Wills, Trusts & Estates Prof Blog

Why Americans are traveling to Vermont and Oregon to die

There is a growing trend of Americans traveling to Vermont and Oregon to access medical aid in dying, especially after these states removed their residency requirements in 2023. Francine Milano, a 61-year-old from Pennsylvania with terminal ovarian cancer, is highlighted as an example of someone who made multiple trips to Vermont to secure the right to end her life on her own terms. These trips are challenging, involving complex logistics and emotional strain, as patients must meet strict legal requirements, including being physically present in the state for medical assessments and drug administration.

In 2023, at least 26 out-of-state patients died using Vermont's medical aid-in-dying law, and 23 in Oregon. Despite the growing demand, the process remains burdensome, with patients needing to navigate unfamiliar healthcare systems, travel while gravely ill, and find places to stay during the waiting period before they can receive the medication. Advocates argue that these restrictions place an undue burden on already suffering individuals, while opponents, including some religious groups and medical professionals, view assisted dying as immoral or contrary to the role of healthcare.

The article notes that while several states have considered similar legislation, only Delaware passed such a law in the 2023-24 legislative session. The topic remains a contentious issue, with no federal resolution in sight, leaving it to be addressed state by state.

For more information see Debby Waldman "Why Americans are traveling to Vermont and Oregon to die" CBS.com, August 20, 2024.

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

Article: Cross-Border Attestation and Interjurisdictional Wills

Richard F. Storrow recently published an article entitled, Cross-Border Attestation and Interjurisdictional Wills, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

After nearly two years of difficult effort to contain the coronavirus outbreak, remoteness is firmly embedded in the American psyche. Throughout the country, emergency orders permitting will execution and attestation to be conducted by simultaneous audio-visual transmission have allowed estate planning to proceed. There are currently bills in some state legislatures to make permanent the temporary emergency measures adopted during the pandemic. Remote execution and attestation may be here to stay, even in a world where electronic wills remain rare. This article addresses what is likely to become a more familiar manner of will execution in a post-pandemic world and will test the admissibility of interjurisdictional wills to probate against existing rules of probate jurisdiction, choice-of-law norms, case law, and the new directions in will execution forged during the coronavirus pandemic.

As Second Homes Get Far More Use, the Question Is: Where Do You Live?

Of course, owning one home comes with its challenges. But the challenges may mount even higher when owners split their time equally between two or more properties. In these cases, owners face tax, legal, financial, and personal challenges. 

The Rounds family have recently faced these challenges since they have began to spend an extensive amount of time at their second home in the Teton Vally region on the Wyoming/Idaho border. 

Mr. Rounds and his wife closed on a $2.5 million house in Idaho, and although the family planned on splitting their time equally between their home on the East Coast and the new home, they have already spent six months in the new home. 

The family has had to figure out how to "ship cars halfway across the country, find a second pediatrician for their 11-mont-old-daughter, and get their three Maltese dogs back and forth between the two homes." These challenges are not typically encountered by people who only spend weekends and the occasional vacation week at a second home. 

This "co-primary home" lifestyle has been the norm for the ultra-rich. But due to the pandemic, working remotely has become more of the norm and has made the co-primary home lifestyle a more realistic lifestyle choice for second-home owners who are less wealthy.

For those thinking about the lifestyle, it is important to consider the tax, financial, legal, and personal challenges that may come along with it.

See E.B. Solomont, As Second Homes Get Far More Use, the Question Is: Where Do You Live? , The Wall Street Journal, October 14, 2021.

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

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.

Nicolas Cage blew $150 million on a dinosaur skull, pygmy heads and 2 European castles

At one point, Nicolas Cage was worth around $150 million, but the wealth ran out quickly after he began purchasing expensive items. The string of outlandish purchases lead to foreclosure on several properties. 

Cage once owned 15 homes across the world, including one in the Bahamas. Other purchases included a nine-foot-tall burial tomb, an octopus, shrunken pygmy heads, a $150,000 Superman comic and 70-million-year-old dinosaur skull. 

What really hurt Cage financially was his "overstuffed real estate portfolio." Cage indulged himself in reading and studying philosophy, which moved him to seek out the places he had been learning about, eventually leading him to buy properties that matched the new found ideals. 

Cage refers to this period as the "holy grail quest" that "put [him] on a search around different areas, mostly in England, but also some places in the States." During this period, Cage purchased two European Castles that were $10 million and $2.3 million and a $15.7 million countryside estate in Rhode Island. 

On his search for the "holy grail" Cage came to this conclusion: "What is the grail but Earth itself." 

