Wills, Trusts & Estates Prof Blog

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

Thursday, September 12, 2019

Article on Janus as a Client: Ethical Obligations When Your Client Plays Two Roles in One Fiduciary Estates

TrustsKaren E. Foxx & Philip N. Jones recently published an entitled, Article on Janus as a Client: Ethical Obligations When Your Client Plays Two Roles in One Fiduciary Estates, ACTEC L.J., Vol. 44 No. 3 (2019). Provided below is an abstract of the Article.

Is it possible for an attorney to have a conflict of interest when the attorney represents a trustee who is also a beneficiary of the trust? Is that situation similar to having two clients? What if the trustee is not only a beneficiary, but also a claimant against the trust? Since the trustee has three roles to play, is that situation similar to the attorney having three clients? The issue presented by these potential conflicts was one of the most vexing for the drafters of the Fifth Edition of the ACTEC Commentaries. The range of possible approaches goes from a requirement that a separate lawyer is needed for each role to a view that a client with multiple roles can rely on one lawyer. This article examines the various court and ethics opinions, considers the arguments for the different approaches, and recommends best practices for attorneys when their clients have such conflicts.

September 12, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Clinic Ordered To Reveal Sperm Donor List After Baby Mix Up

IVFKristina Koedderich and Drew Wasilewski underwent IVF in hopes of having a child, and in 2013 after spending nearly $500,000 for the procedure, they gave birth to a baby girl. But after two years, they started to notice that the daughter's feature did not exactly match the Caucasian features of her parents. She appeared Asian. A DNA test confirmed that Wasilewski was not her biological father, though he was intended to be.

The now-divorced couple claim that there was a severe mistake by the Institute for Reproductive Medicine and Science in Livingston, New Jersey, in which they impregnated Koedderich with the sperm of another man. Koedderich and Wasilewski claim the clinic's negligence caused "the breakdown of the marriage." They are suing the clinic for unspecified damages, and their attorney, David Mazie, said that, "It's been devastating for them."

There is also a question of what exactly happened to Wasilewski's sperm? Does he now have a biological child or children somewhere? Superior Court Judge Keith Lynott ordered the institute to hand over a list of all the men and women that were using or had used the facility around the same time as the couple. They also want to know the identity of the their daughter's biological parent. The girl, now six, has been diagnosed with a blood disorder associated with Southeast Asian heritage.

See Clinic Ordered To Reveal Sperm Donor List After Baby Mix Up, NPR.org, September 11, 2019.

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

September 12, 2019 in Current Events, Estate Planning - Generally, New Cases, Science | Permalink | Comments (0)

Wednesday, September 11, 2019

T. Boone Pickens, Oilman and Renewables Advocate, Dies at 91

Oil tycoon and billionaire T. Boone Pickens passed away Wednesday at the age of 91 at his Dallas home under hospice care, surrounded by his family and friends. "He was successful, and more importantly, he generously shared his success with institutions and communities across Texas and Oklahoma," Former President George W. Bush commented, adding that "Laura and I send our condolences." 

He was born in 1928 in Holdenville, Oklahoma and was raised during the Depression. Though only 5'8," he was a star on the high school basketball team when his family lived in Amarillo, Texas. He lost his scholarship to Texas A&M when he broke his elbow, so he transferred to Oklahoma A&M, now Oklahoma State, where he graduated with a degree in geology.

Known in his younger years as a maverick that would take on oil-industry giants, Pickens later would attain more riches through Wall Street. Pickens also would later endorse alternative fuels, especially wind energy, but he could not duplicate his oil riches. In 2009, he scrapped plans for a huge Texas wind farm after running into difficulty getting transmission lines approved. "It doesn't mean that wind is dead," Pickens said at the time. 

In 2007, Forbes magazine estimated Pickens' net worth at $3 billion. He eventually slid below $1 billion and off the magazine's list of wealthiest Americans. In 2016, the magazine put his worth at $500 million. Pickens made huge donations to his alma mater, Oklahoma State University — the football stadium bears his name, and he gave $100 million for endowed faculty positions. "It is impossible to calculate his full impact on Oklahoma State. His historic gifts to academics and athletics not only transformed the university, they inspired thousands of others to join in the transformation," President Burns Hargis said in a statement.

See T. Boone Pickens, Oilman and Renewables Advocate, Dies at 91, New York Times, September 11, 2019.

