Wills, Trusts & Estates Prof Blog

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

Thursday, August 6, 2020

Losing loved ones during the pandemic: The legal rights of Muslim heirs

PandemicSince the Coronavirus health crisis hit our country, deaths continue accumulate daily. The global pandemic is causing us to lose friends and family. Due to a significant increase in death rates resulting from COVID-19, more people are in need of help due to inheritance related problems. 

It is common for the deceased to leave behind their estate and/or assets they possessed during their lifetime. The estate "comprises of all property that the deceased had owned, whether movable and/or immovable."

When Muslims die, there are four duties that need to be performed with such assets they possessed. 

They are:

  1. Paying funeral and burial expenses
  2. Paying the debts of the deceased (if any)
  3. Determining the will of the deceased, if any (which can only be up to one third of the estate)
  4. Distributing the remainder of the estate and property amongst the relatives or heirs of the deceased

Shariah law governs the legal distribution of property in Bangladesh. 

According to Sayeda Silma Tamanina, it is necessary to determine the relatives of the deceased who are entitled to inherit the estate or property along with the proportion of the shares to be inherited by them individually and collectively."

The amount of heirs can be very broad and sometimes distance family members are entitled to succeed in the absence of primary heirs. Also, a son inherits double the share of a daughter in these circumstances. 

Inheritance is considered an "integral part" of Shariah Law giving heirs and descendants a right to claim the estate and property of their deceased family members. 

However, the heirs must take the proper legal steps to ensure the legal transfer of the properties. These steps include:

  1. Make an inventory of all assets
  2. Collect the Warisham Certificate or Legal Heir Certificate 
  3. Collect the Succession Certificate
  4. Mutation of Lands 

After completion of these steps, the inheritors can successfully transfer the properties in their individual names.

See Sayeda Silma Tamanina, Losing loved ones during the pandemic: The legal rights of Muslim heirs, The Daily Star, July 29, 2020. 

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

August 6, 2020 in Current Events, Death Event Planning, Estate Administration, Estate Planning - Generally, Religion, Trusts, Wills | Permalink | Comments (0)

Wednesday, February 12, 2020

Book on Estate Planning for the Muslim Client

MuslimbookYaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client (2019). Provided below is a summary of the book.

Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.

Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.

Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:

    • Meeting the Muslim client and understanding the pillars of their faith
    • Ethical, legal, and public policy issues
    • Estate planning during life
    • Planning for incapacity and death
    • Disposition of property at death
    • Drafting estate planning documents, with sample forms
    • Planning for individuals and assets abroad, and more

February 12, 2020 in Books, Books - For Practitioners, Disability Planning - Property Management, Estate Planning - Generally, Religion, Wills | Permalink | Comments (0)

Thursday, June 27, 2019

Article on Hope Springs Eternal: Reforming Inheritance Law in Islamic Societies

IslamAhmed Souaiaia recently published an Article entitled, Hope Springs Eternal: Reforming Inheritance Law in Islamic Societies, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Soon after Lajnat al-Hurriyāt al-Fardiyya wa-l-Musāwāt (“Committee on Individual Rights and Equality”) submitted its report in June 2018 to the president of Tunisia, Beji Caid Essebsi, the latter ordered the legislature to amend the 1956 family law to achieve equality between men and women in inheritance and property rights. Although the authors of the report had written forcefully about how Islamic texts (the Qurʾan and sunna) are compatible with modern law, some of their recommendations suggested a broad inclination to reform the law outside religious tradition and as part of the exigencies of the civil state. These events and ideas brought to the fore questions such as whether classical Islamic law is reformable or obsolete. This paper aims to show that interpretations of Islamic texts that result in radically different inheritance laws have existed since at least the third Islamic century. Inequality has persisted always for political and institutional reasons, not substantive ones.

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

Saturday, May 11, 2019

Article on The Case for Trusts as an Alternative for Prenuptial Agreements When Religion Intervenes

Trusts2Michael A. Sneeringer recently published an Article entitled, The Case for Trusts as an Alternative for Prenuptial Agreements When Religion Intervenes, Probate & Property Magazine, Vol. 33 No. 3, May/June 2019. Provided below is the introduction to the Article.