See Emmie Martin, Nicolas Cage blew $150 million on a dinosaur skull, pygmy heads and 2 European castles, CNBC News, November 24, 2020. 

Special thanks to David S. Luber (Florida Probate Attorney) for bringing this article to my attention.

Eddie Van Halen was cremated, ashes went to son Wolf, who will scatter them in the Pacific Ocean: report

Eddie Van Halen was reportedly cremated and his ashes have been passed on to his son, Wolf. Eddie Van Halen died in October after a trying battle with Cancer. His son Wolf, who is 29, broke the news to the world on Twitter. 

Wolf stated, "He was the best father I could ever ask for. Every moment I've shared with him on stage and off stage was a gift," Wolf continued. "My heart is broken and I don't think I'll ever fully recover from this loss."

Eddie Van Halen was cremated 22 days after his death. Wolf has been very open about the difficulties he has had in dealing with his father's death. He told Howard Stern in an interview that when his father was diagnosed with stage four lung cancer, the doctors told him he had six weeks, however, they ended top up having another three years with each other. 

Wolfgang has stated that he will scatter his father's ashes in the Pacific Ocean. On social media he stated, "1 month. Not a second goes by where you’re not on my mind," he wrote. "I miss talking with you. I miss laughing with you. I miss listening to music with you. I miss making music with you. I just miss everything." And concluded with, "I love you so much, Pop. It’s really hard being here without you."

See Tyler McCarthy, Eddie Van Halen was cremated, ashes went to son Wolf, who will scatter them in the Pacific Ocean: report, Fox News, December 12, 2020. 

Rothschild descendant claims initial victory in legal battle with Vienna

A Rothschild descendant has "claimed an initial victory" in a legal battle with the City of Vienna regarding the challenge of a medical trust set up by his ancestors. The medical trust was seized by Nazis in 1938 and is now controlled by the city. 

Geoffrey Hoguet is suing the Austrian authorities for control of the trust. "The case is the latest chapter in Austria’s long, slow reckoning with one of the darkest chapters in its history, the persecution of its Jewish citizens after it came under Nazi rule, and the theft of their property and assets." 

Hoguet was supported by a court when his lawyer claimed that the city of Vienna had a conflict of interest over the foundation's finances. The court held that "an independent figure, or "collision curator" must be appointed to represent the charity in legal proceedings over a 2017 change to its statutes." 

This decision was very important as it was a step forward in correcting "the course of Nazi-era injustices endured." Hoguet has now called on Viennese politicians to take action and reinstate and independent governing board. 

Hoguet, an American, learned that his great-grandfather set up a foundation for mental health and neurological conditions. "The Nathaniel Freiherr von Rothschild foundation flourished in the city known as the birthplace of modern psychiatry, and home of Sigmund Freud, with board members at one point including a Nobel laureate."

Hoguet has made it his mission to end the pattern of erasure that "scrubbed" the city of any remembrance of the Rothschild's philanthropy and investment that shaped the city. 

See Emma Graham-Harrison, Rothschild descendant claims initial victory in legal battle with Vienna, The Guardian, November 14, 2020. 

Special thanks to Daryane Couto for for bringing this article to my attention.

Article on Contested Wills and Testaments in Ghana: Exploring the Legal Claim for Reasonable Provision for Dependants

Reginald Nii Odoi recently published an article entitled, Contested Wills and Testaments in Ghana: Exploring the Legal Claim for Reasonable Provision for Dependants, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article.

It is certain that human life is not perpetual and surely does come to an end. That notwithstanding, during one’s lifetime, several properties whether movable and/or immovable are acquired but cannot be carried along into the afterlife. Thus, the Ghanaian law and the Common law in general allows persons to execute Wills as the legal means by which property acquired during their lifetime could be disposed of, in the event of death.

Wills represent the aggregate of a person’s “testamentary intentions so far as they are manifested in writing and duly executed according to the statute.” Wills are capable of disposing of all real and/or personal property of the testator in accordance with law. The law also ensures that the true declaration of the last Will of a testator is that which is done after the death of the testator.

The law follows the intentions of the testator by leaving everything to the unfettered discretion of the testator since the law presumes that the “instincts, affections and common sentiments” of the testator may be safely trusted to secure a better disposition of the property of the dead as compared to a distribution prescribed by the stereotyped and inflexible rules of a general law.

