Wills, Trusts & Estates Prof Blog

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

Thursday, January 23, 2020

CLE on Anticipating Will Contests and How to Avoid Them

CLEThe American Law Institute is holding a webcast entitled, Anticipating Will Contests and How to Avoid Them, on Tuesday, March 3, 2020 at 1:00 – 2:00 pm Eastern. Provided below is a description of the event.

Why You Should Attend

Estate planners must always be on guard when drafting documents which may supply incentive for someone to contest a will. Anytime an individual would take more through intestacy or under a prior will, the potential for a will contest exists, especially if the estate is large.

What You Will Learn

Estate planners need to be able to recognize situations which are likely to inspire a will contest and take steps during the drafting stage to reduce the probability of a will contest action and the chances of its success. Join us for this 60-minute webcast that will examine:

    • Reasons to anticipate a will contest
    • Techniques to avoid contests
    • What provisions and language work best
    • Purposes and preparation of a will execution ceremony
    • Ante-mortem probate: Advantages and disadvantages

All registrants will receive a set of downloadable course materials to accompany the program.

Who Should Attend

This accredited continuing legal education program will benefit all estate planning attorneys and professionals.

January 23, 2020 in Conferences & CLE, Current Affairs, Estate Administration, Estate Planning - Generally, Wills | Permalink | Comments (0)

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)

Monday, January 20, 2020

Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm

CryogenicsKurt Pilgeram says that the company Alcor Life Extension Firm was to preserve his late father's body cryogenically, but instead only froze the man's head, and sent Kurt the rest of his ashes. He sued the company for a million dollars, claiming the event caused him extreme mental distress. Now Alcor is countersuing the son, claiming fraud by way of hiding documents from the probate court.

Diane Cafferata, the attorney who represents the company, says that "After [Laurence] Pilgeram died in 2015, his son hid the codicil and all his father's testamentary documents from the probate court and falsely claimed his father died intestate," thus causing Kurt and his brother to inherit their father's $16 million fortune. Cafferata also claims that the son blocked the company from received an $80,000 life insurance policy that was to pay for the preservation. Within the alleged codicil is a provision that states if a beneficiary challenged his father's wish to be preserved, they were to receive merely a dollar.

Laurence Pilgeram was a scientist that worked for several decades in the field of cryogenics and entered into an agreement with Alcor back in 1990 at the age of 67 to be preserved upon his death. When he died in 2015 of cardiac arrest he was 90. The program requires the person's body to be brought to the company as soon as possible after death, but Alcor was not notified until three days after Pilgeram's passing. Because of this, they were forced to do a "neuro-isolation," where only the head is preserved and the rest of the body is cremated because the future may hold the ability to regrow a healthy body around a functioning brain, according to the company's website.

Pilgeram is the company's 125th person to be preserved.

See James Gordon, Son's Legal Fight for Dead Dad's Frozen Head Against Cryogenics Firm, Daily Mail, January 18, 2020.

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


January 20, 2020 in Current Events, Death Event Planning, Estate Planning - Generally, New Cases, Science, Wills | Permalink | Comments (0)

Friday, January 10, 2020

CLE on 2020 Tax Updates for Trusts and Estates

CLEThe National Business Institute is holding a video webcast entitled, 2020 Tax Updates for Trusts and Estates, on Thursday, January 30, 2020 from 9:00 AM - 4:00 PM central. Provided below is a description of the event.

Get the Latest Information and Tools to Save Clients on Taxes

This incisive course will get you up to speed on the year's developments in estate planning and asset protection tax laws so you can make tactical decisions and provide cutting -edge representation. Let our esteemed faculty guide you through ongoing legislative developments, key laws and rulings so you can enhance your tax planning strategy and ensure compliant returns - register today!

    • Clarify recent changes in tax law and regulation and prepare for their potential effects.
    • Analyze the most important case law of the year to glean future threats and opportunities for your clients.
    • Hear about new tax tools to add to your arsenal.
    • Get an advance look at future developments coming down the pike.

Who Should Attend

This essential tax update is for attorneys. Accountants, tax professionals, wealth managers, trust administrators/officers and paralegals will also benefit.

