Wills, Trusts & Estates Prof Blog

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

Tuesday, December 3, 2019

Kansas Considers ‘Greener’ New Way to Bury its Dead

TreeA Swedish company called Promessa is focusing on Kansas to present a new form of disposing of human remains to the United States because of the state's relatively lax cremation laws, especially since the state does not require a fire in the cremation process. The procedure, promession, consists of freezing the body with liquid nitrogen and then "vibrating it into particles." Susanne Wiigh-Mäsak, the biologist who founded the company, said in an interview that promession is cost-effective and eco-friendly.

Kansas' attorney general, Derek Schmidt, released an opinion shortly before Thanksgiving that the decision to allow the procedure within the state should be made by the Kansas Board of Mortuary Arts. Last May, Washington became the first state to allow the composting of human bodies in which the body is broken down into soil that the family or loved ones are allowed to keep or spread where ever they choose.

See Edmund DeMarche, Kansas Considers ‘Greener’ New Way to Bury its Dead, Fox News, December 2, 2019.

December 3, 2019 in Current Events, Death Event Planning, Estate Planning - Generally, Science, Technology | Permalink | Comments (0)

Sunday, December 1, 2019

Electronic Wills Are Coming

E-signTechnology seems to be advancing every day, and estate planning strategies have been struggling to keep up. One tool that may be approaching the modern era is the electronic will. An electronic will, or e-will, is one that recognizes the traditional formalities of a will when they are in an electronic format. An e- will can be written in an electronic medium, electronically signed and even electronically validated - no printing necessary for the signature to be done in ink. 

The Uniform Law Commission (ULC), a group of law professors and practitioners who draft prototype state laws, approved the Uniform Electronic Wills Act, also known as the E-Wills Act. Usually, most states adopt a law within a few years after the ULC approves it. Florida is definitely ahead of the game, as the state passed an e-wills law in 2017, but the governor vetoed it for not having enough safeguards against fraud. A new version was enacted in September and will go into effect in Florida in 2020.

An e-will must still be in written form, thus no audio or video recording will suffice. An e-will also will not be recognized or considered valid when the testator is someone defined as vulnerable (such as nursing home residents), because the potential for fraud or undue influence is considered to be too great. Under Florida's law, an e-will be stored by a qualified custodian; therefore, saving it to your smart phone, tablet or computer is not sufficient, and to become a qualified custodian takes a hefty investment in a secure infrastructure. It should be noted, however, that the Uniform E-Wills Act does not contain the qualified custodian requirement.

See Bob Carlson, Electronic Wills Are Coming, Financial Hobby, November 29, 2019.

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

December 1, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Monday, November 18, 2019

Article on Twenty-First Century Wills

Tech2Jennifer L. Fox recently published an Article entitled, Twenty-First Century Wills, Probate & Property Magazine, Vol. 33, No. 6 (Nov/Dec 2019). Provided below is the introduction to the Article.

In the 21st century, electronic wills are coming of age. Companies that sell boilerplate online will are advocating for electronic wills. Some states are reconsidering execution formalities to opt for more technologically-friendly will statutes. Electronic wills promise to be convenient and inexpensive, which means trhat planning may finally become accessible to all. But electronic wills pose challenges regarding authentication, fraud, and exploitation.

The function of will formalities is to ensure authentication. Robert H. Sitkoff & Jesse Dukeminier, Wills, Trusts, and Estates 141 (10th ed. 2017). Under traditional will formalities, every state requires a will to be written, signed by the testator, and attested. The first hurdle in creating any will is properly drafting it, and the second hurdle is properly executing the will. If a will is not properly drafted or executed, then it may be litigated and invalidated. With the demands of a society consumed with instantaneous services provided online, it is the task of the states to develop legislation on electronic wills that safeguards against abuse yet stays up to date with technology.

