Wednesday, October 9, 2019
Scammers 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.
Monday, September 30, 2019
Kristine 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.
In cases of severe weather such as hurricane and tornadoes, people can focus just on the moment. When evacuations are issued, people often leave their homes with a handful of possessions and the clothes on their backs. They may not think to grab their physical estate planning documents. All drama aside, it may be a good idea to back up the paper originals with electronically stored copies in a secure cloud.
However, if you can produce a signed copy of the will, there is usually statutory authority providing a means to prove a copy of a lost or destroyed will.
See Carol Warnick, Safeguarding Estate Planning Documents, Fiduciary Law Blog, September 9, 2019.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Thursday, September 19, 2019
Michael J. Polk recently published an Article entitled, Be Right Back: Black Mirror and the Importance of Digital Estate Planning, South Carolina Lawyer, July 2019. Provided below is the introduction of the Article.
The Netflix series "Black Mirror" imagines the effect technology will have in the near future. In the Be Right Back episode, a young woman's boyfriend suddenly dies. Grieving, the woman signs up for a service that creates a virtual boyfriend by using his past text and email communications, social media accounts and artificial intelligence. The more information fed into the service, the more accurate the interactions with the virtual boyfriend become (spoiler alert: there isn't a happy ending). The episode makes the point that our digital life has become pervasive, and it becomes more so with each passing day. Lawyer must address and plan for digital assets and accounts both on a professional and personal level because, in the words of John Maynard Keynes, "In the long run, we are all dead."
Wednesday, September 18, 2019
Andrew Gilden recently published an Article entitled, The Social Afterlife, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.
Death is not what it used to be. With the rise of social media and advances in digital technology, postmortem decision-making increasingly involves difficult questions about the ongoing social presence of the deceased. Should a Twitter account keep tweeting? Should a YouTube singer keep singing? Should Tinder photos be swiped left for the very last time? The traditional touchstones of effective estate planning — reducing transaction costs and maximizing estate value — do little to guide this new social afterlife. Managing a person’s legacy has shifted away from questions of financial investment and asset management to questions of emotional and cultural stewardship. This Article brings together the diverse areas of law that shape a person’s legacy and develops a new framework for addressing the evolving challenges of legacy stewardship
This Article makes two main contributions. First, it identifies and critically examines the four models of stewardship that currently structure the laws of legacy: (1) the “freedom of disposition” model dominant in the laws of wills and trusts, (2) the “family inheritance” model dominant in copyright law, (3) the “public domain” model dominant in many states’ publicity rights laws, and (4) the “consumer contract” model dominant in over forty states’ new digital assets laws. Second, this Article develops a new stewardship model, which it calls the “decentered decedent.” The decentered decedent model recognizes that individuals occupy heterogenous social contexts, and it channels postmortem decision-making into each of those contexts. Unlike existing stewardship models, this new model does not try to centralize stewardship decisions in any one stakeholder — the family, the public, the market, or even the decedent themselves. Instead, the decentered decedent model distributes stewardship across the diverse, dispersed communities that we all leave behind.
Monday, September 16, 2019
When Holly Becker was in her twenties, she was treated for non-Hodgkin’s lymphoma by undergoing an umbilical-cord-blood transplant. For ethical reasons, donations from infant umbilical-cord blood have been strictly anonymous for almost 30 years. But Becker, using the mail-in DNA test provided by AncestryDNA, discovered that the cells of the donor from two decades are still within her when her results exactly matched those of a young man in New York, and she was able to meet him.
After numerous rounds of chemo that ultimately failed, Becker was near death when her doctor suggested the then-novel procedure of transplanting cord blood from a stranger. Doctors would destroy Becker’s own cancerous cells before infusing her with hematopoietic stem cells - which are plentiful in cord blood - from a healthy matched donor. Those cells would eventually divide to replace all the blood in her, and Becker did not recover entirely from the grueling procedure for two years. But she stayed healthy, and she always wondered whose blood saved her life.
Becker was not trying to find the anonymous donor when she used the DNA kit. She was just curious about her family history. But she matched to her donor's mother, Dania Davey, as if she was indeed was Davey's daughter. They both thought it was mistake by the company. After some research and another patient of Becker's oncologist getting odd results from AncestryDNA, they discovered the truth. The DNA in saliva, it turns out, can come from white blood cells (which should have the donor’s DNA) that guard against bacteria in the mouth. In fact, many mail-in DNA test companies advice against patients that have undergone bone-marrow or cord-blood transplants against taking their tests, as the mix of genetic material can cause them to fail. Or, the test could pinpoint the donor's DNA.
To prove their hypothesis, Davey's 25-year-old son, Patrick, took a test. And he matched the original records for Becker’s anonymous donor, and Dania had in fact donated his cord blood when he was an infant. For more than two decades, Becker had carried Patrick's DNA inside of her.
