Wills, Trusts & Estates Prof Blog

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

Thursday, November 15, 2018

Article on The Rhetoric of Race, Redemption, and Will Contests: Inheritance as Reparations in John Grisham's Sycamore Row

SycamoreTeri A. McMurtry-Chubb recently published an Article entitled, The Rhetoric of Race, Redemption, and Will Contests: Inheritance as Reparations in John Grisham's Sycamore Row, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

When Henry “Seth” Hubbard renounced his formally drawn wills and created a new holographic will on the day of his suicide, one that excluded his children, grandchildren, and ex-wives, and gave the bulk of his estate to his housekeeper and caretaker, a will contest was imminent. That Seth Hubbard was a white man living in rural Mississippi and his housekeeper, a Black woman, made the will contest illustrative of our ongoing national discomfort with slavery, the Confederacy, and the respective obligations of and responsibilities to the descendants of both. This is John Grisham’s Sycamore Row, a novel in which the reader journeys to discover the mysteries behind Seth Hubbard’s will, his intentions, his burden as a witness to a lynching over his ancestor’s land, and the fate of the descendants of the formerly enslaved who worked and settled that land known as Sycamore Row only to see its destruction when they asserted their right to it. Seth’s act of bequeathing the bulk of his estate to a stranger made family through blood spilled over stolen land and stolen, broken Black bodies is an important start to an important discussion: Who bears responsibility to the survivors of domestic terrorism, white supremacy, and for the benefits that white privilege bestows? The will contest encapsulates the rhetoric of race and redemption; in Sycamore Row Hubbard’s estate acts as reparations.

This Article explores the rhetoric of race, redemption, and reparations in Sycamore Row and as it plays out in American jurisprudence in three parts. Part II explores how the will contest in Sycamore Row illustrates arguments for and against reparations. Specifically, it evaluates how Aristotle’s Persuasive Appeals logos (using evidence and epistemology to persuade), pathos (using emotions to persuade), and ethos (using character to persuade) become racialized in the nomos (the normative universe where they function), both in Seth Hubbard’s will and the will contest that follows, and as used as appeals in reparations litigation. Part III uses interdisciplinary narrative theory to interrogate the language of Seth Hubbard’s will as his cultural narrative of race, racism, and redemption. It also considers how Seth’s story is a story of American racism that ends differently from our current American story. Seth’s story is a doorway to hope and a different way of viewing obligations and responsibilities to redress racial wrongs. In the final section, Part IV, the Article turns to the concept and practice of reconciliation, specifically how Seth Hubbard’s actions through his will, the backlash from his family, and the reverberations throughout Clanton, Mississippi provide a glimpse of racial reconciliation in practice. Hubbard’s will and the context for its creation demonstrate that racial reconciliation begins with acknowledgment of harm done, presents a plan to address the harm, and contains an action or action(s) to implement the plan. While Hubbard’s is one will, his will is a roadmap for the nation, as comprised of individual actors, to acknowledge and address racial harms and for racial reconciliation. The Article concludes with a call to disrupt the dangerous racial rhetoric that renders our country brittle and prone to shattering, threatening America with irreparable brokenness.

November 15, 2018 in Articles, Books - Fiction, Estate Planning - Generally, Wills | Permalink | Comments (0)

How to Choose the Right Guardian

BabyhandIf you have minor children, selecting the right person to be the guardian for them in the tragic instance that you die or become incapacitated is one of the most important planning decisions that you have to make. Failing to do so could put the future of your precious offspring in the hands of an impersonal court system.

Tackling the responsibility of another person's child or children is not one that should be taken lightly, and thus should be accepted willingly and with a complete understanding of the duty. A proper guardian should be reliable and stable, with sound judgment and values that are similar to your own so the person can be an appropriate surrogate parent. Though being a family member is often seen as a necessary factor in being a guardian, it is not required. But having an established and caring relation with the child or children can be considered immensely valuable.

