Wills, Trusts & Estates Prof Blog

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

Friday, April 19, 2019

Cascading Fortunes Require Careful Counsel

WilltestamentThough trillions of dollars are expected to pass down through to the next generations, many individuals such as Prince and Aretha Franklin are not seeking competent counsel to assist in efficient estate planning. Writing a will is a clear help in ensuring the smooth transfer of people’s wealth to their heirs, but six in 10 Americans do not have one, according to the Princeton Survey Research Associates International.

The culprit could be that until death is staring into a person's eyes, that person has no urgency to circumvent the final consequences of it. “Since people don’t think they’re going to die this week, they put it off to the next year and then the next,” says Christopher Cooke, the Indianapolis-based partner at Cooke Financial Group, which is part of Sanctuary Wealth Partners. Preparation of trusts, powers of attorney and health proxies are also important considerations for many clients in planning for old age and mortality.

Chief executive Kim Luu-Tu of Generations Wealth Management, part of Ameriprise Financial, say that by asking more probing questions about a client’s aims in passing on their fortunes and the circumstances of any heirs, she aims “to make sure advice is coordinated” with the other estate planning professionals. It also is important to ask as a bridge between the generations.“It’s crucial to include the children so that they also understand the wishes of their parents and the duties that they might inherit together with the wealth,” says Mr Cooke.

Stavis & Cohen Financial, part of the Advisor Group, provides online material to clients’ children on topics such as budgeting, individual retirement accounts and trusts.

See Rita Raagas De Ramos, Cascading Fortunes Require Careful Counsel, Financial Times, April 17, 2019.

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

April 19, 2019 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Thursday, April 18, 2019

CLE on Final Accounting in Estate Administration

CLEThe National Business Institute is holding a teleconference entitled, Final Accounting in Estate Administration, on Wednesday, April 24th, at 12:00 P.M. to 1:30 P.M. Central. Provided below is a description of the event.

Program Description

Wrap Up Your Client's Estate Administration Quickly and Effectively

Once all the vital documentation is compiled and the creditors appeased, it's time to lay the decedent's affairs to rest. Do you have the knowledge and skill to distribute assets and file the final tax return to close the door on any future disputes and litigation? Our straightforward instruction will help you ensure thorough accounting and settlement of the estate and fair final distribution to heirs. Register today!

  • Find out how to speed up final accounting by getting started early in estate administration.
  • Learn how to properly record all receipts in the final accounting.
  • Gain confidence in handling the most common problems related to disbursements.

Who Should Attend
This course is designed for attorneys. Accountants, trust officers, estate planners, and tax advisers may also benefit from attending.

Course Content

  • Starting the Accounting at the Outset
  • Closing the Estate - The Options
  • Final Accounting: What is Included
  • Service Requirements
  • Final Tax Returns
  • Mishaps to Avoid

April 18, 2019 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Trusts, Wills | Permalink | Comments (0)

Article on The Golden Years, Gray Divorce, Pink Caretaking, and Green Money

SilverNaomi Cahn recently published an Article entitled, The Golden Years, Gray Divorce, Pink Caretaking, and Green Money, Elder Law eJournal (2018). Provided below is an abstract of the Article.

This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs to change as well. Nonetheless, notwithstanding changing family forms and roles and economic disparities, we have not made the requisite changes to prepare for the forthcoming silver tsunami.

April 18, 2019 in Articles, Current Affairs, Current Events, Elder Law, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Cremation Mystery Besets Family: 2 Sets of Ashes for 1 Man

UrnThe family of Robert Nero, Sr. has been cherishing an urn they believed contained the patriarch's ashes after he passed away in 2013, placing it on a place of honor on his widow's mantle. They have recently learned that the urn may not contain their loved one's ashes, but instead the cremains of someone else entirely.

On March 25, a West Palm Beach YWCA worker, Scott Manochi, was clearing brush when he found two piles of ashes and two metal identification disks from a crematorium. Police contacted the crematorium, which stated that the ashes belonged to Nero and another person, and that they had handled the bodies for Stevens Brothers Funeral Home. The funeral home sent an employee to collect the ashes, Willie Watts, who also does grounds work for the YWCA. When contacted by a reporter, Watts feigned ignorance about the entire situation.