September 11, 2019 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Tuesday, September 10, 2019

Article on Freedom and Fairness in Retirement Villages: An Analysis of the Regulatory Framework

FairscalesJulia Marshall-Mead recently published an Article entitled, Freedom and Fairness in Retirement Villages: An Analysis of the Regulatory Framework, Elder Law eJournal (2019). Provided below is an abstract of the Article.

New Zealand’s ageing population has contributed to the rapid expansion of the retirement village sector and will continue to do so in coming decades. It is therefore essential that the regulatory framework governing retirement villages be fit for purpose and that it meet its policy objective of protecting retirement village residents’ rights and interests. The regulatory framework has not been subjected to a comprehensive review since the enactment of the Retirement Villages Act 2003. This paper analyses the degree to which the regulatory framework has achieved its aims. It draws on data from interviews with residents and management from retirement villages to identify ways in which the regulatory framework could be altered to better balance the rights of residents and operators. It proposes amendments to the framework to ensure that residents thoroughly understand their contracts with retirement village operators, and to provide for fairer provisions around the financial terms the contracts may contain. It also recommends the establishment of an independent advisory facility to support residents and intending residents both prior to and after their entry into villages.

September 10, 2019 in Articles, Current Affairs, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Bottle with Texas Man's Ashes Returned to Gulf of Mexico After Washing Up on Florida Beach

BottleA beachgoer near Miramar Beach in Florida came upon an interesting item in the sand. The person took the find - a clear plastic bottle containing four dollar bills, handwritten notes and some ashes - and gave it to Sgt. Paula Pendleton of the Walton County Sheriff's Office. When she opened up the bottle she discovered that the ashes belonged to Brian Mullins, a tow truck driver from Garland, Texas, who died earlier this year at age 39. The notes were from loved ones wishing Brian well on his adventure.

Pendleton, who had lost her husband last year, said she was overcome with emotion as she sat in her squad car reading the carefully written letters, which contained the phone numbers of the man's family. The dollar bills were placed in the bottle by Brian's mother, Darlene Mullins, to pay for the phone calls she hoped people would make to update her family on the bottle's journey. Darlene said that Brian loved fishing but never got the chance to go ocean fishing. The family could not afford to take the bottle to the sea themselves, so they had a relative bound for Florida take it in early August.

The officer knew that this could not be the end of Brian's adventure. Pendleton enlisted an acquaintance who owns a charter boat to ferry the ashes far off the Florida coast. And on Friday, the bottle, the dollar bills and the ashes of Brian were again at sea to continue on his adventure.

See Bottle with Texas Man's Ashes Returned to Gulf of Mexico After Washing Up on Florida Beach, Fox News, September 8, 2019.

September 10, 2019 in Current Events, Estate Planning - Generally, Travel | Permalink | Comments (0)

University of Kentucky College of Law Seeks Assistant Professors

UnikentuckyTHE UNIVERSITY OF KENTUCKY COLLEGE OF LAW invites applications for three, entry-level, tenure-track faculty positions at the rank of Assistant Professor, beginning in the Fall of 2020. The College is seeking to fill needs in almost any area of law. Some key areas include Business Associations, Civil Procedure, Contracts, Family Law, Property, Securities Regulation, and Trusts and Estates. However, we are also interested in considering candidates who teach and/or research in other areas that are not included in this sample list of priorities. The College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and a demonstrated potential for excellence in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.

The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, minorities, veterans, women, and members of other underrepresented groups are encouraged to apply.

To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at http://ukjobs.uky.edu/postings/232729 ,
http://ukjobs.uky.edu/postings/232745 , and http://ukjobs.uky.edu/postings/234775 where they can submit a letter of application and resume. The College seeks three entry-level faculty members, so please apply for all three openings. Please send any questions to Jennifer Bird-Pollan, Chair, Faculty Appointments Committee, by email to jbirdpollan@uky.edu, or by mail at the University of Kentucky College of Law, 620 South Limestone, Lexington, KY 40506-0048.

Special thanks to Adam J. Hirsch (Professor of Law at the University of San Diego School of Law) for bringing this to my attention.

September 10, 2019 in Estate Planning - Generally, Faculty Positions -- Permanent | Permalink | Comments (0)

Monday, September 9, 2019

Estate Planning and Millennials

MillennialsNo matter the debate among other generations, millennials are legal adults. As such, they need all the same documents any other adult would need, including a will, a durable power of attorney and a living will. A Durable Power of Attorney names an agent to act on your behalf with respect to financial and other decisions in the event of incapacitation, which could happen to anyone, no matter their age. Depending on their personal circumstances, they may even need more intensive planning.