A funny thing happens on the road to marital bliss. I love you becomes "I love you, but...do you mind signing this...this protects both of us...my parents think it would be a good idea...," etc.

For estate planning attorneys with a client who is single and contemplating marriage, one set of facts causes concern. Clients with religions leanings want to protect their valuable businesses and property interests but also be married in accordance with their particular religion. Entering into a prenuptial agreement may not be allowed as a precursor to marriage and could jeopardize the client's ability to be married in the eyes of his religion. If the client is religious, is there another alternative to prenuptial agreement that would suffice? Is this alternative available in every state?

For estate planning attorneys and their married clients, a typical question at the beginning of the process is whether, upon the surviving spouse's death, assets should remain in trust for the clients' children or be distributed outright and free of trust. The estate planning attorney will often caution the client about leaving assets outright. The estate planning attorney's chief concern is that assets left outright to child or grandchild beneficiaries become susceptible to creditor's claims, including spousal creditors. Sometimes the conversation ends here: clients want their children's inheritance to be left in trust - no further discussion. In other cases, clients circle back to their unmarried child or child with  the weakest marriage. ("Her husband's lazy." "All my son's wife does is spend his money.") The client wants the estate planning attorney to draft protective provisions for such child within the client's revocable trusts. Some estate planning attorneys take the client's cue and suggest provisions be placed in a trust to specify that trust distributions are made to a married child or grandchild only if he has entered a prenuptial agreement (or, if the child or grandchild is already married at the time the estate planning document is signed, a postnuptial agreement). Such advise is well-intentioned and might work. But what if the client is religious? Might his religion prevent the use of a prenuptial agreement? If a prenuptial agreement arrangement cannot be made to protect the child or grandchild beneficiary's interest, what is the client to do?

May 11, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Religion, Trusts, Wills | Permalink | Comments (0)

Saturday, April 13, 2019

New Jersey Becomes 7th State to Permit Assisted Suicide

NjNew Jersey's Democratic governor Phil Murphy signed the Medical Aid in Dying for the Terminally Ill Act on Friday, a law that will allow terminally ill patients to end their life using physician assisted suicide. The law will go into effect the first of August, making New Jersey the 7th state to allow terminally ill patients to humanely choose their own end.

The law will allow patients to obtain and self-administer medication to end their lives, though their attending and consulting physicians must first determine that the patient has a life expectancy of six months or less, has the capacity to make health care decisions and is acting voluntarily.

Though the governor is a lifelong Catholic and stated that he wrestled with the choice of whether to sign it or not, he decided that signing was "the right thing to do." Lawmakers have tried since at least 2012 to advance the legislation. “By signing this bill today, we are providing terminally ill patients and their families with the humanity, dignity, and respect that they so richly deserve at the most difficult times any of us will face.”

See Tal Axelrod, New Jersey Becomes 7th State to Permit Assisted Suicide, The Hill, April 12, 2019; see also Mike Catalini, New Jersey Law Allows Terminally Ill to get Life-Ending Meds, Fox News, April 12, 2019.

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

April 13, 2019 in Current Events, Estate Planning - Generally, New Legislation, Religion | Permalink | Comments (0)

Tuesday, March 26, 2019

CLE on Unexpected Troubles When a Client Dies: Resolving Issues and Conflicts at the Time of Death

CLEThe New York Bar is holding conference entitled, Unexpected Troubles When a Client Dies: Resolving Issues and Conflicts at the Time of Death, on Monday, April 8, 2019 from 6:00 p.m. to 8:30 p.m. at the New York City Bar in New York City, New York. Provided below is a description of the event.

