Wills, Trusts & Estates Prof Blog

Don’t Let Death Be Your Deadline: Get A Will Before It’s Too Late: Expand Holographic-Wills Law to Incentivize Will-Making

Angela M. Vallario (University of Baltimore School of Law) recently published a paper, Don’t Let Death Be Your Deadline: Get A Will Before It’s Too Late: Expand Holographic-Wills Law to Incentivize Will-Making, Elder Law Journal, Forthcoming. Provided below is an abstract to the paper:

Procrastination is the number one reason for Americans’ lack of will-making. Many fail to get this important task completed before death despite acknowledging its importance. No one thing will remedy the lack of will-making in America. This Article suggests one way to address the problem is to more aggressively educate people on why a will is necessary, especially when blended families and children are part of the intestate’s family. The education efforts should target young adults in their senior year of high school and be further employed at universities, coupled with broader efforts to reach adults. Law students, in line with ABA303(a)(3), are uniquely situated to provide education to their communities and local area. Additionally, attorney-supervised law students could engage in will-making while simultaneously creating experiential learning opportunities.

Secondly, Americans need a self-help option that is readily available when needed. This minimizes concerns of the holographic will by expanding holographic-will law to include a one-page fill-in the blank statutory form. Although a professionally prepared will is ideal, there need to be other options to encourage will-making. Americans are self-sufficient and making a holographic form available when people have medical issues or travel could incentivize some to prepare a holographic form as a stepping stone towards a more complex estate plan, and serve as a placeholder to avoid intestacy in the event of the inevitable.

Minnesota Governor signs electronic wills into law

Minnesota Governor Tim Walz signed the Uniform Electronic Wills Act yesterday, allowing wills to be completed electronically instead of in writing. This will make Minnesota the eleventh electronic-will state on August 1, 2023.

The bill will incorporate electronic wills into the state probate code by redefining terms rather than legislation distinct from the preexisting statute.

For more information see Cory Knudsen “Governor Walz signs homelessness prevention and electronic wills into law” KSTP News, March 31, 2023.

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

Is It OK to Rule From the Grave?

Imposing conditions on your loved ones during the estate planning process can be helpful, so long as they are reasonable. Overly burdensome conditions can lead to disastrous results, so conditions need to be clear, measurable, and practical to help protect estate plans and beneficiaries. 

Conditions, such as putting an age requirement on a child’s ability to assume the role of executor, can be practical. Representatives of estates must be legal adults, and measuring age is easy to do. However, when requirements become more complex, like requiring college attendance and imposing GPA requirements, measuring the outcome can be difficult. What if, instead of entering a traditional university, the child enters a trade school or military service? Or perhaps they choose a major where earning high marks is difficult to do? 

Other conditions, like implementing the HEMS standard (health, education, maintenance, and support) are common and considered relatively clear and measurable. Conditions like, distributions being made upon the beneficiary becoming a parent are too complex. What if they become a step-parent, or are unable to have children? When conditions are overly limiting it can be settling the estate too complicated and time-consuming, and lead to resentment on behalf of family members.

For more information see Allison L. Lee “Is it OK to Rule From the Grave?”, Kiplinger, November 4, 2022

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

Study of Wealthy Americans Highlights Stark Contrasts Between Generations

 Earlier this year, Bank of America conducted a Private Bank Study of Wealthy Americans and found significant differences amongst generations around investing, spending, philanthropy, and wealth planning. This is significant because it is expected that $73 trillion will be passed on to the next generation in the next decade-plus, with another $11 trillion given to charity. 

The study surveyed over 1,000 high-net-worth individuals and found that three-quarters of younger people are not as confident in returns on traditional stocks and bonds as older generations, with younger generations more interested in sustainable investments that they hope can make a positive impact on the world. 73% of millennials have invested in sustainable investments compared to only 21% of older respondents.

When it comes to philanthropy, only half of all donors support the same causes as their parents, many seeking to find their own philanthropic identity. Another key finding was that only half of parents feel that their children are well prepared to inherit their wealth. Estate planning is a critical client need, with advisors central to addressing the needs of clients with well-executed plans that will address the communication and family dynamics that the older generations are concerned about.

For more information see Joe Dziemianowicz “Study of Wealth Americans Highlights Stark Contrasts Between Generations”, Barron’s PENTA, October 11, 2022.

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

Article: Thrills and Chills and Postage and Wills; a Look at a Few Aspects of 'The Five Orange Pips'

Leslie Katz recently published an article entitled, Thrills and Chills and Postage and Wills; a Look at a Few Aspects of 'The Five Orange Pips', 2022. Provided below is the abstract to the article:

The paper discusses a few aspects of “The Five Orange Pips": its date of action; the likelihood of Elias's threatening letter having been sent through the French postal system; and the validity of Elias's will.

The story “The Five Orange Pips” (hereafter “FIVE”) was first published in the November 1891 issue of The Strand Magazine.1 It was the seventh in order of first publication of the sixty adventures that together constitute the Sherlock Holmes Canon, all of them written, of course, by Sir Arthur Conan Doyle. Of the six Canonical adventures that preceded FIVE in order of first publication, the first two were novels and the next four were stories. Of the two novels, one was The Sign Of Four (hereafter “SIGN”), first published in the February 1890 issue of Lippincott’s Monthly Magazine,2 while of the four stories, one was “A Scandal In Bohemia” (hereafter “SCAN”), first published in the July 1891 issue of The Strand Magazine.3 I single out SIGN and SCAN for mention now among the six Canonical adventures that preceded FIVE in order of first publication because, in FIVE: (1) SIGN was referred to by name; and (2) SCAN was referred to by implication. I’ll be discussing below the significance of those references.