If a millennial's only assets are joint owned or already have designated beneficiaries (such as a bank account), there may be no need for a will; of course, always confer with an estate planning attorney. 

As the most digitalized generation that was essentially raised online, a millennial may want extra care with their digital assets. Maybe they want their Facebook page memorialized or a financially successful blog continued or even photos that have no physical medium to be distributed. A consice list of user names and passwords should be compiled along with instructions for the corresponding account, or utilize a reputable service to do so.

Millennials commonly adopt pets before (or even instead of) having children, so putting together a pet trust may be necessary. Without one, a cherished fur baby may end up with a caregiver that does not provide for the pet as the owner would have intended. 

See Rebecca Wrock, Estate Planning and Millennials, Varnumlaw, September 9, 2019.

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

September 9, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Article on How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts

Charity2Albert Feuer recently published an Article entitled, How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article. 

Individuals often fund charitable gifts with their savings or retirement benefits. Such benefits, other than those from a Roth individual retirement account or annuity, are generally included in the individual’s gross income when received. However, individuals may not be able to deduct for federal income-tax purposes any of the charitable contributions they make during the period 2018 to 2025 because the 2017 tax act substantially limited the deductibility of state and local taxes, eliminated miscellaneous itemized deductions, and dramatically increased the applicable standard deductions. On the other hand, distributions from individual retirement accounts or annuities may be eligible for the favorable tax treatment applicable to qualified charitable distributions (QCDs). This article explains the QCD requirements. The article also discusses when it is prudent to use those provisions and when it is prudent to do otherwise if savings or retirement benefits fund charitable contributions, and when it is prudent to use other funding sources, such as appreciated publicly traded securities, for charitable contributions.

September 9, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

How a Nearly Brain Dead 'Miracle Man' Survived After Being Taken Off Life Support

BrainscanT. Scott Marr allegedly suffered a stroke in December of 2018 in his Nebraska home and was rushed to Methodist Hospital where he was placed on life support. The attending doctors did not believe that he would survive and his condition worsened with severe brain swelling. His four children were faced with the difficult decision on whether to take their 61-year-old father off the machines that kept him alive.

After saying good-bye in his hospital room, the children decided to take him off life support and even planned to have the funeral the very next day. But instead of quickly fading away, Marr started to respond and regain functions. Soon he was able to smile and move his hands and toes.

Imaging revealed that Marr did not have a stroke, but actually had posterior reversible encephalopathy syndrome (PRES), with an uncommon symptom being brain swelling. This explains why doctors misdiagnosed the man.

Thankfully, PRES includes a good prognosis and ability to manage, as was the outcome in this case.

See Dr. Manny Alvarez, How a Nearly Brain Dead 'Miracle Man' Survived After Being Taken Off Life Support, Fox News, September 8, 2019.

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

Saturday, September 7, 2019

CLE on Probate Process: Quick Timeline Overview and Checklist

CLEThe National Business Institute is holding a teleconference entitled, Probate Process: Quick Timeline Overview and Checklist, on Thursday, September 12, 2019, at 1:00 pm to 2:30 pm Central. Provided below is a description of the event.

Understand and Follow the Key Steps

Do you have a clear view of probate process from start to finish? This concise guide will quickly take you through all the crucial stages of the process. Experienced faculty will provide essential forms and checklists to ensure no stone is left unturned. Register today!

    • Get a bird's eye view of probate administration.
    • Come away with a master checklist of deadlines, tasks, and necessary forms.
    • Save time on marshalling and inventory of assets with practical tips from faculty.

Who Should Attend

This program is designed for attorneys. Accountants, trust administrators, estate planners, tax professionals, and paralegals may also benefit.

Course Content

    • The Small Estate Qualifications and Timeline
    • The Formal Probate Procedure - What Must be Done and When
    • The First 48 Hours and Initial Notices to Creditors, Beneficiaries and State Agencies
    • Locating the Will and Beneficiaries and Proving the Will
    • Asset Marshalling and Inventory Forms and Tasks
    • Key Tax Deadlines, Forms, and Extensions
    • Executor Duties (Master Checklist and Forms)

September 7, 2019 in Conferences & CLE, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)