Trust & estates attorneys, elder law attorneys, and others who counsel older or disabled clients need to be familiar with unexpected problems that can happen when a client dies and family conflicts arise about funeral and other decisions they must make. What must you do and what can you do to enable your clients, their family and friends, to make the best decisions when they don’t all agree? This non-denominational panel discussion will address key legal, ethical, and practical questions, such as:

  • Who has decision making authority
  • What is the role of the funeral director
  • Deaths at home and what needs to be done
  • Formalities of making decisions and challenging them
  • Decisions concerning autopsy
  • Issues that may result from varying religious beliefs
  • Mechanisms to avoid or resolve disputes
  • Legal documents which could be helpful

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

March 26, 2019 in Conferences & CLE, Death Event Planning, Elder Law, Estate Planning - Generally, Religion | Permalink | Comments (0)

Thursday, March 14, 2019

A Dying Man, a Typo and the Bitter Dispute Pitting 2 Nashville Religious Institutions Against 3 Children

Error4 non-profits, two of which are Nashville institutions, are fighting against three young children, claiming that they are the righting beneficiaries to land that has belonged in the family for more than 200 years. The acres were deeded to a Blackburn ancestor by President Andrew Jackson, prior to the War of 1812. But the lack of two words in a will of a Blackburn that passed away in 2014 has caused the organizations to believe that they deserve hundreds of acres now worth millions of dollars.

When Barry Blackburn, Sr., died at the age of 48 in 2014, his will left all of the land to his son Christopher in a lifetime trust, and then would pass to Christopher's children. If his son predeceased him, the land would go to his sister's three young children, aged 3, 8, and 13. If there were no surviving beneficiaries, the land would be divided equally among the Nashville Christian School, Harpeth Presbyterian Church (which was founded by Gideon Blackburn in 1811), the University of Mississippi law school and Boykin Spaniel Rescue. Christopher died a year after his father without begetting any children.

A Mississippi judged determined that the missing words, "or dies," amounted to a scrivener's error, and that the testator's intent had been to leave the land in the family. Evidence from Blackburn's assistants were introduced, including notes of conversations among them that showed his intent was for the charities to receive the land as a "last resort." The assistants claimed responsibility for the clerical error.

See Anita Wadhwani, A Dying Man, a Typo and the Bitter Dispute Pitting 2 Nashville Religious Institutions Against 3 Children, Tennessean, March 14, 2019.

Special thanks to Turney Berry (Wyatt, Tarrant, & Combs, LLP, Louisville, Kentucky) for bringing this article to my attention.

March 14, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Cases, Religion, Trusts, Wills | Permalink | Comments (1)

Wednesday, March 13, 2019

This Japanese Way of Healthy Eating Might Help You Live to 100

MisoOkinawa, Japan may just have the fountain of youth. People living in Okinawa have especially low rates of obesity and chronic diseases, such as heart disease, diabetes, and cancer, and no place on Earth has a more of a concentration of people 100 or older. The secret? Experts believe it is the local diet.

Luiza Petre, MD, a weight management specialist and assistant clinical professor of cardiology at The Mount Sinai School of Medicine in New York, says that though there are many variables that can contribute to a longer lifespan, "the key is their particularly healthy diet."

The traditional Okinawa diet emphasizes eating plenty of vegetables and seafood and limiting processed foods, and the residents also eat moderate portions at mealtime and treat food as a source of medicine. Okinawans focus on high-fiber carbohydrates such as sweet potatoes, root vegetables, and buckwheat soba, but also include green vegetables, soyfoods, seafood and seaweed, limited amounts of red meat, Shiitake mushrooms, bitter melon, and Jasmine tea. Also, Okinawans tend to enjoy sugary treats only on special occasions, and the majority of their fats come from omega-3 rich fish.

Many Okinawans eat in accordance with a Confucian teaching called hara hachi bu-eating until one is satisfied, not full. They do not weigh or measure their portions, but focus on thoughtfulness. The foods they eat are rich in anti-inflammatory phytochemicals that may help lower the risk for many chronic diseases and even dementia. 

See Marygrace Taylor, This Japanese Way of Healthy Eating Might Help You Live to 100, MSN, March 4, 2019.