Miami Dade College mortuary science professor Joseph Finocchiaro said it's unlikely the ashes could have been outdoors for long, as weather conditions would have scattered them. Cremation almost always destroys the DNA of a person, so it would be nearly impossible to determine which ashes are truly Nero's. The answer may lie with the silver disk that accompanied the found pile of ashes. That disk is with the ashes through every step from the crematorium to the mortuary to the family, Finocchiaro says.

See Terry Spencer and Joshua Replogle, Cremation Mystery Besets Family: 2 Sets of Ashes for 1 Man, Fox News, April 16, 2019.

April 18, 2019 in Current Events, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 17, 2019

The Funeral as we Know it is Becoming a Relic - Just in Time for Death Boom

FuneralsIn a time where America is becoming more secular, people are embracing end of life celebrations instead of somber memorials and funerals. These parties celebrating a person's life are becoming extravagant and sunny fiestas, and less dark suit affairs. Funerals are not the first ceremonies to change in our era, considering there are now destination weddings and theatrical baby gender reveals.

The movement will accelerate as the nation approaches a historic spike in deaths. By 2037, 3.6 million people are projected to die in the United States, according to the Census Bureau, 1 million more than in 2015, which is projected to outpace the growth of the overall population.  28% of people chose cremation instead of traditional burials in 2002, but now more than half of Americans are choosing this less expensive option. By 2035, the cremation rate is projected to be 80% according to the National Funeral Directors Association.

The funeral industry is adapting to the evolving society and culture of America. Funeral homes have hired event planners, remodeled drab parlors to include dance floors and lounge areas, acquired liquor licenses to replace the traditional grief laced industrial-strength coffee. Mark Musgrove, a former president of the National Funeral Directors Association who runs a network of funeral homes and chapels in Eugene, Oregon, says that he has even organized memorials in Autzen Stadium, home of the University of Oregon's Ducks football team.

See Karen Heller, The Funeral as we Know it is Becoming a Relic - Just in Time for Death Boom, SF Gate, April 15, 2019.

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

April 17, 2019 in Current Affairs, Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

CLE on For Better or for Worse: Spousal Rights in Retirement Plans

CLEThe American Law Institute is holding a webcast entitled, For Better or for Worse: Spousal Rights in Retirement Plans, on Tuesday, May 14, 2019, from 12:00 – 1:30 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend
While the available tax incentives motivate more and more people to hold substantial wealth in qualified plans and individual retirement accounts, many plan participants don’t understand how the distributions work or how to pass that tax benefit on to their beneficiaries. Who can be a designated beneficiary? How do the distribution options change for beneficiaries that are spouses vs. non-spouses? What happens when the account owner is divorced or remarried?

In this 90 minute webcast, we’ll explore how spousal rights to retirement plans can vary from state to state and what your clients can to do ensure that their assets go to their intended party.

What You Will Learn
The presenters, all highly experienced estate planning practitioners and Fellows of the American College of Trust and Estate Counsel (ACTEC), will review:

The impact of Windsor and Obergefell on retirement plan benefits in same-sex unions
Spousal rights in retirement plans subject to ERISA
How spousal rights can vary considerably among the common law and community property states
ERISA preemption of state laws
Case studies illustrating spousal rights in both common law and community property states
Best practices in planning to maximize chances that clients’ intended outcome will occur

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

Who Should Attend
All estate planners and employee benefits practitioners will benefit from attending this webcast from ALI CLE and ACTEC.

April 17, 2019 in Conferences & CLE, Current Events, Estate Administration, Estate Planning - Generally, New Cases, Non-Probate Assets | Permalink | Comments (0)

Article on A Historical Examination of the Constitutionality of the Federal Estate Tax

ConstitutionHenry Lowenstein & Kathryn Kisska-Schulze published an Article entitled, A Historical Examination of the Constitutionality of the Federal Estate Tax, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.