November 18, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Friday, November 15, 2019

Article on When is an Execution Error Harmless: Electronic Wills Raise New Harmless Error Issues

ElecSusan N. Gary recently published an Article entitled, When is an Execution Error Harmless: Electronic Wills Raise New Harmless Error Issues, Probate & Property Magazine, Vol. 33, No. 6 (Nov/Dec 2019). Provided below is the introduction to the Article:

The focus of the harmless error doctrine is the intent of the decedent when the decedent created a writing the decedent may have intended to be a will. Using the harmless error doctrine, a court can excuse a defect in the execution of formalities if the proponent of a will can establish, by clear and convincing evidence, that the testator intended the writing to be the testator's will. The will formalities serve as proxies for testamentary intent, and the harmless error doctrine replaces strict compliance with the formalities with direct evidence of that intent.

November 15, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | 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)

Wednesday, October 23, 2019

Article on The Virtual Family Office and Personal Financial Planning

FinancialplanningSusan M. Tillery recently published an Article entitled, The Virtual Family Office and Personal Financial Planning, Wealth Strategies Journal, September 3, 2019.

Many consumers, as well as professional advisers, continue to think of personal financial planning as a tool to gather assets under management (AUM) or to sell products; however, CPA personal financial planners have developed a fee-for service model which offers integrated personal financial planning without AUM or product sales. This model embodies the essence of true independence and objectivity, as well as the sought-after fiduciary model; thereby, making it most appealing to the client.

The fee-for service model illuminates the CPAs role as the most trusted adviser. This model also serves as a clear pathway for the establishment of a Virtual Family Office (VFO) for business-owners. This article discusses the fee-for service model, how it opens the door for a firm to offer VFO services and how both service offerings utilize professional collaboration.

The term virtual family office has been loosely used over the past 10 years. On one end of the continuum you have a formal investment management structure enabling the entity to take a deduction for investment fees; this is the subject of the recent Lender case (Lender Management LLC, T.C. Memo. 2017-246). On the other end of the continuum you have a more traditional structure providing tax efficiencies, asset protection and the coordination of professional services to high-net worth (HNW) and ultra-high net worth (UHNW) families. This article addresses the latter structure and focuses on the CPA financial planner providing integrated personal financial planning services within the virtual family office structure. The key aspect of this model is collaboration.

October 23, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Technology, Trusts, Wills | Permalink | Comments (0)

Monday, October 21, 2019

Get Your Digital Accounts Ready in Case of Death

Black bookBefore our inevitable demise, it would be a gift to our loved ones if we packaged all of our social media account passwords, email passwords, and any other digital account information together to make final arrangements and settling our affairs simpler for them. Here’s how to set up a digital “little black book” for easy and secure information sharing with family members and trusted friends.

  • Share your account logins and other secure information with a password manager
    •  A password manager is a software application that securely and conveniently stores all your account logins as well as notes you want to keep safe. These usually cost a small annual fee, but are well worth it.
  • Record and save emergency info
    •  These can include funeral plans, living will wishes, safe or even smart phone combinations or codes, important contacts - including your attorney and/or financial advisor, locations of valuables and critical papers, recurring bill information (so nothing goes into default), and any other financial information that may be needed immediately upon your death.
  • Set up dead-man switches and assign custody for your digital accounts
    •  Some accounts allow you to designate a person that can gain access upon your death or even simply after an extended period of inactivity.
  • Drill practice — teach your loved ones how to survive without you
    •  Do not surprise your family with these wishes! Make sure they accept any designations, download any necessary applications, and remember to update your information on a yearly basis.

See Melanie Pinola, Get Your Digital Accounts Ready in Case of Death, New York Times, October 3, 2019.

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

October 21, 2019 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Technology, Wills | Permalink | Comments (0)

Saturday, October 19, 2019

A Will Without Ink and Paper

E-signOne of the pillars of executing a valid will has been signing a physical document with actual ink by the testator, usually in front of witness unless it was a fully handwritten will or in exigent circumstances. But now the convenience of technology may be lending itself to estate planning by allowing wills to be fully electronic, including the signature.