Course Content

    • Current Relevant Federal Tax Laws, Rates, Exemptions
    • Trust Tax Deductions under TCJA: Core Changes and Clear Guidance
    • IRS Tax Forms and Procedures Updates
    • Unpacking the Section 199A Changes and Opportunities
    • SECURE Act and Its Effect on IRA Planning
    • Current IRS Guidance and Enforcement Initiatives
    • Cross-Border Tax Issues Every Estate Planner Needs to Know
    • Reassessing and Repairing/Replacing Old Tax Planning Techniques
    • Legal Ethics and Tax Planning
    • Looking Ahead

January 10, 2020 in Conferences & CLE, Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Income Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Thursday, January 9, 2020

How to Enforce a Contract to Make a Will in Montana

CourtroomMontana adopted the Uniform Probate Code in 1974 and under the state's provisions a contract to make a will is enforceable. The suit must be brought before a court of general jurisdiction, however, instead of in a probate court.

In Estate of Cooney, 2019 MT 293, the Supreme Court of Montana ruled that though the statute was within the probate code, a district court does not have jurisdiction to hear a case pertaining to a succession contract - a valid contract to dispose of his property by will. The case involved a man that left all of his property to one of his four children, though him and his ex-wife entered into a  marital property settlement agreement which provided that he was required to leave his real property to his children, in equal shares. Two of his children moved to invalidate the portion of the will leaving the real property to only one child, arguing breach of the agreement and fraud on the court.

"If a party to a succession contract fails to carry out the promise to make a valid will, courts of equity will grant relief in the nature of specific performance by compelling the personal representative, the heirs, devisees, or legatees to hold the property as trustees for the benefit of the promisee." The Court continued, :The equitable remedy of specific performance thus must be sought in a court of equity; it may not be administered by the probate court in a direct proceeding for that purpose. "

See How to Enforce a Contract to Make Will in Montana, Probate Stars, January 8, 2020.

January 9, 2020 in Current Affairs, Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Thursday, January 2, 2020

Estate Planning New Year’s Resolutions: Resolve To Plan Better

NYE2020Many people are determined to abide by their New Year's resolution, whether it be working out, sticking to a diet, or generally being a better person. But there is one resolution that person should stick to - plan better for the future.

  • Resolve to plan before the election. If the Democratic party gains enough traction, whether it be in the Senate or in the Oval Office, a severe estate tax bill may be coming. Meet with an estate planning professional to make sure your assets are safe, just in case
  • Resolve not to repeat the biggest 2012 planning mistake. In the last year of uncertainty, many people transferred large assets into irrevocable trusts and then immediately had a decent amount of remorse. There are other tools that estate planners possess that can get assets out of your estate that will not cause buyer's remorse.
  • Resolve to evaluate all existing life insurance trusts. Currently, the annual exclusion gift amount is $15,000 per donee, but depending on the election results, that may change to $20,000 per donor. If the $20,000 cap is enacted, you might have difficulty funding your life insurance premiums by gifts to the trust. 
  • Resolve to review appreciated assets inside every grantor revocable trust. Given the run-up in the stock market over the past decade, if you have not recently reviewed appreciated assets inside your trust, you should to avoid your estate obtaining a step-up in the income basis of those assets.
  • Resolve to review tax reimbursement clauses (or not) in your revocable grantor trusts.
  • Resolve to talk to your entire planning team about the secure act.
  • Resolve to fund your trusts.
  • Resolve to revise your documents, including power of attorney.

See Martin Shenkman, Estate Planning New Year’s Resolutions: Resolve To Plan Better, Forbes, January 1, 2020.

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

January 2, 2020 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Tuesday, December 31, 2019

Community Property Rights In Florida: File a Creditor Claim

FloridaMany states in the US are community property states but Florida is not one of them. But community property rights acquired in community property states can be enforced in Florida. In a recent case, Johnson v Townsend, the court determined that community property rights are a claim that must be pursued, not an automatic right in Florida. 

The case involved a married couple that moved from Texas (a community property state) to Florida. The husband died and was survived by his wife and his children from a prior marriage. The husband's will was admitted to probate and the wife was appointed personal representative, in which she published a notice to all creditors against the estate that same month. 2 and a half years later, she filed a claim under the Florida Uniform Disposition of Community Property Rights at Death Act. The wife sought to confirm and effectuate her vested 50% community property interest in an investment asset acquired and titled in the decedent’s name while the decedent and the wife were domiciled in Texas. The children objected.