See Sarah Zhang, A Woman’s AncestryDNA Test Revealed a Medical Secret, The Atlantic, September 13, 2019.
Special thanks to Laura Galvan (Attorney, San Antonio, Texas) for bringing this article to my attention.
Tuesday, September 3, 2019
A couple that has difficulty conceiving may go through the timely and costly process of in vitro fertilization. If they are lucky enough to have healthy embryos after their family is complete, they are faced with a decision: to either destroy the embryos, donate them to science, or donate them to other private individuals. This third choice has been referred to as embryo adoption though it is not legally an adoption. The term adoption in the U.S. applies only to the placement of a child after they are born.
Assistive Reproductive Technology (ART) is on the rise in America. 284,385 ART cycles were attempted in the U.S. in 2017, with 78,052 resulting live births according to the Center for Disease Control. The CDC said the main type of ART reported in the U.S. is IVF, with an estimated 1.7% of all children born in the U.S. each year being conceived through ART.
The Tos of Colorado had their own "normal" in vitro fertilization experience when they used it to conceive their son, Lathan, in June 2013. However, their future baby was the product of the only viable embryo. After a failed round of IVF, they were debating traditional adoption when they saw an advertisement for embryo adoption. The first attempt did not take, but the second time resulted in a healthy pregnancy with an embryo that had been frozen and stored for three years. “I got to experience the bond that comes with nursing and I got to carry Alex inside me for nine months and that was very special,” Michele To said.
The Tos also said they are hopeful about expanding their family again through embryo adoption and would like to choose an embryo genetically related to Alex.
See Alexandria Hein, Baby Born Through Embryo Donation Years After Being Frozen, Stored, Fox News, September 3, 2019.
Sunday, September 1, 2019
120 coffins dating back over 100 years were discovered underneath an apartment complex in Tampa, Florida using ground-penetrating radar. They may have been part of the lost Zion Cemetery, Tampa's first segregation-era burial ground, established in 1901 at the 3700 block of Florida Ave. The burial ground disappeared when the land was sold for white developments, according to the Tampa Bay Times.
The housing complex had hired a private archaeological assessment company, Cardno, after the paper ran a story featuring the lost Zion Cemetery back in June. The images show "rectangular objects that are the size and shape of coffins between 4 and 6 feet in depth," said the principal project investigator, Eric Prendergast. The objects are organized in rows "oriented east-west within boundaries of a former cemetery."
The Housing Authority says that when the apartment complex is redeveloped in the coming years, Zion Cemetery land will be transformed into a memorial park honoring the African-Americans buried there. As of now, though, the graves will remain undisturbed, the agency says.
See David Aaro, Forgotten Cemetery with Over 120 Coffins Found Buried Beneath Tampa Apartment Complex, Fox News, September 1, 2019.
Friday, August 30, 2019
The American Law Institute is holding a webcast entitled, Common Issues Involving Unusual Assets: What Estate Planners Need to Know, on Wednesday, September 25 2019 from 1:00 pm to 2:00 pm Eastern. Provided below is a description of the event.
Why You Should Attend
Sometimes it is a client’s most cherished possessions beyond financial accounts that require extra planning by the estate planner. These types of assets, often referred to as unusual assets, pose a unique set of problems when attempting to draft an estate plan that is suited to the client’s intentions. Issues can arise when these assets are highly regulated, hard to value, or the rules for handling a specific asset varies widely from state to state. What is the best way to deal with these out-of-the-ordinary items?
What You Will Learn
Join us for this 60-minute video webcast that addresses the challenges that surface when advising fiduciaries on the valuation , liquidity, transfer of control, and payment of taxes involved with the planning and administration of unusual assets, including:
- Digital assets
- Children of new biology
Questions submitted during the program will be answered live by the faculty. All registrants will receive a set of downloadable course materials to accompany the program.
Who Should Attend
This accredited continuing legal education program will benefit all estate planning attorneys and professionals.
The two young men that led the Canadian police and military on a manhunt that spanned across three provinces were found dead on August 7 of self-inflicted gun wounds. Kam McLeod, 19, and Bryer Schmegelsky, 18, were wanted for second-degree murder of a British Columbian man, Leonard Dyck, and were also suspects in the killings of American Chynna Deese, 24 and her Australian boyfriend, Lucas Fowler, 23. The Royal Canadian Mountain Police reported that the two men were dead for "a number of days" before their bodies were discovered 2,000 miles away from where the two murders occurred and 5 miles away from the suspects' burnt out truck.
It has also been reported that they left a video message entailing a "last will and testament" on a mobile phone. An unnamed family member who did not personally view the video said the family was shown 30 seconds of a videoin which the two men said goodbye and described their last wishes for their remains.
See Travis Fedschun, Canadian Manhunt Killers Recorded 'Last Will and Testament' on Phone Before Killing Themselves, Fox News, August 20, 2019.