Khloé Kardashian said that it's in her will to get her nails done 'once a week' if she's in a coma: 'People are gonna visit me'

In the most recent episode of Hulu’s “The Kardashians,”  sisters Kylie Jenner and Khloé Kardashian discuss post-death wishes with their mother, Kris Jenner, as the matriarch prepares for hip-replacement surgery. 

Kardashian later elaborates to the camera, “If I’m in a coma, I’m still getting my nails done once a week, and that’s in my will… Cause people are gonna visit me.” It is important to note that a will would not effectively dictate this until her passing. This information needs to be included in a durable power of attorney.

The family says they frequently discuss their wills and preferences, with Kris saying how she and Kylie have talked about picking out a mausoleum for the family, while Khloé ponders cremation. She speculates as to what would happen if a company like Disney decided to buy and develop land on which her family was buried. “Can you imagine being haunted by the Kardsashians?”

For more information see Palmer Haasch “Khloe Kardashian said that it’s in her will to get her nails done ‘once a week’ if she’s in a coma: ‘People are gonna visit me’," Insider Entertainment, October 20, 2022.

Special thanks to Deedee Nachman (Professor of Law, North Carolina Central University School of Law) for bringing this article to my attention.  

Celebrity Estate Planning: Misfires of the Rich and Famous

Celebrities are not immune to the pitfalls of having outdated or nonexistent estate plans, and even if careful estate planning has taken place, changes in family circumstances or tax laws can have negative impacts. 

This article takes a look at some famous mistakes made by famous people, including over simplistic wills (Jim Morrison), after-born children (Philip Seymore Hoffman), domicile (Heath Ledger), second families and decanting (David Bowie), and oral promises (Anna Nicole Smith.)

Ultimately, what all of these mistakes have in common is that they are preventable. Simple updates or revisions can make substantial differences for beneficiaries and it is important to take time to protect love ones with complete and updated estate plans.

For more information see Jessica Galligan Goldsmith, Shaina S. Kamen, Christiana M. Lazo, David J. Posner, and Bruce D. Steiner “Celebrity Estate Planning: Misfires of the Rich and Famous” ABA Probate & Property Magazine, September/October 2022.

Why People of Color Are Less Likely to Have a Will

According to a survey conducted by Consumer Reports earlier this year, high numbers responded not having a will in place. While the COVID-19 pandemic has served as a wake-up call for many Americans around end-of-life planning, it is still reported that 1 in 3 Americans don’t have a will.

The Consumer Report Survey showed a noticeable difference in responses from people of color, with the top reasons cited as being too young, not having enough assets, not being sure how to create one, or assuming their next of kin will automatically receive everything. However, the most common reason is that they planned to create one but haven’t gotten around to it.

Maria Victoria Colón, a certified public accountant, told Consumer Reports that the general belief in the Hispanic community is that wills and financial planning is “only for rich people.” She teaches financial literacy on Instagram and TikTok in hopes of dispelling this myth and warns against the assumption that things will easily transfer to the next of kin. There can be difficulties if the family structure is complicated.

Another reason cited is that they prefer not to think about death, which for some cultures, is not appropriate topic of discussion and can be a big roadblock to creating a will.

For more information see Althea Chang-Cook “Why People of Color Are Less Likely to Have a Will” Consumer Reports, August 10, 2022.

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

Anne Heche estate battle begins as ex James Tupper claims he was left in charge, not her 'estranged' 20-year-old son

The dispute over Anne Heche’s estate has begun to heat up over who should be in charge after the actress died intestate. Her eldest son, Homer, requested to serve as special administrator last month, however, now her ex is contesting Homer’s appointment.

James Tupper, the father of Heche’s youngest son, claims he has a “will” from January 2011 that was given to him “in case [Anne] dies tomorrow.” Additionally, he has expressed numerous reasons why he does not believe Homer is equipped for the job, one being that he was estranged from his mother when she died.

The 2011 “will” is an email sent from Heche to Tupper and entertainment attorney, Kevin Yorn, with the request that it serve as her final wishes until formal papers could be drawn up. This email dictates that her assets would go to Tupper to manage and divide amongst her sons equally until they reach the age of 25. At that time, they could sell her real estate and split the money.

Another shocking claim to arise from Tupper's filing is that Homer has changed the locks on his mother’s apartment where she and her younger son resided, and has listed the residence as “vacant” in the court filing. Tupper notes this is “concerning as her home had previously been full of furnishings, jewelry, valuables, files, and records and their removal was in no way authorized by the Court.”

For more information see Suzy Byrne “Anne Heche estate battle begins as ex James Tupper claims he was left in charge, not her 'estranged' 20-year-old son” Yahoo! Entertainment, September 16, 2022.

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

Article: Texas Estate Planning Judicial Update: Summer 2022 Edition

Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law at Texas Tech University School of Law) recently published an article entitled, Texas Estate Planning Judicial Update: Summer 2022 Edition. Provided below is an abstract of the Article:

This article discusses recent judicial developments (first half of 2022) relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters. The discussion of each case concludes with a moral, i.e., the important lesson to be learned from the case. By recognizing situations that have led to time consuming and costly litigation in the past, estate planners can reduce the likelihood of the same situations arising with their clients.