Children can be inherently expensive, from sports to education to medical bills. Asking a person to be the guardian for your children is also asking them to be responsible for their financial obligations as well. Therefore, it is important to work with a knowledgeable estate planner who can help arrange financial support not only directly for your child, but also if necessary, for the personal costs that the guardian incurs in taking care of your children. Depending on the circumstances and the people or person you choose, the trustee for your children's trust can be the same person or different from the person who choose to be the children's guardian.

See Cheryl E. Hader & Jonathan Kane, How to Choose the Right Guardian, Kramer Levin, November 8, 2018.

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

November 15, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Wednesday, November 14, 2018

Paul Allen's Will Sheds Little Light on What Will Happen to Estate

PaulallenPaul Allen’s six-page will was filed with King County on October 24, the same day that his sister, Jody, was announced as his executor and trustee of his estate. His will did not provide as much clarification as anticipate, instead pointed to a living trust established decades ago. The disposition of the assets within the trust are not expected to be made public. Forbes has estimated his wealth at $20 billion.

Allen died on October 15 at age 65 from complications of non-Hodgkin lymphoma. He was a co-founder of Microsoft, owned the Seattle Seahawks, donated significantly to the arts community and scientific research, and ran the multifaceted Vulcan Inc., which reshaped the real-estate landscape of South Lake Union.

Jody Allen said last month that “I will do all that I can to ensure that Paul’s vision is realized, not just for years, but for generations.” Allen signed the will on July 18, with two Vulcan employees as witnesses.

See Rachel Lerman, Paul Allen's Will Sheds Little Light on What Will Happen to Estate, Seattle Times, November 8, 2018.

Special thanks to Adam J. Hirsch (Professor of Law at the University of San Diego School of Law) for bringing this article to my attention.

November 14, 2018 in Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Monday, November 12, 2018

Discussing the Issue of Aging Parents

DinnerThe recent changes in the tax law may induce several families to bring up the uncomfortable topic of aging parents this holiday season. But these types of conversations can offset the possibility of any unpleasant surprises in the future.

The decision will ultimately be up to the parents, but even if children are to be the ones that bring up the subject, preparation and research should be done beforehand. Durable power of attorney, health care agent and executor are all positions that have certain responsibilities and requirements. Each one should be discussed with family members or close friends, or if those parties are not acceptable (or they decline), other arrangements should be considered.

A frank discussion of parental assets may make it easier for children to understand the overall planning objectives and decision-making process. An understanding of parental assets can also help with long and short term planning, ranging from tax strategies and charitable giving to options in the event of a long-term care illness. The increase in the standard deduction many people will no longer itemize deductions, and the increased federal estate tax exemption of $11,180,000 may make some charitable donations obsolete - for tax benefit purposes. Beneficiaries may also benefit from a step-up basis for highly appreciated assets, thus saving in capital-gains taxes.

See Kristin Shirahama, Discussing the Issue of Aging Parents, Financial Advisor, November 6, 2018.

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

November 12, 2018 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation, Wills | Permalink | Comments (0)

Saturday, November 10, 2018

Article on Testamentary Freedom and Family Protection in Scotland

ScotlandKenneth Reid recently published an Article entitled, Testamentary Freedom and Family Protection in Scotland, Wills, Trusts, & Estate Law eJournal (2018). Provided below is an abstract of the Article.

In a sense, testators in Scotland are free to do as they please, for a will is not challengeable on the ground of having failed to provide for children, or a spouse, or some other relative. Yet, regardless of what a will says or does not say, a child or spouse of the deceased is entitled to a fixed share of the deceased’s estate. Since 1964 this has been confined to the deceased’s movable estate and there is no claim in respect of immovable property. Where a deceased is survived by both spouse and children, the movable estate is divided into three – one-third for the spouse, one-third to be shared among the children, and one-third to be disposed of in accordance with the will. Where only a spouse, or only children, survive, the division is into two equal parts and not three. These ‘legal rights’ of the children and surviving spouse are personal rights against the executor of the deceased and are satisfied by payment in money.

This paper considers the history of legal rights in Scotland, their scope and calculation, the rules on discharge, the requirement to collate lifetime advances, and the requirement to choose between legal rights and an express bequest in the will.