April 17, 2019 in Articles, Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0)

Tuesday, April 16, 2019

Sperm Donor Tells Australian High Court He is the Legal Father to Lesbian Couple's Daughter

FamilylawRobert Masson, as he is known to Australia's High Court, claims that he is the legal father to a lesbian couple's young daughter. He states that one of the women, a friend of his for 25 years, approached him to donate sperm on the contingency that he would play an important role in the future child's life. He is listed as the biological father on the girl's birth certificate, and he insists that she refers to him as "daddy."

He did not assert his legal claim to the girl until the couple wanted to take her out of the country. Now there is a constitutional issue as the parties argue that state law and Commonwealth law have different perspectives, one stating that a sperm donor is a legal father while according to the other the sperm donor is not.

A judge presiding over the case asked Tuesday: “Is there not a difference between the university student who is a donor to a sperm bank for a few bob and the sperm donor who plays a role in the life of the child?” The result of this case is primed to be a landmark decision in the argument over what the legal requirements are to be a parent.

See Kaylie Piecuch, Sperm Donor Tells Australian High Court He is Legally Father to Lesbian Couple's Daughter, Fox News, April 16, 2019.

April 16, 2019 in Current Affairs, Current Events, Estate Planning - Generally, New Cases, Science, Travel | Permalink | Comments (0)

Book on The Oxford Handbook of Fiduciary Law

FiduciarybookEvan J. Criddle, Paul B. Miller, and Robert H. Sitkoff recently edited a book entitled, The Oxford Handbook of Fiduciary Law, (1st ed. 2019). Provided below is a summary of the book.

  • Examines how fiduciary principles apply in eighteen different fields of law, including agency law, trust law, corporate law, pension law, bankruptcy law, family law, employment law, legal representation, health care, and international law
  • Provides clear guidance on essential concepts and principles of fiduciary law, including the defining characteristics of fiduciary relationships, the duty of loyalty, the duty of care, mandatory and default rules, and fiduciary remedies
  • Offers new historical, comparative, and interdisciplinary perspectives on fiduciary law
  • Includes original essays from leading fiduciary law scholars exploring perennial challenges and future directions for the field
  • No book currently available provides an overview of fiduciary law that is as rich or comprehensive as this volume

For more information about the material within the book, see here.

Special thanks to Garrett A. Heckman (Palm Springs, California Attorney) for bringing this article to my attention.

April 16, 2019 in Books, Books - For Practitioners, Estate Administration, Estate Planning - Generally, Professional Responsibility, Trusts | Permalink | Comments (0)

California Estate Tax: Gone Today, Here Tomorrow?

RobinhoodRecently, California State Senator Scott Wiener introduced a bill that would impose estate, gift, and generation-skipping transfer tax on any transfers, both during life and at death, after December 31, 2020. California law dictates that if the legislation passes any new bill that imposes transfer tax, the law does not go into effect unless the voters approve it. So if the bill passes the California Legislation, the bill will be on the November 2020 ballot.

Under the proposed bill, taxpayers will be subject to a 40% tax rate of all transfers, same as the federal rate. There will be a credit for transfer taxes paid to the federal government to avoid double taxation. But where the federal basic exclusion amount for each type of transfer is $11,400,000 and is adjusted for inflation, the California exclusion amount will only be $3,500,000 and will not be adjusted for inflation. Among several of the issues and complexities that accompany the bill, with a full credit for federal transfer taxes, only estates between $3,500,000 and $11,400,000 will be subject to the California tax. Essentially, an estate of a Californian worth $100,000,000 would pay the same California estate tax as someone with an estate of $11,400,000. There is also no marital deduction in the current draft, but this is most likely an oversight and should be resolved.

All of the monies generated from the bill, including the transfer taxes themselves, interest, and penalties would fund the proposed Children’s Wealth and Opportunity Building Fund, which will fund programs to help address socio-economic inequality.

See California Estate Tax: Gone Today, Here Tomorrow?, National Law Review, April 4, 2019.

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

April 16, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Legislation, Wills | Permalink | Comments (0)