Wednesday, October 22, 2014

Possible Effects of New Scientific Research on End-of-Life Cases

Scientists at the University of Cambridge have discovered that some patients diagnosed as being in a persistent vegetative state can have "hidden brain signatures" of consciousness, even when the patient has the appearance of being in an unconscious state. 

Specifically, the study found the following:

"Although unable to move and respond, some patients in a vegetative state are able to carry out tasks such as imagining playing a game of tennis, the scientists note. Using a functional magnetic resonance imaging (fMRI) scanner, researchers have previously been able to record activity in the pre-motor cortex, the part of the brain that deals with movement, in apparently unconscious patients asked to imagine playing tennis."

Scientists hope to use this "tennis test" to figure out which ostensibly vegetative patients may in fact have some conscious awareness. This may be a new consideration to take into account in the writing of advance directives. 

Wednesday, September 24, 2014

Putting a Price on Priceless Art for Your Estate Plan


This week’s Wall Street Journal covers a topic all of us have probably worried about 
sometime or other: how to account for a $10 million Rembrandt in our estate plan. Fortunately, there are steps to take to ensure that our wishes are met and our tax burden is minimized. First off, one must be careful not to sidestep the law. If beneficiaries simply walk into a decedent’s home and pull artwork off the wall before an estate clears probate, they can be held criminally liable.

Another item to bear in mind is that one must account for the value of artwork when designating beneficiaries. For example, if half of your $20 million estate is that $10 million Rembrandt, and you choose to leave it to Susie and the rest of your estate to Charley, Charley may get stuck with a tax hit for the painting. In a case like this, the will should specify that each party must pay his or her share of the estate tax.

For a more in-depth treatment on the matter, you can consult the article here.

Wednesday, September 10, 2014

A New Estate Tax Proposal to Address Wealth Inequality

          Bernie Sanders, an independent senator from Vermont, has published a new opinion piece in the Huffington Post addressing the need for increased estate taxes for the wealthiest Americans. Sanders believes that new estate tax laws are needed to reduce income inequality in the United States, and he cites a number of statistics to support his cause, such as the fact that the top one percent owns about 37 percent of our nation’s total wealth, while the bottom 60 percent owns only 1.7 percent. In addition to wealth disparity, Sanders points out that income gains have unevenly benefited the already affluent, with 95 percent of all gains going to the top 1 percent since 2008.

Greater estate taxes on the rich, Sanders argues, would not only reduce wealth inequality, but lower the national debt and raise money for investments in infrastructure and education. His proposal includes a tax rate of 40 percent for estates worth over 3.5 million, 50 percent for estates worth more than $10 million and less than $50 million, and 55 percent for estates worth more than $50 million. Additionally, there would be a billionaire’s surtax of 10 percent, which would be applicable to the less than 500 American families whose combined wealth totals over $2 trillion. The first $3.5 million of an individual’s estate would be exempt from taxes, meaning that 99.7 percent of Americans would not have to pay an estate tax. 


Thursday, July 24, 2014

Access to Digital Assets After Death Is About to Get Easier

Digital assets can be a thorny issue for estate planning. Probate law has not kept up with technology, and often fails to resolve who is able to access digital assets such as email accounts. This digital conundrum may be on the verge of a solution.

The Uniform Law Commission recently approved a Uniform Fiduciary Access to Digital Assets Act. As the name implies, the act would allow fiduciaries such as estate executors and trustees to have access to digital assets belong to the persons they represent. The Uniform Act solves the problem of who can access digital assets by using the concept of "media neutrality."

Media neutrality works by analogizing digital assets to tangible ones. If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset.

The Act has received a positive response from some corners, but other observers have concerns. For instance, Gerry Beyer at the Wills Trusts and Estates Prof Blog worries that media neutrality may override the deceased's wishes and make private information public.

The Act would make digital assets accessible to fiduciaries by default. But it would also allow account holders to affirmatively maintain their privacy. It defers to an account holder's privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement.

Whether the Act would simplify estate planning in the digital age or create more headaches remains to be seen. Because the Act is only a model code, no one knows for sure how media neutrality will play out, and we won't find out until a state adopts the Act into law.

Tuesday, June 3, 2014

Florida Court Considers Whether Human Remains Are Estate Property


Juan Antúnez of the Florida Probate & Trust Litigation Blog reports on an odd case out of Florida. A father wants his deceased son's ashes declared property and divided between him and the deceased's mother along with the rest of the deceased's estate.

Twenty-three-year-old Scott Wilson died in 2010. His divorced parents agreed to cremate his remains, but have yet to agree on what to do with the ashes. Deadlocked in court, Wilson's father suggested a compromise to the court: split the ashes between him and Wilson's mother so that each could choose where to bury part of Wilson's remain. To make the compromise work, Wilson's father argued that the ashes were property includable in Wilson's estate and subject to partition between Wilson's father and mother.

The court rejected the property argument. The issue was one of first impression for the court, and the judge turned to English common law for an answer, quoting from Blackstone for the proposition that human remains are beyond the reach of property law. 

The facts of this particularly case may be odd, but disputes over the remains of a deceased family member are not uncommon. According to Antúnez, the real problem in the Wilson case is the lack of any "mechanism under Florida law for resolving the kind of burial dispute represented by this case." 

For an answer, Antúnez points to the article Uniform Acts-Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law. This article "provides a detailed, well-researched and thoughtful proposed statute from beginning to end."

Uniform Acts-Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law, written by Western New England University School of Law student Tracie Kester, won the 2006 William J. Pierce Award from the National Conference of Commissioners on Uniform State Laws.

Tuesday, May 20, 2014

Delaware Bill Seeks to Resolve Issue of Access to Digital Assets after Death

Delaware Public Media reports that the Delaware General Assembly is considering a new bill that would give estate executors access to the deceased's digital accounts. The bill, introduced by Rep. Darryl Scott (D-Dover), would require Internet companies to surrender control of a user's accounts to persons named in the user's will. The companies would have 30 days to grant access after receiving an executor's request, or they would face civil penalties.
The bill would prevent digital assets from being lost by Internet providers deactivating accounts after a user's death and against the user's wishes.

In response to privacy concerns, Rep. Scott emphasized that the proposed bill has built in safeguards. "People can designate assets that they don’t want to be included as part of their estate,” Scott said. So if you don't want people to read your email after you die, you can exclude the account from your estate.

If approved, the Delaware bill will be the first comprehensive law of its kind. Seven other states grant different levels of access.

Tuesday, May 6, 2014

Crowdfunders Pass on Estate-Planning Game

In April the ABA Journal reported on a lawyer seeking crowdfunding for an estate-planning game. The lawyer behind the game is Stephanie Kimbro, an estate-planning practitioner and pioneer in law practice technology. The game is Estate Quest, a mystery/time-travel adventure where players take on the role of a detective who investigates the cases of people who died without estate plans. By traveling into the decedents' past, players uncover clues about what should have been included in the missing estate plans.


Kimbro sought crowdfunding throught Rockethub.com. According to her blog, Virtual Law Practice, Kimbro went the crowdfunding route because she wanted to "make this a game that’s free for the public to play and learn about some basic estate planning concepts. I’m also doing this to learn about how the crowdfund process might be used for other legal services related projects."

What Kimbro may have learned about crowdfunding is that the crowd isn't interested in educational legal games. The funding period for Estate Quest ended on May 1, and the project received $2,110, well short of the $20,000 that Kimbro requested.