Legal rights are of medieval origin, and have survived various attempts to change them. In recent years, the position of children has been seen as especially controversial. On one view, children should have merely a maintenance claim from the deceased’s estate, in cases of proved need. On another view, a child’s position in the family should continue to be recognised by means of a fixed share in their late parent’s estate. In the absence of consensus on this issue, the Scottish Government has recently rejected a package of reforms proposed by the Scottish Law Commission. Uncertain as to what the future should hold, Scotland has chosen to stick with rules developed, unthinkingly, in the distant past.

November 10, 2018 in Articles, Current Affairs, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, November 9, 2018

A To-Do List for Widows, and How to Protect the Identity of a Dead Loved One

Calla-liliesWidows and widowers are often facing debilitating grief while attempting to get their lives, futures, and finances in order. Having an effective plan and to-do list in place could make this difficult time more emotionally manageable. Also, having a deceased loved one's identity stolen can be a painful reminder of their absence, and a great violation to their memory, so taking steps to prevent it are important.

  • Inform Social Security of the loved one's death and notify all credit bureaus as well to freeze the person's credit.
    • Death Certificate and letters testamentary will be required.
  • Notify tax preparer, and financial institutions.
    • In the event that there is a non-qualified account then there should be a step-up in basis on at least 50% of the account and possibly 100% of the account, depending on the circumstances.
    • And IRA can be treated as a rollover account for a spouse
  • Review life insurance policies and see your options so you can decide what makes the most sense based on cash flow needs.
  • Meet with an estate planning attorney if there was a will or trust to understand the loved one's final wishes.
  • Have a tax projection prepared.
  • Sign proper forms for all brokerage accounts and new account forms in order to reflect the new ownership and title.

See Karin Price Mueller, A To-Do List for Widows, and How to Protect the Identity of a Dead Loved One, NJ.com, November 6, 2018.

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

November 9, 2018 in Current Affairs, Elder Law, Estate Administration, Estate Planning - Generally, Income Tax, Non-Probate Assets, Trusts, Wills | Permalink | Comments (0)

Wednesday, November 7, 2018

Estate-Planning Strategies for Art and Collectibles Explained

VangoghOn November 1 at Bonhams in New York City, three experts in the field of trusts and estate planning discussed the various options available to clients regarding planning for art disposition, the need for appraisals and the importance of communicating one’s wishes with the next generation.

“Intentional planning is the most important issue to address with your clients,” Sherri Cohen, vice president and director of valuations, Trusts & Estates at Bonhams stated. Many clients also seem to overlook the big picture of disposing or transferring a collection. Many pieces may have monetary value but others may have emotional value, possibly due to knowing the artist that produced a piece or simply because the client has had that piece for decades.

Warren K. Racusin, a partner and chair of the trusts and estates group at Lowenstein Sandler LLP in New York City, noted that, “collectors are good with acquisitions but often make mistakes regarding the four methods of disposing their art.” Those method are selling, gifting, bequeathing, and donating to a charitable organization or charitable remainder trust. Appraisals are necessary to establish basis, no matter how the pieces are disposed of from the estate.

Communication within a family when it comes to art collections is vital, and lack of it is a prime cause of litigation. Parents must be transparent about their reasons for disposing of their art and ascertain their children’s preferences. If parents want to dispose of their art, the first question to the children should be: “Do you want this stuff?”

See Dawn S. Markowitz, Estate-Planning Strategies for Art and Collectibles Explained, Wealth Management, November 5, 2018.

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

November 7, 2018 in Current Affairs, Current Events, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Tuesday, November 6, 2018

Article on Sign on the [Electronic] Dotted Line: The Rise of the Electronic Will

SignatureGerry W. Beyer & Katherine Peters recently published an Article entitled, Sign on the [Electronic] Dotted Line: The Rise of the Electronic Will, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.

The electronic will is here … almost. The last two years have seen rapid development in the area of electronic wills. As of September 2018, several states either have enacted electronic will statutes or are in the process of considering such legislation. This article provides the history of e-wills and reviews e-will statutes, both enacted and proposed, along with the Summer 2018 draft of the Electronic Wills Act.

