Wills, Trusts & Estates Prof Blog

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

Friday, February 24, 2017

Beloved Dog's Ashes Returned to Mourning Family

FlewellingAfter the Flewelling family had just mourned the loss of their beloved golden retriever, a thief stole the dog’s ashes from their car. As soon as the family realized the ashes had been stolen, they reported it to their local police department. The investigation happily led to the dog’s ashes being returned to the family. The family attributes the return to the power of social media, helping them to get the word out about their beloved pet.  

See Kathryn Larson, UPDATE: Beloved Dog’s Ashes Stolen in Janesville, Are Returned!, Wkow.com, February 21, 2017. 


February 24, 2017 in Current Events, Death Event Planning | Permalink | Comments (0)

Article on Estate & Gift Tax Valuation Outlook for 2017

Estate and gift taWilliam H. Frazier recently published an Article entitled, Estate and Gift Tax Valuation Outlook for 2017: Hearing on Proposed Regs and Other Developments, Tr. & Est. 48 (Feb. 2017). Provided below is an abstract of the Article:

Since the release of the proposed changes to Internal Revenue Code Section 2704 on Aug. 2, 2016 (the proposed regs) and until the election of Donald J. Trump on Nov. 8, 2016, wealth taxpayers, family businesses, estate planners and business appraisers thought and talked about little else other than the possible valuation ramifications of these changes to the regulations. Many read the complicated and confusing document as a thinly disguised proscription of valuation discounts. Some interpreted the document as relatively benign. Others simply weren’t sure what the Internal Revenue Service was driving at and why this was even needed. 

Unexpectedly, the proposed regs didn’t exempt U.S. farms and family businesses. This was a great surprise to taxpayers and the estate-planning community. It was well known that the proposed regs might be forthcoming, but it was generally understood that any regulatory change would exempt family businesses. That it didn’t was a huge miscalculation by the Treasury, as this allowed the opponents of the proposed regs to tap into the same populism that swept Trump into office. Many perceived the proposed regs as a message that the IRS was unfairly targeting U.S. farms and family businesses, which were already challenged by foreign competitors and beleaguered by government regulations. The IRS received over 10,000 comment letters, an unprecedented amount. Almost all of the letters were negative, and almost all cited the attack on the family business as justification for the nullification of the proposed regs. 

Also contributing to the strong reaction from taxpayers and their advisors were two terms appearing in the document that, on even a relatively careful reading, indicated that the IRS was unleashing a novel and malevolent valuation construct that would eviscerate almost all forms of estate and succession planning. “Minimum value” was a new term coined by the IRS that essentially meant “enterprise value” for (the equity of) an operating business or net asset value for an investment or holding entity. “Disregarded restriction” meant any restriction that limited the ability of the holder of the interest to liquidate at less than minimum value in less than six months for cash. So, the first impression of the proposed regs was that it eliminated all valuation discounts. This belief was made more widespread by the publication of articles by well-known estate planners and appraisers stating that, under the proposed regs, the valuation of an equity interest of any member of a family control group must be made as if it had a “deemed” put right at minimum value. 


February 24, 2017 in Articles, Estate Planning - Generally, Estate Tax, Gift Tax | Permalink | Comments (0)

Thursday, February 23, 2017

Article on the Future of the Estate Tax

Estate taxJonathan G. Blattmachr & Martin M. Shenkman recently published an Article entitled, Planning in a Time of Uncertainty: Part II, Tr. & Est. 38 (Feb. 2017). Provided below is an abstract of the Article:

The election of Donald J. Trump as President, along with a Republican-controlled House and Senate, may lead to the most radical changes to the estate tax since it was first enacted. In Part I of this two-part article, we discussed the general background practitioners should consider in evaluating the potential changes that might occur so that they can better advise their clients. That article also suggested that while the initial reaction of many clients and practitioners has been to hit the planning “pause” button and adopt a wait-and-see approach, that may not be the most optimal option. Now, we’ll further explore planning considerations. 


February 23, 2017 in Articles, Current Events, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

One of England's Most Evil Killers Is Fighting for His Right to Die

Right to dieThe Moors Murders have haunted England since the 1960s, but now, one of the killers is fighting for his right to die. Ian Brady is currently in poor health and fighting to be removed from a secure hospital back to a prison in his native Scotland. Scottish prisons do not force-feed inmates, so Brady would like the chance to refuse food and die. However, the hospital where he is currently staying claims that his chronic mental illness is keeping him from being transferred. Brady lost his first legal fight to move locations back in 2013 and his most recent one earlier this week. 

See Elizabeth Armstrong Moore, UK’s ‘Most Evil’ Serial Killer Is Fighting for Right to Die, Fox News, February 22, 2017. 


February 23, 2017 in Current Events, Death Event Planning, Disability Planning - Health Care, New Cases | Permalink | Comments (0)

What Big Mistake Are You Making in Retirement?

Living trust3Upon entering retirement, most people are planning for living costs, but what they fail to create is a will or living trust. In a recent study, 58% of adults reported not having either type of crucial estate-planning element in place. Of course, it is easy for Americans to come up with reasons not to have an estate plan, with the most common excuse being not having enough assets. Even if the excuses are true, you may be causing your loved ones unnecessary anguish. Having a will or a living trust will help to carry out your intent in the event that something unfortunate happens, so make sure to plan for those most important to you.  

See Maurie Backman, 58% of Americans Are Making This Huge Retirement Mistake, Motley Fool, February 12, 2017. 

