Wills, Trusts & Estates Prof Blog

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

Monday, November 11, 2019

Here’s a Way You Can Help Fight Alzheimer’s

AlzMicrosoft founder Bill Gates has become a prevalent advocate for Alzheimer's Disease in recent years, and believes that finding enough volunteers to participate in medical studies that will help us understand the disease better is a compounding problem. As the population ages, more and more individuals are suffering from this terrible condition. Nearly 6 million Americans are living with the disease today, and it is estimated that by 2050, the number could be as high as 14 million.

No new drug for Alzheimer's has been presented in over 15 years, in part due to the fact that clinical studies for the disease run 4 to 8 years compared to 1.5 years with studies for cardiovascular diseases. After the expensive process of diagnosing Alzheimer's, it is still difficult for a potential patient to enter into a clinical trial. 1 out of 10 people screened for certain types of Alzheimer’s trials will actually qualify, and 80% of do not meet their recruitment goals on time. So how can these issues be resolved?

  • Increase awareness of Alzheimer’s disease so patients start seeking help earlier in the disease’s progression.
  • Develop better diagnostics so that doctors can detect the disease sooner and help people enroll in the right clinical trials, including blood tests.
  • Raise awareness of—and  hopefully openness to—clinical trials among doctors and patients alike.

See Bill Gates, Here’s a Way You Can Help Fight Alzheimer’s, Gates Notes, November 5, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

November 11, 2019 in Current Affairs, Disability Planning - Health Care, Estate Planning - Generally, Science | Permalink | Comments (0)

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)

Sunday, November 10, 2019

Why Ashton Kutcher is Leaving Nothing to his Kids

AshtonAshton Kutcher and his wife, Mila Kunis, stated recently that they plan to leave their children nothing, instead giving any money they have earned from Hollywood or their investments to charity, including sex-trafficking causes. Kutcher has invested in several tech companies with his venture capital firm A-Grade Investments, so he understands that his children are already living what he believes is a "privileged life." He specifically said that they will not be receiving any trust funds.

Half of people that are destined to receive an inheritance receive $50,000 or less, and 30% will receive between $50,000 and $249,000 according to Federal Reserve data. Completely cutting off children is an unorthodox approach; teaching them positive life-long habits that can contribute to more beneficial payoffs may be more proactive, and could bloom into long-term financial security.

See Mitch Tuchman, Why Ashton Kutcher is Leaving Nothing to his Kids, Market Watch, November 9, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

November 10, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Film, Television, Trusts, Wills | Permalink | Comments (0)

Saturday, November 9, 2019

IRS Approves Newspaper’s Bid to be a Public Charity

SaltlaketribuneA newspaper: those smooth sheets with today's top headlines printed out in black ink that may subtly smear and transfer to your fingers as you slowly flip through the numerous papers, reading your fill. Now almost all of them are digital and come to you at all hours, all angles, and with no ink at all. Another change may now be on the horizon: The Salt Lake Tribune has announced that it is now recognized by the Internal Revenue Service (IRS) as a 501(c)(3) organization.

Once reserved for churches and schools, the Tax Code states that any business or organization operated exclusively for religious, charitable, scientific, testing for public safety, literary, educational, or other specified purposes and that meet certain other requirements may receive status. The Tribune says that as of October 29, 2019, earlier than they estimated they would hear back from the IRS, which usually processes tax exempt applications within a 3-6 month period.

Contributions to the paper will now be tax-exempt, and the Tribune is already soliciting donations. They will be bound by the same rules and guidelines as any charitable organizations, which means that they will cease all endorsements of political candidates, though they can continue to cover political news stories. Non-profit corporations are not privately owned, rather governed by a board of directors, so owner Paul Huntsman has to give up ownership of the paper, though he will remain as the publisher. Why the change? Huntsman said the current business model was simply not working anymore. "We needed to find a way to sustain this vital community institution well beyond my ownership, and non-profit status will help us do that. This is truly excellent news for all Utah residents and for local news organizations across the country.”

See Kelly Phillips Erb, IRS Approves Newspaper’s Bid to be a Public Charity, Forbes, November 5, 2019.

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

November 9, 2019 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Friday, November 8, 2019

Article on Private Land Conservation and Public Policy: Land Trusts, Land Owners, and Conservation Easements

LandDominic P. Parker & Walter N. Thurman recently published an Article entitled, Private Land Conservation and Public Policy: Land Trusts, Land Owners, and Conservation Easements, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

We highlight the extraordinary growth in private conservation via land trusts and conservation easements and describe the problems arising from the interplay of public finance and private decisions. We offer a framework for understanding the popularity of easements and land trusts and for evaluating policy reforms aimed at improving their performance. The framework, grounded in institutional and organizational economics in the tradition of Ronald Coase, Oliver Williamson, and Yoram Barzel, focuses on the measurement and monitoring costs faced by public and private stakeholders under current and prospective policy arrangements. We illustrate how the framework can be applied to contemporary debates about the appropriate tax treatment of donated easements, requirements that they be held in perpetuity, and the extent to which government should regulate private land trusts.

November 8, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Trusts | 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

The American College of Trust and Estate Counsel Releases Ten-Part Charitable Giving Podcast Series

ActecWashington, DC, November 4, 2019: The American College of Trust and Estate Counsel (ACTEC) today released a ten-part, topic-based podcast series on Charitable Giving, offering the expertise of Fellows who provide best practice advice, insights and commentary on subjects relevant to those in the wealth management profession.

