Wills, Trusts & Estates Prof Blog

GLOBAL HUNT FOR LOOTED TREASURES LEADS TO OFFSHORE TRUSTS

Genial Englishman Douglas Latchford has been known for his love for ancient sculptures. Latchford even risked land mines to explore Khmer Empire cities in remote Cambodia. Since the 1970s, Latchford has built on of the world's largest private collections of Khmer treasures. 

Latchford's collection is mostly made up of Hindu and Buddhist sculpture. Latchford co-wrote three books on the subject, one which is called "Adoration and Glory," in which he wrote: 

The sculpture and architecture created by the Khmer to honor their gods and their rulers are among the major artistic masterpieces of the world. . ."

Although Latchford openly expressed his love for Khmer achievements, "he was also trafficking in and profiting from antiquities pillaged from that civilization's sacred temples, according to U.S. prosecutors. . ." According to U.S. prosecutors, the decades-long ransacking of Cambodian sites ranks as "one of the most devastating cultural thefts of the 20th century." 

Latchford was indicted in 2019, and the United States thought that hundreds of stolen items would be identified and returned. However, Latchford died before trial, leaving many questions unanswered—particularly what happened to all the money and looted treasures. 

Previosuly undisclosed records do shed some light to these questions as they describe secret offshore companies and trusts that Latchford and his family controlled. 

According to the ICIJ, three months after U.S. investigators began linking Latchford to looted artifacts, "he and his family members set up the first of two trusts named after Hindu gods Skanda and Siva. . ."

The Skanda Trust held Latchford's antiquities collection worth millions of dollars. Latchford's assets were eventually transferred from the Skanda Trust to the Siva Trust. 

Latchford's family assert that the trusts were formed for estate planning and tax purposes, but Cambodian officials continue to fight for the Khmer relics that were looted from them. 

As U.S. investigators continue to pursue the return of the looted items, an international hunt for the antiquities has commenced an examination of the global trade in art and has uncovered museums holding antiquities linked to Latchford. 

For more information See Peter Whoriskey, Malia Politzer, Delphine Reuter, & Spencer Woodman GLOBAL HUNT FOR LOOTED TREASURES LEADS TO OFFSHORE TRUSTS, Washington Post, October 5, 2021. 

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

How Should an Atheist Think About Death

For many, if not most, religious or spiritual views and beliefs will dictate your thoughts and perceptions of death and the afterlife. The philosopher Todd May is an atheist who does not believe in the supernatural. 

Todd May wrote a book called "Death" in which he states that he does not believe in an afterlife. In an interview with George Yancy in which they discussed May's book and confronting death, May stated that there are different types of atheism but they all share the denial of a supernatural deity. 

May explained that although he personally does not believe in a supernatural deity, he does not think less of anyone if they believe that a supernatural deity exists. He explains that atheism is a set of views about the supernatural and not a view about people who believe in the supernatural. 

May explains that we live under the shadow of death as the threat of death is constant; however, without mortality we would be "shapeless." Life would almost be meaningless if we lived on forever. 

May explains that we should engage in forward-looking projects and engagements and try to live as best as we can within the moments of those engagements. 

See George Yancy, How Should an Atheist Think About Death, N.Y. Times, October 20, 2020.

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

Article on Distribution of Inheritance under Islamic Law: An Appraisal of Online Inheritance Calculators

Shahbaz Ahmad Cheema recently published an article entitled, Distribution of Inheritance under Islamic Law: An Appraisal of Online Inheritance Calculators, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. 

With the proliferation of the internet, new modes of access and dissemination have been invented. This paradigmatic shift is not only providing a stimulus for science and technology, but traditional fields of knowledge, such as religious studies and allied disciplines, are also among its beneficiaries. Once it was an uphill task to find a scholar well versed in Islamic inheritance law and ask for advice on the distribution of a deceased’s estate. Various online inheritance calculators have made it convenient, and to some extent, eliminated the inevitability of the consultation with scholars of inheritance. In this background, the paper analyzes some accessible online inheritance calculators and explores their strengths and weaknesses. For evaluative purposes, two benchmarks are devised: one is ‘accuracy score’ and another ‘efficiency grade’. The outcome of the assessment is mixed. Despite the accessibility of online calculators, one should not repose outright confidence without being aware of their merits and demerits. Some calculators have evolved a smooth and efficient system to solve a large number of propositions of inheritance, while others lack proficiency and accuracy.

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

Since 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.

Book on Estate Planning for the Muslim Client

Yaser 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

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

Ahmed 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.

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

Michael 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?

New Jersey Becomes 7th State to Permit Assisted Suicide

New 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.

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

The 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.

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

4 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.