The Act does not contain a deadline to file a community property claim against an estate, but creditor claims do have deadline depending on the type. The wife argued the deadlines did not apply because as community property, the assets were never the husband's, while the children argue the deadlines did apply as the assets were within the decedent's estate. The court agreed with the children and ordered that the deadline for community property claims were 3 months after the personal representative (the wife) published the notice to creditors.

See Community Property Rights In Florida: File a Creditor Claim, Probate Stars, December 4, 2019.

December 31, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, New Cases, Wills | Permalink | Comments (0)

Saturday, December 21, 2019

What The Movie ‘Knives Out’ Gets Right (And Wrong) About Estate Planning

KnivesoutThe murder mystery Knives Out appears to be the surprise hit of the 2019 holiday season, racking up $70 million at the box office and numerous award nominations. The patriarch of a wealthy family, Harlan Thrombey played by Christopher Plummer, is found dead. It is soon discovered that just prior to his demise, the patriarch had changed his estate plan. During the plot's twists and turns, several concepts of estate planning our mentioned, including undue influence, slayer statutes, and will contestation.

Par for the course for Hollywood, one dramatic scene in particular in the movie is the titular will reading of the recently deceased. In a wood paneled library, the estate attorney sits behind the patriarch’s desk and reads the document. Many movie goers might be surprised that this is not an actual event. Paula Leibovitz Goodwin, partner in the Personal Planning Group at Perkins Coie in San Francisco, says that, “In the past there have been some that I have disappointed when I told them that there is no will reading in real life.”

Other concepts brought up by the movie are closer to reality. Christopher J. Burns, partner in Estate and Tax at Henson & Efron in Minneapolis, Minnesota, comments that due to increased longevity and failure to keep estate plans updated, “Contesting wills is becoming increasingly common." Undue influence is a common red flag, especially when a will is dramatically changed such as what occurs in the movie: natural heirs are disinherited and suddenly a caretaker is the sole beneficiary.

Though the term slayer statute seem farfetched and created from the mind of a Hollywood producer, it is a real premise in estate law. Under a state that has such a statute, an individual cannot inherit if they intentionally killed the deceased for the purpose of inheriting. “Some states apply the rule only to those convicted of homicide, others apply it to manslaughter, with some allowing the 'slayer’s' descendants to receive what the 'slayer' would have inherited, and others cutting off the slayer’s family line,” explains Caitlin Carey, an estate planning attorney in the Personal Planning Group at Perkins Coie.

See Megan Gorman, What The Movie ‘Knives Out’ Gets Right (And Wrong) About Estate Planning, Forbes, December 18, 2019.

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

December 21, 2019 in Estate Planning - Generally, Film, Humor, Wills | Permalink | Comments (1)

Friday, December 20, 2019

Tax Update: The Impact of Newly Published Regulations on the Estate and Gift Tax Laws

TcjaIt has been two years since the passage of the Tax Cuts and Jobs Act (TCJA), and the Department of the Treasury is still publishing regulations to clarify the impact of the new law on the estate and gift tax rules. The newest regulations were provided last month and they may effect your current estate plan.

From the 2018 to now, the annual gift tax exemption amount has stayed the same at $15,000, or $30,000 for couples. The estate tax exemption has been increased to $11,580,000 (or $23,160,000 for a married couple) in 2020 due to inflation. This amount is set to sunset, or expire, on January 1, 2026 and revert back to TCJA numbers. The November regulations clarified that assets transferred or gifted before the sunsetting of the Increase Exemption Amount will be sheltered from estate tax once the amount is lowered back to the Basic Exemption Amount. The regulations also confirm that in general, a taxpayer’s gift is deemed to be made first from his or her Basic Exclusion Amount, and second, from his or her Increased Exemption Amount.

Another question was presented, dealing with the deceased spousal unused exemption (DSUE). Under certain circumstances, a decreased spouse can transfer their unused exemption amount to their surviving spouse. The regulations confirmed that though the living spouse's exemption amount will revert back to the pre-TCJA amount, the transferred DSUE of a spouse who passed away before January 1, 2026 will not revert back to the lower amount.

See Alexia M. Fishman, Tax Update: The Impact of Newly Published Regulations on the Estate and Gift Tax Laws, Cozen O'Connor, December 16, 2019.

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

December 20, 2019 in Current Affairs, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation, Trusts, Wills | Permalink | Comments (1)

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)