Nevada and Indiana are ahead of the game by already allowing e-signatures, and Florida and Arizona are set to follow next year. The Uniform Law Commission, a nonprofit organization that proposes laws for states to adopt, drafted the Uniform Electronic Will Act as a potential model for states, and several states seem inclined to do so. Electronic wills are not new, with websites such as LegalZoom and Rocket Lawyer offering will services. But the testator was still required to print the document off to put their signature on it with real, tangible ink, and then stored in a safe place rather than uploading it because that act would invalidate the will. “We actually don’t allow you to re-upload it because a facsimile isn’t a legitimate will,” said Dave Hanley, founder and chief executive of Tomorrow, another company that walks the user through creating a will

The Uniform Law Commission’s proposed e-will bill aims to push states to allow the validity of wills that have been electronically signed and stored in the cloud. Trust & Will, an online start-up, helps people create fully digital wills and trust documents in Nevada and Indiana and is ready to roll out its service as other states pass legislation. But some states may be hesitant and insist in editing the Commission's language to suit their own citizen's desires. As always, it would be prudent to consult with an estate planning professional to see if an electronic will with an e-signature can be accomplished in your jurisdiction.

See Paul Sullivan, A Will Without Ink and Paper, New York Times, October 18, 2019.

Special thanks to Jerome Borison for bringing this article to my attention.

October 19, 2019 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Wednesday, October 9, 2019

Financial Scams Targeting the Elderly Are Rising. Advisors Offer Precautions

ScamsScammers pull in billions of dollars every year by targeting the elderly, as much as $36.5 billion annually, and often the victims are too embarrassed and ashamed to mention it to their families. “One of the reasons parents don’t tell us when they may have fallen victim or come close is that they fear [their children will] pack up their home and they’ll lose their independence,” explains Ron Long, head of Wells Fargo’s Elder Client Initiatives Center of Excellence. 

Adult children should broach the subject of their parents' increased vulnerability and impulsiveness tactfully. Amy Nofziger, director of fraud victim support at AARP, says that children should adopt an attitude of non-judgement and empathy when approaching the conversation. Communication lines should remain open between parents and children so the dialogue can established before they are scammed, and then the adult child can bring up other kinds of security concerns. If the familial water are troubled, bring in a trusted intermediary such as a financial advisor or cleric.

Basic technology can be confusing to those who may have already passed middle age by the time cellphones and email had become commonplace. Offer to make sure their security software is up to date, including firewalls and encryption applications. Remind them not to carry their Social Security card in their wallets.

See Steve Garmhausen, Financial Scams Targeting the Elderly Are Rising. Advisors Offer Precautions, Barron's, October 3, 2019.

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

October 9, 2019 in Current Events, Elder Law, Estate Planning - Generally, Technology | Permalink | Comments (0)

Monday, September 30, 2019

Article on Children of Assisted Reproduction vs. Old Dynasty Trusts: A New Approach

IVFKristine S. Knaplund recently published an Article entitled, Children of Assisted Reproduction vs. Old Dynasty Trusts: A New Approach, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

Today, thousands of children are born each year using assisted reproduction technology (ART), including assisted insemination, in vitro fertilization, and gestational carriers, and the numbers continue to rise. Many of these children are not genetically related to one or both of their parents because donated gametes are used; in cases where a gestational carrier gives birth, the intended parents may adopt the child even if they are the genetic parents. Some of these ART children may find themselves clashing head on with old dynasty trusts that presume that adoptees are excluded from class terms such as “issue,” “descendants” or “grandchildren,” and require all beneficiaries to be related by blood to the settlor. Two recent cases, McGehee v. Edwards, 268 Va. 15 (2004) and Matter of Doe, 7 Misc. 3d 352 (N.Y. 2005) have raised this issue, but we are likely to see many more in the next few years.

Will courts treat ART children just as they have treated adopted children, parsing the difference between “issue,” “lineal descendants,” “heirs of the body,” “heirs,” and other class terms; debating whether the writer’s intent or public policy should prevail; and raising questions about whether a change in the common law presumption may or should be applied retroactively? Or should an entirely different approach be used, one that allows us to avoid extensive litigation, the invasion of privacy that extensive DNA testing would produce, and the inevitable stigmatization of children of same-sex couples who can’t be biologically related to both people raising them? This article examines the language of 74 old wills and trusts, ones that are already up and running and cannot be amended, to see if there is a better way to deal with ART children. Can the trustee use doctrines such as decanting to solve this dilemma? Can courts be persuaded to broaden their approach so that trustees or executors can accurately predict what these terms mean, and not flood the courts with requests for instructions? I will propose solutions that might just do that.

September 30, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Science, Technology, Trusts | Permalink | Comments (0)