Wills, Trusts & Estates Prof Blog

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

Tuesday, May 24, 2016

Who Controls the Disposition of a Decedent's Remains?


Burial fightKyril Faenov did not make his desires known with respect to the disposition of his remains after death. His widow arranged to bury him at a cemetery in Seattle. However, his mother wanted to exhume his remains and place them in Oregon, and she petitioned the court for permission. The court denied the petition, stating that in absence of testamentary intent, the statutory kinship hierarchy controls such disposition for a decedent’s remains.

            The General Cemetery Act permits the control of human remains to vest in kinship priority, placing the surviving spouse above a surviving parent. Further, the court noted that the right to control burial circumstances that vest is a perpetual right. One that his widow enjoys unshared statutory priority in.

See Julianne Tobin Wojay, Mom Can’t Disinter Son’s Body Without Widow’s OK, May 18, 2016.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

May 24, 2016 in Death Event Planning, Estate Planning - Generally | Permalink | Comments (0)

The Humorous Steps on How To Prepare a Will

HowtopreparewillWhen we think about preparing a will, we think about a somber, reflective experience. One where you identify your assets, name beneficiaries, and assign fiduciary duties. But does it all have to be so serious? We can certainly find some humor in accumulating enough garbage to make having a will upon your inevitable death worth it. And hey, who knows, maybe you want your remains poured out on the final drop of Splash Mountain.

See How To Prepare a Will, The Onion, May 18, 2016.

May 24, 2016 in Estate Planning - Generally, Humor, Wills | Permalink | Comments (0)

Article on Estate Tax and Combating Wealth Inequality

Goldburn+P.+Maynard+Jr.Goldburn P. Maynard Jr. recently published an article entitled, Perpetuating Inequality by Taxing Wealth, 84 Fordham L. Rev. 2429 (2016). Provided below is an abstract of the Article:

            Proposals to “fix” the estate tax by making it both more far-reaching and meaningful are plentiful. While these suggested improvements are reasonable, and even modest, they have failed to confront an important part of Graetz and Shapiro’s book, Death by a Thousand Cuts: stories trump science. This Article attempts to correct this shortcoming in the progressive argument by returning narrative to its central place in the estate tax debate. Drawing on psychological insights, I hope to underscore the difficulty of the effort to preserve progressive taxation and combat wealth inequality. I argue that the proposals have not confronted the underlying narratives that estate tax abolitionists have advanced. I use System Justification Theory to explain the entrenched and persistent nature of these narratives.



May 24, 2016 in Articles, Estate Planning - Generally, Estate Tax | Permalink | Comments (0)

Article on Will Practices of Gays and Lesbians

MonkDaniel Monk recently published an article entitled, 'Inheritance Families of Choice'? Lawyers' Reflection on Gay and Lesbian Wills, Journal of Law & Society, Vol. 43, Issue 2, pp. 167–94 (2016). Provided below is an abstract of the Article:

            This article presents the findings of research about the will‐writing practices of gays and lesbians. It develops a conversation between sociological literature about ‘families of choice’, which is silent about inheritance, and socio‐legal research about ‘inheritance families’, which is relatively silent about sexuality. It demonstrates how research with lawyers can contribute to thinking about inheritance and complement historical archives about personal life and sexuality. Focusing on funeral rites, partners, ex‐lovers, friendships, children and godchildren, and birth families, the findings reveal how gay men and lesbians have used wills to communicate kinship practices in ways that both converge with and differ from conventional testamentary practices. Examining the findings through the concepts of generationality, family display, connectedness, and ordinariness, and locating them within the recent history of social and legal changes, it complicates and troubles both anti‐normative and individualistic readings of the choices gay and lesbians make in constructing their ‘inheritance families’.

May 24, 2016 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Monday, May 23, 2016

Article on Estate and Gift Tax Reform

Bridget_Crawford_1Bridget J. Crawford recently published an article entitled, Valuation, Values, Norms: Proposals for Estate and Gift Tax Reform, Boston College Law Review, Vol. 57 (Forthcoming). Provided below is an abstract of the Article:

            In their contributions to the Symposium on The Centennial of the Estate and Gift Tax, Professor Joseph Dodge, Professor Wendy Gerzog, and Professor Kerry Ryan offer concrete proposals for improving the existing estate and gift tax system. Professor Dodge and Professor Gerzog are especially interested in accuracy in valuation, and advance specific proposals with respect to split-interest transfers and family limited partnerships. Professor Dodge makes an additional proposal to improve the generation-skipping transfer tax system, an understudied area of the law. Professor Gerzog’s Symposium contribution draws particular attention to the legal fiction on which the estate and gift tax marital deductions rely. She would restrict the availability of the deduction to only meaningful economic transfers to a spouse, consistent with a desire that tax results reflect the underlying substantive results. Professor Ryan also focuses on the estate and gift tax marital deduction, along with other wealth transfer tax benefits available to spouses. She imagines an expansion of those rules, showing how easily the law can be separated from economic substance. These authors' proposals are technically expert, relevant to the legislative and regulatory regime that taxpayers face daily, focused on solutions, and deeply engaged in understanding how well the law meets its goals.

