Wills, Trusts & Estates Prof Blog

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

Friday, November 29, 2019

The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services

ScalegavelAdam S. Hofri-Winogradow recently published an Article entitled, The Statutory Liberalization of Trust Law Across 152 Jurisdictions: Leaders, Laggards and the Market for Fiduciary Services, Wills, Trusts, & Estates Law eJournal (2019). Provided below is the abstract of the Article.

This article reports the findings of the first systematic overview of the statutory liberalization of trust law worldwide. Using a groundbreaking, manually collected, database of the trust legislation of every jurisdiction which has a trust regime respecting 22 trust law variables, I hand coded each jurisdiction’s treatments of each variable since 1925 for their relative liberality. Aggregating all jurisdictions’ scores regarding all variables, I produced a “trust liberality score” for each jurisdiction/year, expressing the extent to which trust law has been liberalized by each jurisdiction by each year.

Results show the United States to be the global leader in trust law liberality: 17 of the 20 jurisdictions which have the most liberal trust laws are American states. Trust law liberalization in the U.S. is a result of the widespread adoption of the Uniform Trust Code, which includes many highly liberal positions, among the states, as well as of many states having followed an offshore dynamic in adopting highly permissive positions in order to draw users from out of state to resident service providers. The trust laws of many American states are more liberal than those of small offshore island jurisdictions. Even the laws of such relatively conservative American states, on trust matters, as New York and California are quite liberal by global standards. Much of the recent global increase in trust law liberality occurred between 1988-2016.

Multivariate regression analysis of U.S. data shows that the statutory liberalization of trust law has had no effect on several indicia for the success of service provision to trusts as a commercial enterprise. It is especially clear that reforms seen as pandering to trust users’ interests at great social cost, such as self-settled spendthrift trusts and perpetual trusts, all in order to create or sustain demand for professional services in the trust context, have had no impact on any of these indicia. As an exception to the general finding of a null result, some findings with marginal statistical significance may show that law reforms which reduced trustees’ exposure to liability and entrenched their entitlement to remuneration led to a decline in their earnings per trust. Those reforms are also weakly associated with an increase in trust income. It is therefore possible that reforms widely seen as preferring trustees over their clients have resulted in trustees providing a better service at lower cost.

November 29, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel, Trusts | Permalink | Comments (0)

Wednesday, November 20, 2019

Article on The Concept of Inheritance by Right of Representation: A Comparative Analysis of Civil Law in Russia and France

FranceNatalia Rostovtseva recently published an Article entitled, The Concept of Inheritance by Right of Representation: A Comparative Analysis of Civil Law in Russia and France, Wills, Trusts, & Estates Law eJournal (2019). Provided below is an abstract of the Article.

This paper examines one of the most important concepts of intestate succession – inheritance by right of representation. The following analysis is based on civil law in Russia and France.

The paper provides an overview of the meaning and the role of the right of representation, determines those who can inherit by right of representation under the Russian and French civil codes as well as the grounds for succession; examines the limitations on inheritance by right of representation under civil law in both states; identifies the legal nature of the rights of the representing heirs. Specific attention is paid to the issue of representation of the parent who is the commorient of the decedent.

As a result of the comparative study, the author makes proposals on the improvement of the concept of inheritance by right of representation in Russia and France.

November 20, 2019 in Articles, Current Affairs, Estate Administration, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Tuesday, November 19, 2019

Inventor of 'Sourtoe Cocktail' Passes Away at 89, Leaves his Toes to the Bar

SourtoeDick Stevenson, the man behind the infamous drink the "Sourtoe Cocktail," passed away at the age of 89. His will stipulated that all 10 of his toes are to be left to the Dawson City Downtown Hotel's bar in Canada's Yukon Territory. Stevenson's daughter, Dixie, said “It brought him the most fame of anything he’s ever done.”

