2019

CLEThe National Business Institute is holding a webcast entitled, Current Developments in Estate and Tax Planning 2019, on Thursday, December 5, 2019 at 12:00 p.m. to 1:30 p.m. Provided below is a description of the event.

Why You Should Attend

Do you want to provide your estate planning clients with the best possible advice going into the new year? Are you up-to-date on the most significant developments to have come out of 2019? Set aside just 90 minutes to gain valuable insights on emerging trends in estate and tax planning, and learn how the newest cases, IRS guidance, and proposed regulations will impact your practice and your clients’ estate plans.

What You Will Learn

The faculty, all Fellows of The American College of Trust and Estate Counsel and highly-experienced estate and tax planning practitioners, anticipate discussing:

• Inflation adjustments
• IRS Priority Guidance Plan
• Court decisions of significance, including: Kress, Jones, Dieringer, Kaestner / Fielding
• Presidential candidate proposals
• SECURE Act
• Anti-clawback regulations
• Estate and gift tax proposed legislation
• Uniform basis PLRs
• PLR on §1041 & grantor trusts
• Regulations on 170 SALT limitation workaround
• IRS Chief Counsel Advice on high/low trading prices

Additional breaking topics may be added as we get closer to the date of the program.

All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend

Estate planners and other related professionals will benefit from this CLE on estate and tax planning developments jointly offered by the ALI CLE and ACTEC.

November 13, 2019 in Conferences & CLE, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, New Cases, New Legislation, Trusts, Wills | Permalink | Comments (0)

Monday, November 11, 2019

Case Note on Disability Law Center of Alaska v. Davidson

NaelaAdriona Horton recently published a Case Note on Disability Law Center of Alaska v. Davidson, NAELA Journal Online, July 2019. Provided below is an introduction to the Case Note.

On March 28, 2018, the U.S. District Court for the District of Alaska, in Disability Law Center of Alaska v. Davidson denied defendants’ motion for summary judgment on plaintiffs’ three Title 42 U.S.C. § 1983 claims alleging that defendants were in violation of federal Medi­caid law by failing to do the following:

    1. Provide adequate notice on how to apply for and access applied behavioral analysis (ABA) therapy under the Alaska early and periodic screening, diagnostic, and treatment (EPSDT) program;
    2. Reimburse for ABA under the program; and
    3. Provide ABA services under the program with reasonable promptness.
      Plaintiffs’ cross-motion for summary judgment was granted as to their claim that defendants were required to provide ABA services as part of the state EPSDT program and that the Centers for Medicare & Medicaid Services (CMS) was not authorized to relieve them of that obligation.

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

November 11, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Thursday, November 7, 2019

Man Had Medical Emergency In Prison, Claims Life Sentence Now Fulfilled

JailBenjamin Schreiber was found guilty of first-degree murder in 1997 and sentenced to spend the rest of his life in Iowa State Penitentiary. He was hospitalized in 2015 with septic poisoning caused by large kidney stones. According to court documents, he was unconscious. He was resuscitated though he claims that he executed a DNR  several year before, and had surgery to repair the damage to his kidneys.

Schreiber filed for post-conviction relief in April 2018, claiming that because he momentarily died at the hospital, he fulfilled his life sentence and should be freed immediately. The district court dismissed his claim, stating that it was "unpersuasive and without merit." The Iowa Court of Appeals affirmed the lower court's decision, saying that until a medical examiner declares Schreiber deceased, his prison sentence is to continue. The district court did not address Schreiber's additional claim that his due process rights were violated when the doctors failed to follow his "do not resuscitate" request, court records show. The court of appeals said in its ruling that it could not address the matter either as a lower court had not made any judgment on it.

See Anna Spoerre, Man Serving Life Sentence Says it Ended Once He Died, Was Revived in Medical Emergency, USA Today, November 7, 2019.

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

November 7, 2019 in Current Affairs, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Tuesday, November 5, 2019

Don’t Rely on a Post-It® Note to Amend Your California Trust

TrustsProcrastination seems to always invite disaster, and even when something appears to be simple, waiting until the last minute can cause mistakes. A California court had to decide an issue that dealt with procrastination: What happens when a settlor does not fully comply with the trust instrument’s modification procedure, even though it’s highly obvious that he intended to amend his trust?

The California Court of Appeal decided recently in Pena v. Dey (2019) 39 Cal.App.5th 546 that the issue must be faced with strict compliance of the trust's modification procedures, which indicated that any amendment “shall be made by written instrument signed by the settlor and delivered to the trustee.” James Robert Anderson created the trust in 2004, making himself both settlor and trustee. He executed an amendment in 2010, and shortly afterwards was diagnosed with cancer. James called an attorney in early 2014 to amend his trust so as to add Grey Dey, a friend that had been assisting him, as a beneficiary. The attorney told him to send him the trust documents with all necessary changes, and he received the interlineations in March 2014 with a Post-it note, on which James wrote: “Hi Scott, Here they are. First one is 2004. Second is 2008. Enjoy! Best, Rob.” Sadly, James passed away in May before he could review and sign the second amendment.