Fellows of ACTEC’s Charitable Planning and Exempt Organizations Committee consider all aspects of charitable planning and charitable giving including charitable deductions, private foundations, excise taxes, Charitable Remainder Trusts (CRT), Charitable Lead Trusts (CLT), Charitable Gift Annuities, individual Donor-Advised Funds (DAF) and charitable pledges. The committee regularly reviews and discusses tax and other issues affecting charitable organizations including public charities and endowment matters.
The feature series debuts at ACTEC Trust and Estate Talk, a weekly podcast created for trust and estate management professionals. Listeners can subscribe at iTunes, SoundCloud, Stitcher, Spotify, and Google Play.

“The ACTEC Charitable Giving series offers attorneys and their clients accessible information about significant aspects of charitable giving from experts in those areas,” said Susan Snyder, ACTEC Fellow and Executive Producer of ACTEC Trust and Estate Talk. “Attorneys can share the podcast links with clients who would like more information to help inform their charitable planning decisions.”

ACTEC’s podcast series will feature the following:

    • Basic Charitable Giving with ACTEC Fellow Glenn G. Fox
    • An Introduction to Individual Charitable Deductions with ACTEC Fellow Robert P. Goldman
    • A Primer on Private Foundations with ACTEC Fellow John McGown, Jr.
    • An Introduction to Private Foundation Excise Taxes with ACTEC Fellow Neil T. Kawashima
    • Charitable Remainder Trusts (CRT) with ACTEC Fellow Matthew G. Brown
    • A Primer on Charitable Lead Trusts (CLTs) with ACTEC Fellow Kirk A. Hoopingarner
    • Charitable Gift Annuities with ACTEC Fellow Roger Shumaker
    • Deferred and Flexible Charitable Gift Annuities with ACTEC Fellow Brad Bedingfield
    • An Introduction to Individual Donor-Advised Funds (DAF) with ACTEC Fellows Edward J. Beckwith and Christopher R. Hoyt
    • An Introduction to Charitable Pledges with ACTEC Fellows Reynolds T. Cafferata and William Finestone

November 5, 2019 in Conferences & CLE, Current Events, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (0)

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)

Monday, November 4, 2019

Article on Fusion: Can It Encompass the Trust? An Assessment in Light of the Trusts Bill 2017

NZAnna Mclean recently published an Article entitled, Fusion: Can It Encompass the Trust? An Assessment in Light of the Trusts Bill 2017, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This paper applies the fusion debate to the most recent reform of the law of trusts in New Zealand, the Trusts Bill. The fusion debate centres around whether a distinct role for equity is needed, or whether the common law and equity can integrate to form one unitary body of law. It aims to achieve coherence in the law – where equitable and common law doctrines aim to achieve the same objectives, it is incoherent to maintain reference to two distinct sets of rules. The Trusts Bill is analysed in light of this – can equity’s traditional flexibility and conscience-based approach be seen in the Bill and in the wider reform process? These values are often used to differentiate between equity and the common law. This paper argues that the Trusts Bill does take incremental steps towards fusing common law and equity even in relation to the trust, traditionally the heartland of a distinct equitable jurisdiction. Flexibility and conscience-based reasoning do not differentiate the law of trusts as seen in the Trusts Bill from common law doctrines. The shift towards a statutorily-defined framework, the language used throughout the Bill and the underlying rationale behind reform all show incremental steps towards fusion occurring even if complete fusion cannot yet be seen. The future of fusion is left to the courts, but the Trusts Bill shows increasing fusion even in this area of the law is possible.

November 4, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Saturday, November 2, 2019

Why Do People Hate Estate Taxes But Love Wealth Taxes?

MoneyPeople of all tax brackets seems to revile the federal estate tax but are enchanted by a proposed wealth tax. They both appear to slow down wealth inequality by taxing a low number of highly fortunate Americans, so why the difference in affections? Could it be simply that the estate tax has been in force for an extended amount of time while the wealth tax is shiny and new?

Both Elizabeth Warren and Bernie Sanders have proposed net worth taxes, which is how wealth taxes are usually defined. In April, Quinnipac University conducted a poll that found that 60% of respondents liked the idea of a 2% annual tax on “wealth over $50 million”; 34% opposed the idea. However, Quinnipac also ran a survey in November of 2017 and found that 48% of respondents in support of estate tax repeal while 43% wanted it to stay in place.

When the estate tax exemption was first created in 1942, it was set at $60,000 - equivalent just below $1 million today - and stayed there for a whopping 34 years. By the time lawmakers increased the estate tax exemption in 1976, that $60,000 exemption was worth about a quarter of what it had been in 1942. Opponents fought it on different grounds, including double taxation, and it was even repealed in 2001, only to be brought back from the grave just 10 years later. With the amount the exemption is at today, 99.4% of estate are exempt from it. This means that the top 10% of American income earners pay more than 90% of the estate tax; almost 40% is paid by the richest 0.1%.

See Joseph Thorndike, Why Do People Hate Estate Taxes But Love Wealth Taxes?, Forbes, October 30, 2019.

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

November 2, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, New Legislation | Permalink | Comments (0)