Stevenson, or Captain Dick, came up with the odd drink in 1973: a shot of whiskey garnished with an amputated, mummified human toe. The idea occurred to him after buying a cabin and finding that the previous owners had left behind a jar containing a preserved toe. The toe garnishment is not to be consumed, or the patron will have to cough up $500. When the toes are not in use on the rim of drinks, they are kept packed in salt behind the bar. So far, the bar has served the cocktail to over $93,000 customers.

A representative for the hotel released a statement, saying "The Downtown Hotel mourns the loss and celebrates the life of Captain Dick Stevenson, the originator of the Sourtoe Cocktail. He certainly was one of the Yukon’s most colourful characters and a tremendous ambassador for Dawson City. His passion, creativity and energy will be missed and we are grateful for the legacy he left behind. The Sourtoe Cocktail continues to make headlines around the world and puts Dawson City on the map. Rest in Peace Captain Dick!"

His ashes will also be on display at the hotel in a toe-shaped urn that he commissioned before his death.

See Michael Bartiromo, Inventor of 'Sourtoe Cocktail' Passes Away at 89, Leaves his Toes to the Bar, Fox News, November 18, 2019.

November 19, 2019 in Current Events, Estate Planning - Generally, Humor, Travel | Permalink | Comments (0)

Saturday, November 16, 2019

Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws

Huda-Nasrallah1Huda Nasrallah, a 40-year-old human rights lawyer in Egypt who is also a Coptic Christian, has faced three judges to tackle the Islamic law of the country that dictates that women only inherit half of what males inherit. She is arguing that she should be entitled to the exact same share of her father's estate as her brothers (all of which are on her side), and she is using Christian doctrine to do so. Two prior judges have ruled against her, citing Islamic law that favor men and using it as their justification in their decisions.

Their father, a former state clerk, passed away in December of last year, leaving a 4-story apartment in a lower income neighborhood of Cairo as well as a bank deposit. The siblings filed a request for inheritance at a local court, and Nasrallah invoked a church-sanctioned Coptic bylaw that calls for equal distribution of inheritance. A final verdict is expected to be handed down later this month.

A 2016 ruling from a Cairo court favored a Coptic woman who also challenged Islamic inheritance laws, but recent cases and the sentiment in the nation does not bode well for the minority believer. Egypt's Al-Azhar, the highest Sunni religious institution in the Muslim world, vehemently dismissed the proposal that called for equal inheritance rights. He claimed that it was contradictory to Islamic law and destabilizing to Muslim societies, fearing that if the state offers equal property rights to Christian women that Muslim women will demand the same.

See Caleb Parke, Egyptian Woman Uses Christian Doctrine to Fight Unequal Islamic Inheritance Laws, Fox News, November 15, 2019.

November 16, 2019 in Current Events, Estate Administration, Estate Planning - Generally, Intestate Succession, New Cases, Travel | Permalink | Comments (0)

Wednesday, November 13, 2019

American-Born Countess Leaves $41M Fortune to Interior Designers, Not Husband's Son

ParkGloria Clary was the second wife of the eighth Earl Bathurst, and after his death became the Dowager Countess Bathurst. She decided to forgo her American citizenship in 2008, allegedly to get out of paying U.S. taxes, and reportedly had a sour relationship with her late husband's son, Lord Allen Bathurst. But recent news still came to a shock to the estate: Dowager Countess Bathurst completely wrote her step-son out of her will, opting instead to give her $41 million fortune to two interior designers. She had passed away in 2018 at the age of 90.

After the Earl "Barmy Bathurst" died in 2011, his son inherited a tony 15,000-acre estate in Gloucestershire called "Cirencester Park," where the Countess and the late Earl had lived. Allen said that there were legal battles recently over whether or not she would have access to the sprawling home for the "use and enjoyment" of the family's collection of heirlooms, which was worth £13 million, or approximately $16.7 million.

"Having married into the family, she was happy to use the family name," the Lord added. "It was just disappointing that she could not follow in the manners, standards and loyalty of the family of the past."