Margaret Pena, the successor trustee, petitioned the trial court for instructions as to whether the interlineations constituted a valid amendment. The trial court granted the trustee's motion for summary judgement, holding tight to the trust amendment formality requirements. The appellate court affirmed the trial court's decision, finding that the written document itself had not been signed and that the Post-It® Note could not provide for the missing signature line.

See Christopher Miles Kolkey, Don’t Rely on a Post-It® Note to Amend Your California Trust, Trust on Trial, October 28, 2019.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) and Jim Hartnett, Jr. (Dallas, Texas Probate Attorney) for bringing this article to my attention.

November 5, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Friday, November 1, 2019

Book on Wills, Trusts, and Estates: A Contemporary Approach

WillsbookLloyd Bonfield, Joanna L. Grossman, and William P. LaPiana recently published a Book entitled, Wills, Trusts, and Estates: A Contemporary Approach, West Academic (2019).  Provided below is a summary of the book.

This casebook is designed to present in a comprehensive yet streamlined fashion the law of Wills, Trusts, and Future Interests to 21st–century law students. It assists the student in developing an understanding of the core legal concepts critical to a grasp of wills, trusts and future interests in a novel format that is clear and easy to understand, while maintaining the intellectual rigor of the subject. The book covers the standard topics, but is organized in an innovative fashion. It begins with an estate planning problem which introduces the student to the craft of the practitioner, providing context for the introduction of substantive law. It then presents the law of wills law by reference to the law governing the testator, the document and the property. Attention is given to non-probate transfers, and in particular, the law of trusts, private and charitable. A model trust instrument is also provided. It concludes with a comprehensive look at future interests and the rule against perpetuities. As with other books in the Interactive Casebook Series, it challenges students to think about issues raised by the cases as they are considered in the opinion through the use of text boxes. The accompanying electronic version allows students immediate access to the full text of cited cases, statutes, articles, and other relevant materials.

November 1, 2019 in Books, Books - For the Classroom, Estate Administration, Estate Planning - Generally, New Cases, New Legislation, Trusts, Wills | Permalink | Comments (0)

Monday, October 28, 2019

Native Hawaiian Heiress Faces Court Test to Control Millions

Kawananakoa93-year-old Abigail Kawananakoa is considered a princess of Hawaii by the natives because she is descended from the family that ruled the islands before the kingdom was overthrown, but she inherited for $215 million fortune by being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii's largest landowners. She suffered a stroke in 2017 and since then has fought over control of her trust.

Kawananakoa married her 63-year-old partner of 20 years, Veronica Gail Worth, shortly after the stroke. She also attempted to fire her longtime attorney, Jim Wright, after he argued that she was incapacitated due to the medical incident became her trustee. He also helped her with the $100 million foundation she created in 2001 for Hawaiians. Attorneys for the foundation filed petitions for a guardianship for Kawananakoa, claiming her wife is manipulating her.

Kawananakoa watched the hearing seated next to her wife, with the couple's little chihuahua on her lap. The judge ruled that the there will be an evidentiary hearing to determine whether there should be a conservator for the heiress, and that she is required to undergo a medical examination before the hearing.

See Andrew Court, Native Hawaiian Heiress Faces Court Test to Control Millions, Daily Mail, October 25, 2019.

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

October 28, 2019 in Current Events, Elder Law, Estate Administration, Estate Planning - Generally, Guardianship, New Cases | Permalink | Comments (0)

Beware of Dormant Creditor Claims in California Probate Cases

CourtIn 2013, a man in California by the name of Richard Holdaway passed away. Almost a year later, Patricia Everett filed a petition in San Bernardino County Superior Court to probate his estate and she also filed a creditor’s claim seeking $90,875. However, she did not pursue the petition, and the court dismissed it "without prejudice." A few months later, she refiled another probate petition under the same cause number, but Richard's son also filed a petition, claiming he was named executor in his father's will. The son's petition was granted, and he rejected Everett's creditor claim. 2 months after the executor's rejection, on May 19, 2017, she filed a complaint against him in the amount of her original creditor's claim, Estate of Holdaway.

The trial court agreed with the son, who argued that under California Code of Civil Procedure section 366.2, claims against a decedent must be filed within a year of the decedent’s death, and therefore dismissed the claim. However, the appellate court reversed, finding that the claim was in fact dormant. When Everett's original probate petition was dismissed, the court did not reject her claim as a creditor, so the tolling of the claim continued until an executor eventually rejected, allowed, or approved it. Everett then timely filed a complaint to pursue the claim.

The case was one of first impression, and can be a lesson for creditors as well as estate beneficiaries. If a creditor initiated a probate proceeding, there may be a viable creditor’s claim on file with the court and years could elapse before the creditor comes forward to try to collect on that claim.

See Jeffrey S. Galvin, Beware of Dormant Creditor Claims in California Probate Cases, Trust on Trial, October 21, 2019.

