Welcome to Seminar #9

1. This is it!! Holy cow – no more Adam after this seminar unless I take another one of his classes!! OMG!! Welcome to Seminar #9

2. My schedule for next term is: • I am teaching one section of PA 300-02: Real Estate Law • My class is: THURSDAY 10:00 – 11:00 p.m. EST. It is a late night one if you guys can stay up that late :)

3. So WEEK #9 is here!This semester is flying by….I hope you all have enough energy to finish strong!

4. Disclaimer from Adam :) I apologize for the technical issues with the Discussion board this week. I have reported the issue with the “dead” links to Kaplan. We will review those key terms tonight….

5. Let’s discuss what is due this week: • We have our last “real” discussion board of the semester. There is a discussion board next week (Week 10), but it is more about your opinion…. • JUST YOUR FINAL EXAM – which is due in Week 9!

6. What’s on the Final Exam…. • It is 60 questions • You have 2 hours to complete it • The questions are multiple choice, True/False, and there are also Case Study questions…. • Do you guys understand what a Case Study question is?

7. My advice for the exam is…. • Take your time AND use your textbook!! • I repeat: Take your time AND use your textbook!! • The exam is worth 180 points….so that is 18% of your overall grade. So no pressure :)

8. We had to review Chapter 9 in the textbook this week…. • Chapter 9 covers some essential provisions as well as certain unique statutes of each state. • The purpose of Chapter 9 is to introduce State-specific material with respect to estate law. • For those of you who peeked ahead….you will see in our textbook (pages 258-308) provide Execution, Administration, and Tax Information for all 50 states….

9. We will review they key terms from this week…. • So what exactly is The Uniform Law Commission (ULC), also known as National Conference of Commissioners on Uniform State Laws (NCCUSL)??

10. The National Conference of Commissioners on Uniform State Laws (NCCUSL) is a non-profit, unincorporated association commonly referred to as the U.S. Uniform Law Commission. It consists of commissioners appointed by each state, the District of Columbia, the Commonwealth of Puerto Rico and the United States Virgin Islands. The purpose of the organization is to discuss and debate in which areas of law there should be uniformity among the states and territories and to draft acts accordingly.

11. ABOUT ULC • The Uniform Law Commission (ULC), also known as National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 120th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. • ULC members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.

12. ULC • • ULC strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states. • • ULC statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government. • • ULC keeps state law up-to-date by addressing important and timely legal issues. • • ULC’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states.

13. • ULC’s work facilitates economic development and provides a legal platform for foreign entities to deal with U.S. citizens and businesses. • • Uniform Law Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service, and receive no salary or compensation for their work. • • ULC’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilizes input from legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed laws. • ULC is a state-supported organization that represents true value for the states, providing services that most states could not otherwise afford or duplicate.

14. What is the Uniform Simultaneous Death Act? • Uniform Simultaneous Death Act: If it cannot be proved that one individual survived another by a time period of 120 hours, by law that individual predeceases the other. The effect of the rule is to make each individual predecease the other. If a husband and wife are killed together, for example, in an automobile accident, each predeceases the other by law. No property passes between them at death. Their other heirs, devisees and/or beneficiaries will take their property, however that transfer is arranged.

15. Here is an example…. • The Act primarily helps to determine the heirs of a person who has died intestate. • For example, Alice and Bob are a married, retired couple with no offspring. They die in a plane crash, and it cannot be determined which person died first. Neither had executed a will, so both Alice's and Bob's families claim inheritance of the couple's estate. • The court uses the Uniform Simultaneous Death Act to resolve the dispute. In accordance with the Act, Alice is considered to have predeceased Bob, but Bob is also considered to have predeceased Alice. The inheritance is divided equally among their closest living relatives, according to degree of kinship.