See Stephanie Pagones, American-Born Countess Leaves $41M Fortune to Interior Designers, Not Husband's Son, Fox Business, November 13, 2019.

November 13, 2019 in Current Events, Estate Planning - Generally, Travel, Wills | Permalink | Comments (0)

Wednesday, October 16, 2019

In France, Elder Cares Comes With the Mail

MailFrance has given a new responsibility to their mail carriers: to check on the elderly. Through a program called Veiller Sur Mes Parents ("Watch Over My Parents), subscribers pay €37.90 for a month's worth of weekly visits as well as an emergency call button. The subscribers can be family members of the elderly person and the mail carrier can notify them through an app that their loved one is "well" or if they require assistance with outings or house repairs.

The program was initiated in 2017, a total of 21,000 elderly singles have been enrolled in the program across France. The visits usually last between six and fifteen minutes, and at the end the senior signs the mail carrier's tablet as a sign of life - similar to signing to accept a package.

One of the reasons La Poste has been able to fill this void for the country's aging generation is due to economic changes. The number of letters being mailed has dropped dramatically compared to a year ago, and despite the stamp prices going up, delivering mail is not supportive enough. So the definition of "postal work" has expanded to include picking up prescriptions, delivering flowers, and now providing conversations and social visits to seniors. Last year alone, only 28% of La Poste's revenue came from delivering mail.

See Zoey Poll, In France, Elder Cares Comes With the Mail, The New Yorker, October 9, 2019.

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

October 16, 2019 in Current Affairs, Elder Law, Estate Planning - Generally, Travel | Permalink | Comments (0)

Thursday, September 19, 2019

Britney Fans Insist it is Time to #FreeBritney!

BritneyBritney Spears, the pop princess that dominated the charts in her late teens and early twenties before her extremely public break down in 2008, is still under a conservatorship in California. This year she cancelled her Las Vegas residency and she went to a mental health facility. But her fans believe that she is being silenced and was put into the facility against her own free will, and was able to be forced because of the conservatorship with her father, Jamie, at the helm.

Conservatorships - or guardianships as they may be known in other jurisdictions - are intending to help those who cannot take care of themselves and are unlikely to gain that ability, such as the elderly or mentally disabled. Spears's father is control of her finances and many personal choices (including healthcare), but it is apparent that the musician can provide for herself. She has produced four albums since the start of her conservatorship, was a host on The X Factor, even went on four world tours. Attorney Stanton Stein, whom Jamie has hired for #FreeBritney damage control, rejected the idea that Spears had been coerced or manipulated in any way. “She’s always involved in every career and business decision,” he said. “Period.” There have been no more public outbursts, break downs, or suicide attempts.

So why is there still a conservatorship in place? Her fans believe that she is being micromanaged and manipulated to the point of being under complete control of her father. What really gave the rally cry #FreeBritney fire, however, was a voicemail left on a podcast that dissects Britney's Instagram posts. The caller, identifying himself as a former paralegal for an attorney who worked with Spears’ conservatorship, claimed that the singer’s father was involved in getting her to drop her Las Vegas residency. He also made a series of other allegations and raised concerns about her personal autonomy.

In the meantime, Jamie Spears has requested that the conservatorship be extended to more states, including where his daughter lives to vacation, and his suing individuals with slander over the many accusations.

See Laura Newberry, Britney Spears Hasn’t Fully Controlled Her Life for Years. Fans Insist it’s Time to #FreeBritney, Los Angeles Times, September 18, 2019.