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


February 23, 2017 in Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

Article on Common Law Trusts in Civil Law Systems

Common law trustTibor Tajti & Robert Whitman recently published an Article entitled, Common Law Trusts in Hungary and Other Continental European Civil Law Systems, 49 John Marshall L. Rev. (2016). Provided below is an abstract of the Article:

The increased intensity of global rapprochement of laws is a signature feature of the 21st century. Until the mid-20th century, very little cross-fertilization between common law and civilian systems was the rule. That has now radically changed. The latest example of common law concepts being embraced by the legal systems of Civil Law European countries is the introduction of major aspects of the common law of trusts (“CLT”). Originally CLT were considered to be a non-transplantable idiosyncratic legal institution. Later, however, a discourse began on the versatility and the economic usefulness of CLT in many settings. Starting out, discussions concerning CLT were limited to pointing out that conditional functional equivalents are offered by some European countries, such as the Germanic “Treuhand.” 

Today, the prevailing view is that CLT are not just needed by European countries, but that CLT doctrine can be made compatible with the requirements of the civilian legal tradition. The new approach is best expressed by the Draft Common Frame of Reference, Book X – which is devoted entirely to trusts. A growing number of European national laws now embrace the concept of CLT (e.g., the French “fiducie” or its Romanian replica). 

Hungary is an interesting example of a European country that has adopted major concepts of CLT doctrine, not just because it is the newest member of European countries to embrace provisions of CLT, but because it has specifically chosen to be inspired only by CLT law in spite of otherwise belonging to the Germanic legal tradition. 

CLT will undoubtedly continue to be of great interest to much of Europe. Recognition must be made that both in the United States (U.S.), and in other common law nations, there are variations in CLT, although there is agreement on its basic tenets. Given that in Hungary the gates for professional trustees were recently opened and separate licensing and prudential regulations created, that may place Hungary as a leader in expansion of the use of CLT in Europe, both for personal estate planning and for business done with the United States.


February 23, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, February 22, 2017

Article on Effects of Panama Papers on New Zealand Foreign Trusts Regime

Panama papersMark J. Bennett published an Article entitled, Implications of the Panama Papers for the New Zealand Foreign Trusts Regime, 21 NZ Assoc. Comparative L. Yearbook 27 (2015). Provided below is an abstract of the Article:

This article discusses the implications of the Panama Papers for the legal requirements concerning the disclosure of information and documents relating to offshore financial planning under the New Zealand foreign trust regime. It first identifies the nature of New Zealand foreign trusts (NZFTs) through an outline of our laws of trusts and foreign taxation. It then focusses on the current requirements for disclosure of information relating to NZFTs to authorities in New Zealand and in foreign jurisdictions, the reasoning of the Inquiry into NZFTs, and the Government's response to the Inquiry's recommendations. Finally, it briefly places the Report's conclusions in the context of the submissions it received and the wider international shift to greater transparency of financial information.


February 22, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Mother Will Give Birth to Terminally Ill Baby to Donate Her Organs

Donate organsKeri Young, an Oklahoma mother, will give birth to her terminally ill daughter and donate the newborn’s organs. Young’s baby will be born with a portion of her brain and skull missing—a condition known as anencephaly. The couple has been publicly open about their difficult decision in order to give others the strength they may need some day.  

See Mom Will Give Birth to Terminally Ill Daughter to Donate Her Organs, Fox News, February 21, 2017. 


February 22, 2017 in Current Events, Death Event Planning | Permalink | Comments (0)

Article on Hindu Succession Act 2005

Hindu succession lawShital Prakash Kharat recently published an Article entitled, Effect of Hindu Succession (Amendment) Act 2005 – Judicial Response (2017). Provided below is an abstract of the Article:

Women, since the vedic times were dominated because of the she is women. She can only live life under her husband, father, sons etc. but after certain changes in law women get various rights & privileges for living with dignity under Article 21 of the Indian Constitution. In ancient time women does not having any kind of share or ownership in fathers property because the domination of male in succession e.g. male is the head of the joint family & therefore he holds the rights to ancestral property. Hindu Succession Act 1956 originally did not gave inheritance rights in ancestral property but ask for a right to sustained/maintain from Hindu Joint family. Most effect was done in status of women in his father’s property after the Hindu Succession Act 2005 this amendment try to maintain Article 14, 15, & 21 of the constitution of India. There are certain provisions of Hindu Succession Act 1956 amended by Hindu Succession Act 2005 after this amendment various issues raised regarding interest of women in ancestral property and whether this amendment Act having a Prospective effect or Retrospective effect upon this issue Judiciary Court gave excellent interpretation or explanation for prospective effect.


February 22, 2017 in Articles, Estate Planning - Generally, Religion | Permalink | Comments (0)

How Cannabis Is Helping America's Elders

Elder marijuanaA New York City nursing home is taking unusual steps to help residents use medical marijuana as an alternative to prescription drugs. The Hebrew Home at Riverdale will allow residents to buy marijuana from a dispensary, keep the products in locked boxes in their rooms, and administer it on their own. Elderly Americans are increasingly turning to marijuana as an alternative, one with fewer side effects, for aches and pains. Additionally, in the State of Washington, as a response to demands from residents, at least twelve assisted living facilities maintain formal medical marijuana policies. However, several nursing homes and assisted living facilities are concerned about the penalties that could result from allowing residents to indulge in such practices. As research continues to progress the idea, one thing is for sure: America’s elders are increasingly exploring alternatives for fighting pain.  

See Winnie Hu, When Retirement Comes with a Daily Dose of Cannabis, N.Y. Times, February 19, 2017. 

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


February 22, 2017 in Current Events, Disability Planning - Health Care, Elder Law | Permalink | Comments (0)