Ever since the graduated probate fee was declared unconstitutional in Estate of Claeyssens (2008) 161 CA4th 465, the legislature has been nickel-and-diming estate planners and their clients with filing fees. Now we have to deal with multiple fees for lodging wills, which used to be free.
Update May 22, 2012: The U.S. Supreme Court has held that posthumously conceived children are not automatically entitled to receive social security survivor benefits. Astrue v Capato (May 21, 2012, No. 11-159). From now on, the availability of survivor benefits will depend on state statutes and case law in jurisdictions with no statutes. See Knaplund, The New Biology: What Do Estate Planners Need to Know About Assisted Reproduction?, Estate Planning 2011, chap 3.
The brave new world is here, and has raised a legal issue few saw coming: Should posthumously conceived children — meaning those conceived through in vitro fertilization after the biological parent has died — be eligible for Social Security survivor benefits even if they could not inherit from the parent under state law? There’s now a split of authority on this issue, with the Ninth Circuit having held that they may be eligible, and a divided panel of the Fourth Circuit recently ruling that they are not. Schafer v Astrue (4th Cir 2011) 641 F3d 49. Onward to the Supreme Court!
Remember the rule against perpetuities from law school? Although the rule against perpetuities is often associated with famous old English cases, it is actually a modern problem. As reported by the ABA Journal, the rule recently played out when the heirs of a “cantankerous Michigan lumber baron” finally reached the end of a $100 million waiting game for his estate, 92 years after his death. The rule may be old, but it still applies and California attorneys need to know how it works in this state.
Family lawyers and estate planning attorneys operate quite independently of one another. Each discipline is complex, and its practitioners are specialized to the point that it may be unreasonable to expect attorneys to be fully versed in both areas. But it is important for attorneys to recognize that their advice and actions in one context for one purpose may well have significant implications for the other. It is important for attorneys in both specialties to educate themselves about Automatic Temporary Restraining Orders (ATROs), which are integral to family law, but may also have a significant impact on estate planning.