Wills, Trusts & Estates Prof Blog

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

Wednesday, January 22, 2020

Why Millennials are the “Death Positive” Generation

HeadstoneThe majority of Americans have not planned for their ultimate end, and especially do not usually do so in their 20's. The journal Health Affairs found that in 2017 only one in three US adults have an advance directive, including a living will with end-of-life medical instructions, power of attorney naming a person responsible for last affairs, or both. The National Funeral Directors Association states that only 21% of Americans have spoken to their family or loved ones about their wishes.

Journalist Jessica Mitford wrote a book about the funeral industry in 1963, finding that consumers only interacted with the funeral industry on average every 14 years, and then only under duress. There was a veil over the business and people were not aware of the choices available until it was left up to their loved ones after they passed. Now social media, digital applications and websites started by a younger generation are changing how Americans as a whole view death.

From WeCroak, an app that spurs you to live in the moment by reminding you 5 times a day that you will perish, to Deadhappy, a pay-as-you-go life insurance company, the death industry is evolving and modernizing. Sites like Funeralocity provide comparative pricing for funeral home services by zip code so people do not have to physically enter nor call the businesses to get quotes. Patrick Schmitt, the co-founder of FreeWill, says that the number of people age 18 to 24 crafting wills is low, but shoots up among 25- to 44-year-olds.

Phil Olson, a technology ethicist at Virginia Tech specializing in death studies, says that “Millennials want their uniqueness or their quirkiness to come out in their final act." But there may be a darker, more finalistic point of view to it - “It’s a way of exercising control over death,” he says. “It’s a way of coming to grips with your own mortality — to think about it and plan for it and try to make it your own.” 

See Eleanor Cummins, Why Millennials are the “Death Positive” Generation, Vox, January 22, 2019.

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

January 22, 2020 in Current Affairs, Death Event Planning, Estate Planning - Generally, Science, Technology, Wills | Permalink | Comments (0)

Thursday, December 26, 2019

His Body Was a Key. What is Yours?

BitcoinWhen Duke William X died in 1137, his teenage daughter Eleanor became the duchess of Aquitaine, Gascony and Poitou, spanning roughly half of the land mass of modern day France. Whoever married her would gain those lands, and in that day suitors were not above kidnapping a bride. So Eleanor was kept locked in a castle until the right husband came along, since she was essentially the key to owning those lands.

When Gerry Cotton passed away this past January, no one could have guessed that his body (or more accurately, what he held in his mind) was the key to $137,000,000, or $250,000,000 according to some reports. He was the founder of Canada’s largest bitcoin exchange, QuadrigaCX, and it has come to light that he was the only person that knew of the password to unlock a PC to access the funds. Cotton died at only 30 in India of Crohn's disease. Rumors that he may have faked his death have lead to investors demanding that the body be exhumed for DNA testing.

This dreadful situation can be used as an example on why everyone should maintain a digital estate plan. Many bank accounts can be accessed easier and quicker digitally, and there are other digital assets to consider. Leaving a list of passwords with an estate attorney or professional representative may make things go smoother after your death.

See Theodore F. Claypoole, His Body Was a Key. What is Yours?, National Law Review, December 26, 2019.

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

December 26, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Technology | Permalink | Comments (1)

Wednesday, December 18, 2019

Canada: No Life After Death: Woman Loses Battle to Use Deceased Husband's Sperm

IVF2A man and a woman were excited to become parents, and expressed their joy to their friends and families, exclaiming that they cannot wait until they give their daughter a sibling or two. Sadly, the man died unexpectedly. The next day, the new widow contacted a fertility clinic to inquire into retrieving her husband’s sperm for future reproductive use and was told that a retrieval of this kind should occur within 36 hours of death and that a court order was required. The court authorized the retrieval, but said that nothing else could occur until further order of the court. After a hearing, the court ruled that the widow could not use her deceased husband's reproductive material because he did not give his consent before his death.

The man died without a will and also without any other type of planning documents. Section 8(2) of the Assisted Human Reproduction Act (AHRA) provides: No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose.

The widow argued that the court should adopt a broader definition of "consent" based on common law principles. The court rejected that argument, though, where there is clear and unequivocal legislative language before it. The Regulations within the AHRA required the consent to be informed, such that the donor knew that (a) their reproductive material would be posthumously removed and (b) that their reproductive material would be removed specifically for the posthumous reproductive use of their spouse or common-law partner.

See Malkit Atwal, Canada: No Life After Death: Woman Loses Battle to Use Deceased Husband's Sperm, Mondaq, December 17, 2019.

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

December 18, 2019 in Current Events, Estate Planning - Generally, New Cases, Science, Technology | Permalink | Comments (0)

Monday, December 16, 2019

When Criminal Law Meets Trusts And Estates: Forging A Last Will And Testament

ForgeryAs opposed to what one may see on the silver screen, dramatic and emotional will readings with the decedent's loved ones all clothed in somber attire are quite rare. In truth, any drama that ensues from being surprised by any bequests in a will are played out in the courts and are hashed out by attorneys. A last will can be contested on the basis of undue influence, testator's lack of testamentary capacity, due execution, fraud or mistake. A type of fraud that crosses into the domain of criminal law is that of forgery - where the decedent was not the actual testator.

Donna Herring was recently sentenced to 41 months in Arkansas for forging the last will of her daughter's ex-boyfriend, Matthew Jacobs. Jacobs' estate was worth approximately $1.7 million, mostly due to receiving a portion of a settlement from an oil rig explosion. He died in a car accident in 2015 and his son and brother could not find a will. Five days after his death, Herring used an online program to write and sign a will in his name, and then claimed she had found it in the decedent's gun safe. The online component added to the cyber-related federal charges. Her daughter, son-in-law, and sister-in-law were also convicted in the scheme.

See Cori A. Robinson, When Criminal Law Meets Trusts And Estates: Forging A Last Will And Testament, Above the Law, December 10, 2019.

Special thanks to Carissa Peterson (Hrbacek Law Firm, Sugar Land, Texas) for bringing this article to my attention.

December 16, 2019 in Current Events, Estate Planning - Generally, New Cases, Technology, Wills | Permalink | Comments (0)

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)