March 13, 2019 in Current Affairs, Elder Law, Estate Planning - Generally, Religion, Travel | Permalink | Comments (0)

Friday, March 8, 2019

Book on Estate Planning for the Muslim Client

MuslimbookYaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client, (1st ed. 2019). Provided below is a summary of the book.

Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.

Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.

Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:

    • Meeting the Muslim client and understanding the pillars of their faith
    • Ethical, legal, and public policy issues
    • Estate planning during life
    • Planning for incapacity and death
    • Disposition of property at death
    • Drafting estate planning documents, with sample forms
    • Planning for individuals and assets abroad, and more

March 8, 2019 in Books, Books - For Practitioners, Estate Administration, Estate Planning - Generally, Religion | Permalink | Comments (0)

Monday, March 4, 2019

Note on Do You Tru$t Your Children: A Parent's Final Dilemma

CornellJ. Sam Rodgers recently publish a Note entitled, Do You Tru$t Your Children: A Parent's Final Dilemma, 28 Cornell J.L. & Pub. Pol'y 93-125 (2018). Provided below is an abstract of the Note.

If you knew you would inherit millions of dollars as long as you married someone Jewish, would you scour the Synagogue next Friday night?

This was the situation Daniel Shapira faced. Daniel was a twenty-one-year-old undergraduate at Youngstown State University when his father, Mr. Shapira, died. Mr. Shapira conditioned a portion of his large fortune to Daniel: the document read either be “married at the time of my death to a Jewish girl whose both parents were Jewish . . .” or the inheritance will go to “the State of Israel.” In the United States, unlike in other countries, a decedent has almost full control over the distribution of his assets upon death. Mr. Shapira used his power to incentivize his son to adhere to family values and marry within the Jewish faith.

Many parents view the distribution of their assets at death as the final impact they have on their children. Historically, most parents took this opportunity to provide future financial security for their heirs. Today, parents are confronting a recently developed fear of their children inheriting too much. This fear leads to a controlling dynamic between parents’ fortunes and their children’s lives. Scholars relate the situation to the “carrot and the stick” analogy, by which parents incentivize their children—many times adult children—to make wise choices by dangling a “carrot” in front of their children, then string them along like a masterful puppeteer.

Courtesy of American inheritance law, children can be disinherited by their parents. The harsh consequences of complete disinheritance have led to the development of conditional bequests—parents will give inheritances to their children so long as their children behave properly. The most prevalent form of a conditioned inheritance is the “incentive trust.” An incentive trust allows parents to condition distributions of trust property. These conditions are “as unlimited as our imagination,” so long as they do not contradict public policy or call for beneficiaries to break the law. Theoretically, this solves a “parent’s final dilemma”—whether to pass wealth on to children and possibly stunt motivation and character, or leave children less inheritance, but instead, helpful principles and inspiration. Incentive trusts allow parents to do both by separating the benefits of bequeathing property to children from the risks of bequeathing too much property. This is done by passing fortunes only after children align their lives with criteria enumerated in the trust.

However, incentive trusts are not a perfect solution and should be used with caution in estate planning. Incentive trust shortcomings are fourfold. First, incentive trusts are inflexible, making them difficult to draft and leaving them exposed to litigation. Second, the law confers a public policy limitation that produces inconsistent enforcement of incentive trusts. Third, incentive trusts promote idolizing money, thus potentially diluting the initial incentivized behavior. Fourth, rewarding children with money often has a negative impact on their motivation.

Part I of this Note discusses both the development of the law regarding inheritance and the growing attraction to incentive trusts. Part II details the four traps of incentive trusts—inflexibility, public policy limitations, unintended consequences, decreased motivation—and opens the door for a new solution to a parent’s final dilemma. Part III examines four principles for crafting a better solution to the parent’s final dilemma by looking at those who have successfully inspired children without incentive trusts. Part IV proposes the new solution, termed a Hidden Bonus Trust, that avoids the identified traps of incentive trusts and incorporates the lessons from experts.

March 4, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Religion, Trusts, Wills | Permalink | Comments (0)