Special thanks to Adam T. Uszynski (Bradicich, Moore & Uszynski, LLP, Victoria, Texas) for bringing this article to my attention

September 19, 2019 in Current Events, Estate Planning - Generally, Guardianship, Music, Television, Travel | Permalink | Comments (0)

Tuesday, September 10, 2019

Bottle with Texas Man's Ashes Returned to Gulf of Mexico After Washing Up on Florida Beach

BottleA beachgoer near Miramar Beach in Florida came upon an interesting item in the sand. The person took the find - a clear plastic bottle containing four dollar bills, handwritten notes and some ashes - and gave it to Sgt. Paula Pendleton of the Walton County Sheriff's Office. When she opened up the bottle she discovered that the ashes belonged to Brian Mullins, a tow truck driver from Garland, Texas, who died earlier this year at age 39. The notes were from loved ones wishing Brian well on his adventure.

Pendleton, who had lost her husband last year, said she was overcome with emotion as she sat in her squad car reading the carefully written letters, which contained the phone numbers of the man's family. The dollar bills were placed in the bottle by Brian's mother, Darlene Mullins, to pay for the phone calls she hoped people would make to update her family on the bottle's journey. Darlene said that Brian loved fishing but never got the chance to go ocean fishing. The family could not afford to take the bottle to the sea themselves, so they had a relative bound for Florida take it in early August.

The officer knew that this could not be the end of Brian's adventure. Pendleton enlisted an acquaintance who owns a charter boat to ferry the ashes far off the Florida coast. And on Friday, the bottle, the dollar bills and the ashes of Brian were again at sea to continue on his adventure.

See Bottle with Texas Man's Ashes Returned to Gulf of Mexico After Washing Up on Florida Beach, Fox News, September 8, 2019.

September 10, 2019 in Current Events, Estate Planning - Generally, Travel | Permalink | Comments (0)

Friday, August 16, 2019

New Zealand Adopts Trust Arbitration in New Trusts Act 2019

NZNew Zealand joins the ranks of other trust-friendly jurisdictions by adopting trust arbitration clauses within their new Trusts Act of 2019. The country recently revised its Arbitration Act of 1996 in May of this year, and followed it up with extending it to trusts.

There are two provisions of the Act that bring about the most positive changes: Section 144 and Section 145. Section 144 deals with unborn or unascertained beneficiaries of a trust that is subject to ADR, and Section 145 allows a court to enforce an arbitration provision in a trust.

See here for more information.

Special thanks to Stacie I. Strong (Manley O. Hudson Professor of Law, University of Missouri) for bringing this article to my attention.

August 16, 2019 in Current Events, Estate Administration, Estate Planning - Generally, New Legislation, Travel, Trusts | Permalink | Comments (0)

Wednesday, August 7, 2019

5 Key Tax Questions for Buying a Vacation Home Abroad

BeachThe allure and prestige of purchasing a vacation home in a foreign land is easy to understand. But there are several tax questions that must be asked to determine if the purchase is a prudent one.

  • Will buying a vacation home in a foreign country impact my U.S. income taxes?
    •  As long as a vacation home is purchased in an individual capacity and is not used to produce rental income, it should not trigger U.S. income tax.
  • Is the mortgage interest on my foreign vacation home deductible?
    • Yes, interest on up to $750,000 of principal is deductible as long as the debt was used to “acquire, construct or substantially improve” a primary residence or one secondary home. After 2025, the principal amount jumps up to $1 million.
  • If I incur foreign real estate taxes, are they deductible?
    • As of right now no, but starting 2026, the itemized deduction for foreign real estate taxes is scheduled to return.
  • I have a U.S. will and testament. Will it sufficiently address the eventual transfer of my foreign home to family or friends?
    • Different countries can have very different estate planning laws, so it is best to work with a tax attorney and an advisor to possibly create a foreign estate plan.
  • Do I risk exposure to double taxation from a wealth transfer perspective?
    • The U.S. estate and gift tax calculation includes the value of all your assets, including real estate abroad. If those foreign countries also impose a gift or estate tax, there may very well be double taxation.

See 5 Key Tax Questions for Buying a Vacation Home Abroad, Northern Trust, June 13, 2019.

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

August 7, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Travel, Trusts, Wills | Permalink | Comments (0)