16. The 120-hour period is intendedto simplify estate administration by preventing an inheritance from being transferred more times than necessary. • For example, assume that the Act does not exist. Alice dies immediately, but Bob dies in the hospital the next day. Because Bob outlives Alice, he would inherit her estate, and Bob's heirs would inherit the combined estate the next day. This would increase the legal costs involved, and cause Alice's estate to be subject to tax twice: once alone, and once as part of Bob's. • However, if tax was paid in Alice's estate, Bob's would receive a Federal Estate Tax credit for the same property transferred by Alice (state death and inheritance tax provisions may differ). Under the Act, neither inherits the other's estate, each is taxed separately, and their heirs inherit both estates once.

17. The Act may also help to resolve a life insurance case where the insured and beneficiary die in a common disaster. Different rules apply for insurance. • For example, Carol has a life insurance policy through her employer. Her husband Dave is its beneficiary. They are both killed in a car crash, dying at or near the same time. If Carol has named a secondary beneficiary in her policy, that person will receive the life insurance benefit. If Carol has not named a secondary beneficiary, then it is assumed that she outlived Dave, and the benefit is inherited through Carol's estate.

18. Here is an interesting case regarding simultaneous death…. • A 1985 Illinois case provides an example of where Simultaneous Death Act was held inapplicable because the court found it possible to ascertain who died first. • Janus v. Tarasewicz, 135 Ill.App.3d 936, 482 N.E.2d 418, 90 Ill.Dec. 599 (Ill.App. 1 Dist. 1985) arose out of a freakish series of events that began in the Chicago area in 1982. Adam Janus unluckily purchased a bottle of Tylenol capsules that had been laced with cyanide by an unknown perpetrator prior to its sale at retail. On the evening of September 29, 1982, the day of Adam's death, his brother, Stanley Janus, and Stanley's wife, Theresa Janus, having just returned from their honeymoon, gathered in mourning at Adam's home with other family members. Not yet knowing how Adam died, Stanley and Theresa innocently compounded the tragedy by taking some of the contaminated capsules themselves. Upon their arrival at the intensive care unit of a hospital emergency room, neither showed visible vital signs. Hospital personnel never succeeded in establishing any spontaneous blood pressure, pulse, or signs of respiration in Stanley and pronounced him dead. Hospital personnel did succeed in establishing a measurable, though unsatisfactory, blood pressure in Theresa. Although she had very unstable vital signs, remained in a coma, and had fixed and dilated pupils, she was placed on a mechanical respirator and remained on the respirator for two days before she was pronounced dead on October 1, 1982.

19. Case continued…. • Stanley had a $100,000 life-insurance policy that named Theresa as primary beneficiary and his mother, Alojza Janus, as contingent beneficiary. The 1953 version of the Uniform Simultaneous Death Act, in force in Illinois, provides that if there is no sufficient evidence that the insured and beneficiary have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. The Illinois Court of Appeals held the act to be inapplicable because a preponderance of the evidence established that Theresa survived Stanley, albeit by only a couple of days. The result: the proceeds of Stanley's $100,000 policy did not go to his mother, Alojza, as contingent beneficiary, but to Theresa's father, Jan Tarasewicz, as administrator of her estate.

20. How about Appointing a Guardian? • All fifty states and the District of Columbia have enacted guardianship statutes. • The North Carolina State Legislature, for example, has stated the following purpose for enacting its version: “[m]inors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to handle property or benefits to which they are entitled. Parents are the natural guardians of the person of their minor children, but unemancipated minors, when they do not have natural guardians, need some other responsible, accountable adult to be responsible for their personal welfare and for personal decision-making on their behalf.”

21. Starting in the early 1990s, a handful of states began implementing additional statutory provisions to help ensure children stay with their biological parents. • States have recognized that in many cases parents who are unable to take care of their children, but who do not wish to give their children up for adoption or to terminate their parental rights, should have the option of appointing a guardian for their children. Even in cases where the children are placed in protective state custody, and will not be returning to the home, sometimes severing all ties to their biological parents would be contrary to their best interests. Guardianship, therefore, is a viable option to parents, as it does not require the termination of parental rights, but gives the guardian legal rights to the child and removes the state agency from the lives of the family.