November 6, 2018 in Articles, Elder Law, Estate Planning - Generally, New Legislation, Technology, Wills | Permalink | Comments (0)

Insolvent Estates of Wealthy Decedents

Probate2The Internal Revenue Service has been emboldened by the strength of federal law and a recent case in which federal taxes were deemed a higher priority than fiduciary fees, thus creating issues for unwitting executors for insolvent (yet materially wealthy) estates. These type of estates usually involve an impressive menagerie of assets anchored with debts, such as homes with large mortgages, promissory notes in favor of closely held businesses, and high credit card balances.

The messy web of debts may also be coupled with tangled relationships with ex-spouses, children, and disputes with present or former business associates. There could be obligations from a divorce decree or settlement that must be performed before other responsibilities, so an advisor should work with the executor to lay out a plan. It should succinctly explain all assets and liabilities and a strategy for locating other assets and liabilities, and understand state statutory requirements to prioritize certain claims if the estate cannot sufficiently pay all claims. Many states are modeled after the Uniform Probate Code, but may have subtle differences.

The executor is free to negotiate with creditors in the best interest of the estate, and many creditors are willing to do so. They may believe that some money is better than no money at all.

Lastly, devise a method to protect the executor. On the opening of the estate, the executor should consider filing in the probate court a request for authority to pay fiduciary compensation and other expenses of administration, even if those expenses are still unknown at the time.

See Mark D. Brandenburg, Insolvent Estates of Wealthy Decedents, Wealth Management, October 31, 2018.

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

November 6, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Trusts, Wills | Permalink | Comments (0)

Monday, November 5, 2018

CLE on Estate Planning and Administration: The Complete Guide

CLEThe National Business Institute is holding a conference entitled, Estate Planning and Administration: The Complete Guide, on Wednesday, January 23, 2019 - Thursday, January 24, 2019 in San Diego, California. Provided below is a description of the event.

Program Description

Find Out How Key Estate Planning Tools are Drafted and Implemented

Every client's estate is unique in its assets composition, family dynamics and future needs, but all are ruled by the same principles and are subject to the same tax and legal limitations. In this comprehensive legal guide, experienced attorney faculty will guide you through the process of estate planning and administration and show you how to select the best trust instruments and wield them skillfully to avoid mistakes at probate. They will also teach you how to properly administer the estate and tackle potential mistakes of improperly drafted documents, changed circumstances and newly arising conflicts. Become fully prepared to protect your client's legacies - register today!

  • Get an update on the current tax regime and other key regulations.
  • Get the case off on the right foot with a thorough and thoughtful client intake.
  • Compare key trust structures and their effect on the grantor and beneficiary tax future burdens.
  • Help clients plan for and fund long-term care.
  • Ensure confidentiality before and after the client's death.
  • Get useful checklists for key dates and tasks in estate administration.
  • Clarify what can be distributed through non-probate transfers and how to do it correctly.
  • Explore creditor issues in estate administration and get trouble-shooting tips from the pros.
  • Find out how much planning can still be done after the client's passing.
  • Discuss the duties and powers of fiduciaries, their limits and real-life application.
  • Get tips for closing the estate to prevent future disputes.

Who Should Attend

This basic-to-intermediate level seminar on estate planning and administration is designed for:

  • Attorneys
  • Accountants and CPAs
  • Paralegals
  • Tax Managers
  • Trust Officers
  • Certified Financial Planners
  • Investment Advisers

Course Content

DAY 1: ESTATE PLANNING AND TRUST BASICS

  1. Key Laws and Client Intake/Goal Setting
  2. Planning for Long-Term Care and End-of-Life Decisions
  3. Testamentary Documents - Drafting Do's and Don'ts
  4. Common Trust Structures and When They're Used
  5. Transfers During Life and Inter-Vivos Trusts
  6. Tax Consequences of Trusts

DAY 2: PROBATE AND ESTATE ADMINISTRATION

  1. Probate Process Overview
  2. Marshalling Assets and Dealing with Creditors
  3. Post-Mortem Tax Planning Options
  4. Legal Ethics in Estate Practice
  5. Trust Administration and Termination Basics
  6. Closing the Estate

November 5, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, Trusts, Wills | Permalink | Comments (0)