May 23, 2016 in Articles, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (0)

Article on Importance of Estate Tax

Graetz_michaelMichael J. Graetz recently published an article entitled, 'Death Tax' Politics, Boston College Law Review, Vol. 57 (Nov. 2016). Provided below is an abstract of the Article:

            In his Keynote Address “Death Tax” Politics at the October 2, 2015 Boston College Law School and American College of Trust and Estate Counsel Symposium, The Centennial of the Estate and Gift Tax: Perspectives and Recommendations, Michael Graetz describes the fight over the repeal of the estate tax and its current diminished state. Graetz argues that the political battle over the repeal of the estate tax reflects a fundamental challenge to our nation’s progressive tax system. This Address concludes that a revitalized estate tax is important for managing the national debt and reducing massive inequalities in wealth.

May 23, 2016 in Articles, Estate Planning - Generally, Estate Tax, Gift Tax | Permalink | Comments (0)

Article on Succession by Survivorship Under Hindu Succession Act, 1956

HinduG. V. Mahesh Nath recently published an article entitled, Survivorship and Intestate Succession — Understanding the Difference Between Section 6 and 8 of Hindu Succession Act, 1956, available on SSRN. Provided below is an abstract of the Article:

            The Hon'ble Supreme Court in decision between Uttam v. Saubhag Singh and other has summarized the law, insofar as it applies to joint family property governed by the Mitakshara school, prior to the amendment of 2005. This article analysis the case of Uttam with regard to succession by survivorship and intestate under the Hindu Succession Act, 1956.

May 23, 2016 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Sumner Redstone's Competency at Issue

Sumner Further competency questions about Sumner Redstone are arising after he suddenly changed the succession plan for his $40 billion media empire. Mr. Dauman and two other Viacom directors asserted that Redstone’s competency along with his daughter’s manipulation caused him to oust Mr. Dauman and George Abrams, both Viacom executives and members of the board of National Amusements, from the trust.

 Sumner’s daughter, Shari Redstone, is being accused of influencing her father to gain control of his companies. Worried about such inconsistency with his intent, both sides presented evidence to prove Sumner’s competency and any undue influence. Not all influence is undue, however, it depends on Ms. Redstone’s motive—does her desire to influence meet her own needs or her father’s. This question along with many more will help to determine Sumner’s civil competence.

See Emily Steel, New Questions Arise Over Sumner Redstone’s Competency After He Alters Trust, New York Times, May 21, 2016.

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

May 23, 2016 in Current Events, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, May 22, 2016

Tom Benson Leaving Nothing to His Daughter and Grandchildren

Tom bensonTom Benson has expressed his intent to leave nothing to his daughter or grandchildren due to their continuing hostility. He further wishes to have his third wife, Gayle, become the successor to his business empire, taking sole control of the Saints and Pelicans. Consequently, the scorned heirs tried to declare his incompetency along with undue influence from his wife, alleging memory lapses and mistaken identity. This lawsuit was rejected. They hope for a further opportunity to bring these issues to light.

See Mike Triplett, Saints/Pelicans Owner Tom Benson Wants ‘Zero’ Left in Trust to Daughter, Grandchildren, ESPN, May 20, 2016.

May 22, 2016 in Current Events, Estate Planning - Generally | Permalink | Comments (0)

Article on Estate Funding

YaacovPaige K. Ben-Yaacov recently published an article entitled, Explaining Estate Funding with Hands-On Examples, Probate & Property, May/June (2016). Provided below is a summary of the Article:

            This Article discusses certain estate funding calculations, timing issues relating to estate funding, and various provisions that executors and beneficiaries of estates may wish to include in funding agreements.

            The Article will focus on issues that arise when funding GST trusts—the rationale behind the funding requirements and the means of satisfying them. The timing section of the Article addresses why the representative of the estate may wish to wait until IRS matters have been solved before distributing assets to the beneficiaries. Finally, the Article will discuss the issues that must be dealt with in a funding agreement.

May 22, 2016 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)