However, there are instances where dependants of the deceased, whether deliberately or inadvertently, are not provided for in the Will of the deceased testator. In such instances, Ghanaian law does not leave dependants without a remedy. This Article thus seeks to explore the legal claim for reasonable provision out of the Will of a deceased testator in favor of dependants of the testator. By so doing, the Article would review the legal architecture as well as a number of decisions of the Superior Courts of Judicature on the subject so as to explore the jurisprudence on the subject of reasonable provision in a Will.

Sod Cemetery - Tallahassee, Florida

Florida State University is known for its love of football and the tradition that it is rooted in. Like many other powerful college football teams, the fans of Florida State flaunt their team colors, tailgate on game day, scream the team chants at the top of their lungs, etc. However, there is one Florida State tradition that is a bit unusual: the Sod Cemetery. 

In preparation for a game against the University of Georgia in 1962, professor and athletic board member Dean Coyle Moore told the players to "bring back some sod from between the hedges at Georgia." 

"Team captain Gene McDowell took the statement literally: He pulled a handful of grass from the field after the 18-0 victory, and presented it to Moore at the next practice. Moore and FSU coach Bill Peterson buried the sod on the practice field. A monument was later put in place to commemorate the victory, and the tradition of the Sod Cemetery had begun." 

Now, when Florida State marks a win in a road game as the underdog, all games against their rival—the Florida Gators —and all ACC title and bowl games, the team captains are to collect a piece of the sod from the field. 

Moore wrote about the tradition and passed on instructions on how to remove the sod, the ceremonies that follow a proper burial (in tiny coffins), and how to place the "headstones." 

Visitors can take a look at the the cemetery, which is located outside the gates of the practice field at Doak Campbell Stadium. 

See Mom0ja, Sod Cemetery, Atlas Obscura, (last visited November 5, 2020). 

Estate planning for your worldwide assets

Due to globalization, more South Africans are traveling and working abroad. Due to the rise in travel, South Africans are "purchasing assets and investing in businesses overseas." "In addition, with local political and economic uncertainty, more South Africans are investing offshore either through foreign-domiciled funds or rand-denominated funds." 

If you have foreign assets, you may need to take extra steps to ensure that the assets are protected and that their succession is correctly planned for. 

Worldwide Will

"Unless otherwise specified, your South African will covers your world-side assets." Therefore, you may need to draft as separate will that deals with your assets that are located elsewhere. "From a practical perspective and depending on the foreign jurisdiction, it may not be possible to have your South African estate and foreign estate wound up simultaneously due to requirements by each jurisdiction for certified and court-sealed documentation."

Foreign Will

Foreign wills are also referred to as offshore wills or concurrent wills. These type of wills deal with assets you own that are located in a foreign jurisdiction. This type of will is typically required when you own "immovable property or shares in an overseas company."

Probate 

You must have your South African-drafted will approved and validated by the foreign legal authority so that your foreign assets can be administered in that jurisdiction. 

Freedom of testation

"Many countries, such as South Africa, the UK and Canada enjoy the freedom of testation which is essentially the right of the testator to bequeath their assets to whoever they wish."

Mandatory succession rights

"Many countries, especially those in civil law jurisdictions and those operating under Shariah law, have mandatory succession rights – otherwise known as ‘forced heirship’. These countries include Mauritius, Switzerland, Spain, France, Japan and Portugal. While mandatory succession rights vary from country to country, these rules essentially restrict a testator’s freedom to distribute their estate as they see fit. "

Foreign Jurisdiction

There are a few things to consider if you own assets in a foreign jurisdiction. You may have to account for language barriers and translation costs which can result in delays and additional expenses. Further, if you own immovable property overseas, that jurisdiction may only recognize a will executed in that jurisdiction. 

Offshore invested assets

"If you are invested directly offshore through foreign-domiciled funds, your investments are held in the foreign country’s currency such as dollars, euros or pounds and, generally speaking, you may require a foreign will to deal with these assets. On the other hand, if you are invested offshore through a rand-denominated fund such as a feeder fund, your funds are held in South African currency and a foreign will is not required."

Tax Residency

If you are a permanent resident in South Africa, the South African tax system will control your worldwide estate. Therefore, capital gains tax and estate duty will apply to your estate. 

Accidental Revocation

"If you have a South African will and a foreign will, be sure to avoid inadvertently revoking a will. All wills should include what is referred to as a revocation clause which effectively revokes all previous wills that you have drafted."

Double taxation agreements

Consider whether South Africa has a double taxation agreement with the country where you have other assets. This is important, because if you do not take this step, you may end up paying taxes in both countries. 

See Eric Jordaan, Estate planning for your worldwide assets, MoneyWeb (South Africa), November 3, 2020. 

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