22. Guardianships then can be used to appoint a legal representative for a child, as an alternative to adoption or as a temporary means of caring for a child when a parent is unable to do so.

23. A guardian is a court-appointed decision-maker who is responsible for the ward's physical well-being. Generally, a guardian may be appointed for any person whose mental capacity or lack of capacity prevents them for caring for themselves, providing for shelter, food, clothing, medical care or other necessities of life. The incapacitated person or child is typically referred to as the “ward.” The guardian has approximately the same responsibilities for and authority over the ward in a full guardianship appointment as a parent has for a small child, except a guardian does not have the duty to supply funds to support the ward. Guardianship may be fashioned to precisely what is needed for the ward in question. Courts have a duty to fashion a guardianship to the least restrictive alternative based upon all the facts and circumstances.

24. Parents have three different options to select the person who will have legal authority for the child - by petition, by testamentary will, and, most recently, through a process appropriately termed “standby guardianship.” • The first method, commonly called, guardianship by petition or “traditional guardianship,” is initiated when a parent petitions the court to have a person of his or her choosing serve as the guardian of the minor child. Depending on the particular state statute, the court has the power to appoint a guardian for a child on a limited, temporary or permanent basis. The parent's choice, however, is limited to the court's mandate that the appointment must serve the best interests of the child. Thus, there is no guarantee that the court will uphold the parent's choice of a guardian. Furthermore, while traditional guardianship permits a living parent to establish guardianship for the child, it does not allow the parent to retain his or her guardianship rights; traditional guardianship would require the parent to relinquish all parental rights and perhaps even physical custody of the child.

25. The second method, through a testamentary designation of a guardian, is perhaps the most commonly method used to appoint a guardian. A guardian who is appointed by a parent using this method becomes the guardian only upon the death of the parent. The guardian may be designated by will “either jointly by both parents or by a single parent if only that parent is living at the time of the will.” A single parent cannot establish guardianship by will unless he or she is the sole surviving parent. In some states, if the other parent is living at the time the first parent makes the testamentary designation, then that designation is invalid or “at best serves only as a testamentary nomination of a guardian.”

26. Standby Guardianship - allows a parent to make permanent plans for his or her child without relinquishing custody or other parental rights. When single parents with a life-threatening disease are unable to care for their children, the lack of a “back up” guardian becomes critical. Therefore, a standby guardian statute gives such parents the authority to appoint a guardian to act as co-guardian or guardian upon the occurrence of a triggering event, which, generally, is defined as, “[a] specified occurrence stated in the designation which empowers a standby guardian to assume the powers, duties and responsibilities of guardian or co-guardian.”

27. And here are a few questions to cover…. • Which states permit Holographic Wills? • A holographic will is a will and testament that has been entirely handwritten and signed by the testator. • Holographic wills are common and are often created in emergency situations, such as when the testator is alone, trapped, and near death.

28. United States jurisdictions that recognize holographic wills: • The question should actually be which states DO NOT allow holographic wills, as the majority of states allow them. • The following states allow Holographic Wills…. • Alaska, Arizona & Arkansas with 3 witnesses, California, DC, Florida, Idaho, Kansas, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, Washington, and West Virginia.

29. Which States require 3 witnesses to a Will? • Just Louisiana • New Hampshire used to require 3 witnesses • Vermont only requires 1 witness

30. In what states can a Minor be a Testator and establish their own will? • Georgia is 14 and older • Louisana is 16 and older • Florida & Idaho make specific provisions that Emanicpated Minors may create their own will.

31. What states require more than 2 witnesses to a Will? • Louisiana requires both attestation by two witnesses as well as notarization by a notary public.

32. That’s all folks! • Thank you all for a great semester! Finish strong! Email, call or text with any questions – and keep in touch! • Adam, (610) 745-7653