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

October 28, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Thursday, October 3, 2019

CLE on 45th Annual Trust and Estate Conference at USC Gould School of Law

CLEThe University of Southern California Gould School of Law is holding a conference entitled, 45th Annual Trust and Estate Conference, on Friday, November 22, 2019 at The Westin Bonaventure Hotel in Los Angeles, California. Provided below is a description of the event.

why attend?

High-Quality Education

For over 40 years, USC Gould’s Trust and Estate Conference has provided high-quality continuing education customized for trust, estate planning, probate and elder law professionals.

Practical and Realistic Solutions

The Conference has a proven track record of teaching practical and realistic solutions to everyday and unexpected problems in estate planning, trust administration, probate, trust and estate litigation, elder law and client relationships. Speakers often share “howto” techniques and forms used in their practices.

Unrivaled Networking

Over 500 of your peers registered for the Conference last year for an unrivaled networking and learning opportunity from both the speakers and your professional colleagues.

who should attend?

The Conference is specially tailored for trust, estate planning, probate and elder law professionals including attorneys, paralegals, trust officers, accountants, financial institution executives, private professional fiduciaries, wealth management professionals, fiduciary officers, underwriters and insurance advisors.

what’s included?

Registration includes all sessions, continental breakfast, networking breaks, luncheon presentation, continuing education credit, and print and downloadable copies of the practical Conference Syllabus including the popular Resource Guide, a Trust and Estate Professional Directory covering Los Angeles, Orange and San Diego counties.

Free WiFi and an Event App will also be available for attendees at the Conference!

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

October 3, 2019 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Cases, New Legislation, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Tuesday, September 24, 2019

In with a Bang and Out with a Whimper: Second Circuit Challenge to Popular Withdrawal Liability Calculation Method Settles

PensionA case that was watched by many employers and pension plan members alike went out with little drama, as the Second Circuit docket sheet of New York Times Company v. Newspaper and Mail Deliverers' Publishers' Pension Fund pinged to life with a stipulation withdrawing the case with prejudice on last Monday.

The issue that was the great importance to its many followers was that of the challenge to the Segal Blend discount rate assumption, used by many multiemployer pension plans to calculate employer withdrawal liability. Any variation to this discount rate assumption can have a massive effect on the liability. ERISA requires actuaries to select a discount rate for withdrawal liability and an interest rate for minimum funding purposes that reflect the actuary's "best estimate of anticipated plan experience."

The New York Times argued that the Fund's 7.5% interest rate reflected the actuary's best estimate, the 6.5% Segal Blend rate did not, and the Fund must employ a higher rate, thus decreasing the withdrawal liability of the employer. The arbitrator upheld the use of the Segal Blend rate and the case went to trial, where the Southern District of New York reversed the arbitrator, finding that the Segal Blend runs afoul of the statutory requirement to use a discount rate that reflects the actuary's best estimate of anticipated plan experience. The Fund appealed, but the case was dismissed with prejudice due to an obvious settlement.

The dismissal of the case means that the Southern District of New York's opinion still stands, but the opinion will not be binding authority for many employer withdrawals. The opinion can be useful for employers to challenge the use of the Segal Blend, while the District of New Jersey’s decision upholding the use of the Segal Blend in Manhattan Ford Lincoln, Inc. v. UAW Local 259 Pension Fund will assist funds defending their use of the Segal Blend. That case was also settled before it made it to the next level of appellate court.

See Gregory J. Ossi & Christopher R. Williams, In with a Bang and Out with a Whimper: Second Circuit Challenge to Popular Withdrawal Liability Calculation Method Settles, National Law Review, September 18, 2019.

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

September 24, 2019 in Estate Planning - Generally, New Cases, Non-Probate Assets | Permalink | Comments (0)

Friday, September 20, 2019

Court Holds That A Trustee Has To Serve Until Properly Replaced

CourtroomA Texas court has held that when a trust document does not state the procedure for the appointment of a successor trustee under the current circumstances, the Texas Trust Code will come into play. In Waldron v. Susan R. Winking Trust, the court also ruled that "A trustee’s fiduciary duties are not discharged until the trustee has been replaced by a successor trustee," and thus the resigning trustee was allowed to bill for reasonable expenses and fees.

The beneficiary, the daughter of the settlors, appealed the court's decision, believing that the trustee's resignation was complete the moment she received the letter of resignation. She had petitioned the court to allow for herself to be appointed trustee as an individual after she could not find another bank that would agree to act as trustee. The appeals court affirmed the lower court's decision, stating that "Since no bank or trust company could be found that was willing to serve, Waldron could not appoint a successor and her attempt at removal by letter without naming a bank or trust company as successor was ineffective." Although the current trustee was "ready and willing to be replaced," the court said, the trustee "was obligated to continue in the performance of his duties until replaced by a successor trustee."

See David Fowler Johnson, Court Holds That A Trustee Has To Serve Until Properly Replaced, Tx Fiduciary Litigator, September 17, 2019.

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

September 20, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)